State v. Allen

• Decision Date: 17 September 1992
• Docket Number: No. 9636,9636
• Citation: 28 Conn.App. 81,611 A.2d 886
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Howard ALLEN.

Page 886

611 A.2d 886

28 Conn.App. 81

STATE of Connecticut v. Howard ALLEN.

No. 9636.

Appellate Court of Connecticut.

Argued April 28, 1992.

Decided June 30, 1992.

Certification Denied Sept. 17, 1992.

Susan B. Marhoffer, Special Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Stephen J. Sedensky III, Asst. State's Atty., for appellee (state).

Before FOTI, LANDAU and HEIMAN, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of the trial court, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1). ¹ In his appeal, the defendant sets forth two claims. He first claims that the cumulative effect of numerous trial errors, including (1) the trial court's instruction that the state seeks only the conviction of the guilty, (2) the trial court's failure to instruct the jury on the defense of intoxication, (3) outbursts by one of the state's witnesses while testifying, and (4) the admission of autopsy photographs, resulted in the denial of his constitutionally guaranteed right to a fair trial. The defendant also claims that the evidence presented at trial was insufficient as a matter of law to sustain his conviction of manslaughter in the first degree. We disagree with both of the defendant's claims.

The jury could reasonably have found the following facts. In the afternoon and evening of October 21, 1989, the defendant, the victim and several other individuals were drinking and smoking crack cocaine in the Bridgeport apartment of the victim's brother. During the afternoon, the defendant, the victim and two of the victim's female cousins were drinking, listening to records and dancing in the victim's bedroom. At some point during either the afternoon or early evening, the defendant left the apartment to purchase more alcohol and the victim and one of his cousins went to a local bar. All returned to the apartment sometime that evening and continued to consume alcohol in the kitchen of the apartment. At approximately 10 p.m. that evening, a fight ensued between the defendant and the victim over the defendant's crude conduct toward the victim's two cousins. The victim repeatedly asked the defendant to leave. The defendant refused.

The defendant lunged at the victim but was intercepted by the victim's cousins. He shoved the women away, grabbed a pot that was drying on the kitchen counter and threw it at them. He then pulled a knife out of his back pocket and stabbed the victim twice, once in the chest and once in the stomach. The victim fell to the floor between the kitchen and the adjoining hallway and the defendant jumped on top of him and stabbed him a third time. The third stab wound was also to the chest. The defendant then returned to the kitchen, wiped off the knife and put it back in his pocket, grabbed his jacket and fled from the apartment. Two days later, the defendant learned of the victim's death and surrendered to the police. The defendant was subsequently charged with and convicted of manslaughter in the first degree. He was sentenced to twenty years of incarceration.

The defendant first raises a four part claim pertaining to the constitutionally guaranteed right to a fair trial. U.S. Const., amend. XIV. Part one of this claim involves the trial court's instruction that the state seeks the conviction of only the guilty. The defendant's claim regarding this instruction was not raised at trial. The defendant, therefore, seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that this claim must fail because the defendant has failed to meet the third prong of State v. Golding, supra, at 240, 567 A.2d 823, that the alleged constitutional violation "clearly exists and clearly deprived the defendant of a fair trial" and does not constitute plain error. Practice Book § 4185.

"Where a defendant neither requests a specific instruction nor objects to the instruction that was given, reversal is warranted only if the defendant demonstrates that he was deprived of a fundamental constitutional right or that there is plain error. Practice Book § 4185; State v. Grullon, 212 Conn. 195, 211, 562 A.2d 481 (1989); State v. Preyer, 198 Conn. 190, 196-97, 502 A.2d 858 (1985)." State v. McFadden, 25 Conn.App. 171, 176, 593 A.2d 979 (1991). "Our review of the defendant's claim is guided by the established rule that jury instructions are not to be subjected to microscopic examination with an eye toward discovering possible inaccuracies. Rather, we consider whether it was reasonably possible that the charge as a whole misled the jury. State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991)." State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991).

The defendant directs our attention to the following language in the trial court's charge to the jury: "The state of Connecticut and its people look to you as sworn officers of the court to deal with this case fairly, firmly and honestly as strong minded men and women and with the interest placed in your hands as an arm of the court to aid and uphold the law of the land by rendering a verdict of guilty if the facts and the law require such a verdict. The state does not desire the conviction of innocent people or of any person whose guilt upon the evidence is in the realm of reasonable doubt." (Emphasis added.) The defendant argues that this statement deprived him of his constitutional right to have the state prove every element of the charged offense 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. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990); State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1983); in that it shifted to the defendant the burden of proving his innocence. We disagree.

After a review of the court's charge as a whole, we conclude that the court's instructions could not possibly have misled the jury. See State v. Tweedy, 219 Conn. 489, 510-11, 594 A.2d 906 (1991); State v. Anderson, supra, 212 Conn. at 38, 561 A.2d 897. The court did not instruct that the state prosecutes only guilty people, but rather that the state requires the conviction of only the guilty. Moreover, the court thoroughly informed the jury of the defendant's presumed innocence and that the state bore the burden of proving the defendant's guilt beyond a reasonable doubt. Viewing the charge as a whole, we conclude that there is no reasonable possibility that the jury was misled regarding the burden of proof. Thus, the defendant has failed to satisfy the third Golding condition by demonstrating that any alleged constitutional violation "clearly exists and clearly deprived the defendant of a fair trial...." State v. Golding, supra. Necessarily, then, this claim must fail.

We decline to review the second and third portions of this first claim, regarding the trial court's failure to instruct the jury on the defense of intoxication and the outbursts by one of the state's witnesses during his testimony, because these challenged action were never raised at trial, the defendant has not sought appellate review pursuant to State v. Evans, supra, and State v. Golding, supra, and these claims do not implicate the plain error doctrine of Practice Book § 4185. It is not this court's practice or obligation to review an inadequately preserved claim where the challenged action does not constitute plain error. See State v. Johnson, 26 Conn.App. 433, 438-39, 602 A.2d 36 (1992), citing State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986), and State v. Maisonet, 16 Conn.App. 89, 97, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086 (1988), cert. denied, 489 U.S. 1014, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989).

"The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court." Practice Book § 4185. "Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); see also State v. Jeffrey, 220 Conn. 698, 710-11, 601 A.2d 993 (1991); State v. Ortiz, supra, 217 Conn. at 659-60, 588 A.2d 127; State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990). The errors claimed here do not merit such review.

We next turn to the final portion of the defendant's first claim, that the trial court improperly permitted the state to introduce an autopsy photograph of the victim. At trial the defendant argued that the court should not admit the autopsy photograph of the victim into evidence because "it seems to highlight the location of the wounds and it exacerbates the situation by showing the presence of the wounds." The state argued that the photograph was material to show the defendant's intent to cause serious physical injury, which was an element of the state's burden of proof. See, e.g., State v. McKenna, 11 Conn.App. 122, 138-39, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987).

In State v. DeJesus, 194 Conn. 376, 481 A.2d 1277 (1984), our Supreme Court discussed extensively the rules pertaining to the admissibility of photographic evidence and held that photographic evidence is admissible where the photograph has "a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. Note, 73 A.L.R.2d 769, 787." State v. DeJesus, supra, at 381, 481 A.2d 1277. The court also noted that there is no requirement in this state that a potentially inflammatory photograph be essential to the state's case in order for it to be admissible; rather, "the test for...