State v. Allen

• Decision Date: 24 November 1987
• Docket Number: No. 13113,13113
• Citation: 205 Conn. 370,533 A.2d 559
• Parties: STATE of Connecticut v. Lester M. ALLEN.
• Court: Connecticut Supreme Court

Page 559

533 A.2d 559

205 Conn. 370

STATE of Connecticut v. Lester M. ALLEN.

No. 13113.

Supreme Court of Connecticut.

Argued Sept. 29, 1987.

Decided Nov. 24, 1987.

Martin Zeldis, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty., and Jonathan C. Benedict, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and GLASS, JJ.

ARTHUR H. HEALEY, Associate Justice.

After a jury trial, the defendant, Lester M. Allen, was found guilty of assault in the first degree in violation of General Statutes § 53a-59(a)(1), assault on a peace officer in violation of General Statutes § 53a-167c(a)(1), attempted murder in violation of General Statutes §§ 53a-54a(a) and 53a-49, and having a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant was sentenced to a prison term of not less than twenty years and not more than thirty years. ¹ The defendant appealed to the Appellate Court which affirmed the convictions. State v. Allen, 9 Conn.App. 169, 517 A.2d 1043 (1986). This court granted the defendant's petition for certification. ²

The sole question presented by this appeal is whether the Appellate Court erred in failing to find an abuse of discretion when the trial court permitted the state to reopen its case after it had rested and after the defendant's motion for judgment of acquittal had been denied. We reverse the Appellate Court and remand to that court to remand to the trial court with direction to render a judgment of acquittal on the charge of having a weapon in a motor vehicle.

The jury could reasonably have found the following facts: On September 20, 1980, officer Thomas Masterson of the Stratford police department observed a car with an expired registration. After the officer had stopped the defendant's car and as the officer was exiting his patrol car, the defendant took a gun from his pocket and fired a total of four shots before fleeing the scene. The defendant was found and arrested in Georgia three years after the incident.

The following background facts that occurred at trial are not in dispute. In the substitute information, the state charged that the defendant "did knowingly have in a motor vehicle occupied by him, a certain pistol, without a legal permit therefore [sic]" in violation of General Statutes § 29-38. After the state had rested its case, the defendant moved for judgment of acquittal on the charge of having a weapon in a motor vehicle, claiming that the state had not established a prima facie case under § 29-38. ³ The defendant at that time argued that the state had failed to establish that the weapon was a pistol within the meaning of the statute by failing to offer any evidence on the length of its barrel. See State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977). Under General Statutes § 29-27, ⁴ which controls § 29-38, a pistol or revolver is a firearm having a barrel of less than twelve inches in length. The defendant was apparently confused about the applicable statute, claiming that General Statutes § 53a-3(18) ⁵ governed the definition of a pistol for violations of § 29-38. This apparent confusion makes no real difference because the definition of a pistol or revolver is exactly the same under both statutes: it is a firearm with a barrel less than twelve inches in length. Thus, although the defendant did not cite the applicable statute, he correctly stated the law on that issue. The state also had overlooked the applicability of § 29-27 but argued that no definition of a pistol or revolver applied and asserted that having any weapon in a motor vehicle without a permit violated § 29-38. The court agreed with the state and denied the defendant's motion.

On the next court day, before the defendant had begun to present his case, the state moved to reopen its case-in-chief in order to present evidence on the length of the barrel of the firearm. In its argument to reopen, the state claimed that although the defendant's argument was incorrect, the state nevertheless was "hedging [its] bet" because "[the state was] afraid the Supreme Court may determine that the penal code definition of pistol should be grafted on to the weapon in a motor vehicle statute ... and [it would] rather be safe than be sorry." Accepting this argument, the court granted the motion over the defendant's objection and Masterson, the victim of the shooting who had testified earlier, then testified that the barrel length was approximately two inches.

The defendant argues that the trial court's decision to allow the reopening of the state's case-in-chief violated the double jeopardy provision of the fifth amendment to the United States constitution and was an abuse of its discretion. Although the defendant claimed in his brief that the denial of his motion for judgment of acquittal implicated the prohibition against double jeopardy, he conceded at oral argument before us that the entire issue was better analyzed as a claim of an abuse of discretion. The defendant maintains that to permit the state to reopen its case-in-chief after the defendant has pointed out in his motion for judgment of acquittal the specific particulars why the state had failed to present a prima facie case rewards the state for its "laxity" and in practical effect turns the defendant's attorney into a prosecutorial arm of the state.

The state, on the other hand, although it agrees that a defendant might be penalized by a timely and meritorious motion for judgment of acquittal, asserts that the reopening in this case filled an evidentiary gap which contributed to "the search for facts and truth" and is, thus, perfectly proper. State v. Allen, supra, 9 Conn.App. at 174, 517 A.2d 1043.

The Appellate Court agreed with the defendant that the state had the burden to prove that the firearm met the statutory definition of a pistol. Id., 172, 517 A.2d 1043, citing State v. Brown, supra, 173 Conn. at 260, 377 A.2d 268. Noting that the pistol itself was not in evidence, the Appellate Court held that "initially '[t]he state failed to introduce any evidence upon which the jury could find that the barrel of the firearm was in fact less than twelve inches in length.' " State v. Allen, supra.

The Appellate Court recognized that the defendant was "in a sense penaliz[d]" by making such a motion and that a reopening could discourage him from doing so and could encourage him to wait to make such a motion until the last available moment in hopes that the missing evidence became unavailable. Id., 9 Conn.App. at 174, 517 A.2d 1043. The court, however, also maintained that " ' "a trial is not a game of technicalities, but one in which the facts and truth are sought." Eskridge v. State, 258 Ind. 363, 369, 281 N.E.2d 490 (1972).' " State v. Allen, supra, quoting State v. Zayas, 195 Conn. 611, 623, 490 A.2d 68 (1985) (Healey, J., dissenting).

Balancing these two competing concerns, the Appellate Court relied on the "traditional rule" that either party may present omitted or further evidence " ' "when mere inadvertence or some other compelling circumstance ... justifies a reopening and no substantial prejudice will occur." ' (Emphasis added.) [ State v. Brigandi, 186 Conn. 521, 546, 442 A.2d 927 (1982) ], quoting United States v. Hinderman, 625 F.2d 994, 996 (10th Cir.1980)." State v. Allen, supra, 9 Conn.App. at 175, 517 A.2d 1043. The Appellate Court attributed the state's failure to introduce evidence of the length of the gun barrel to the state's own misperception, compounded by a different misperception by the defendant. Id., 176, 517 A.2d 1043. That court concluded that these circumstances demonstrated that the state's evidentiary failure was inadvertent and that this case presented a compelling circumstance for granting the motion to reopen. Id. The Appellate Court also ruled that the defendant suffered no "legal prejudice." Id.

We begin our analysis by recognizing the fundamental concept that the state has the burden of proving every element of an alleged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978). The defendant's presumption of innocence until proven guilty is an "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 402, 39 L.Ed. 481 (1895). A criminal defendant has the right to put the state to its burden and need not defend until and unless the state has presented a prima facie case. "The defendant, under our Constitution, need not do anything at all to defend himself, and certainly he cannot be required to help convict himself." Williams v. Florida, 399 U.S. 78, 112, 90 S.Ct. 1893, 1912, 26 L.Ed.2d 446 (1970) (Black, J., dissenting). " 'One of the greatest safeguards for the individual under our system of criminal justice is the requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense. "Ours is the accusatorial as opposed to the inquisitorial system.... Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation." ' Cephus v. United States, 324 F.2d 893, 895 (D.C.Cir.1963), quoting Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347 [1350], 93 L.Ed. 1801 (1949)...." State v. Rutan, 194 Conn. 438, 443, 479 A.2d 1209 (1984).

In this case, the state failed to introduce any evidence as to the length of the barrel of the pistol, admittedly an essential element of the crime of having a...