State v. Anderson

• Citation: 561 A.2d 897,212 Conn. 31
• Decision Date: 04 July 1989
• Docket Number: No. 13302,13302
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Tobias ANDERSON.

Page 897

561 A.2d 897

212 Conn. 31

STATE of Connecticut v. Tobias ANDERSON.

No. 13302.

Supreme Court of Connecticut.

Argued March 29, 1989.

Decided July 4, 1989.

Martin Zeldis, Asst. Public Defender, for appellant (defendant).

Mary H. Lesser, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Dennis O'Connor, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The defendant was charged in a substitute information with two counts of kidnapping in the first degree, in violation of General Statutes § 53a-92(a)(2)(B); ¹ one count of attempted sexual assault in the first degree, in violation of General Statutes §§ 53a-49(a)(2) and 53a-70(a); ² two counts of sexual assault in the first degree, in violation of General Statutes § 53a-70(a); and one count of attempted robbery in the first degree, in violation of General Statutes §§ 53a-49(a)(2) and 53a-134(a)(3). ³ He was tried by a jury and convicted of one count of kidnapping in the first degree, one count of attempted robbery in the first degree and one count of attempted sexual assault in the first degree. The trial court sentenced the defendant to concurrent terms of fifteen years imprisonment on the kidnapping conviction and five years imprisonment on the attempted robbery conviction. The court also sentenced the defendant to a term of ten years imprisonment on the attempted sexual assault conviction to run consecutively with the kidnapping sentence for a total effective sentence of twenty-five years.

The defendant has appealed his convictions claiming that: (1) his prosecution by the state on two counts of kidnapping in the first degree, and his prosecution on attempted sexual assault in the first degree and sexual assault in the first degree violated his right under the fifth amendment to the United States constitution not to be twice placed in jeopardy for the same offense; (2) the trial court's instructions on the kidnapping charges both confused and misled the jury; (3) the trial court erred in giving a Secondino charge in its instructions to the jury; (4) there was insufficient evidence to convict him of attempted robbery in the first degree; and (5) he was denied his constitutional right to be sentenced fairly and impartially. We find no error.

The defendant first claims a dual violation of his constitutional right against double jeopardy by his prosecution on two counts of kidnapping in the first degree, and his prosecution for attempted sexual assault in the first degree and sexual assault in the first degree. Specifically, the defendant maintains that he was improperly prosecuted on two counts of kidnapping as the facts alleged indicate that there was only one continuing offense. Furthermore, the defendant claims that he was prosecuted for attempted sexual assault and sexual assault, which counts should have been merged into one count of sexual assault. The defendant argues that, because he was prosecuted on multiple counts of the above-mentioned crimes, his right against double jeopardy has been violated. The defendant concedes that this issue was not raised at trial, but maintains that we should, nevertheless, review it under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We conclude, however, that the double jeopardy clause is not implicated and that review under State v. Evans, supra, is, therefore, not warranted.

The double jeopardy clause of the fifth amendment to the United States constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." ⁴ "The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, [2225,] 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, [2076,] 23 L.Ed.2d 656 (1969)." (Emphasis added.) State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. John, 210 Conn. 652, 693, 557 A.2d 93 (1989); P. Robinson, Criminal Law Defenses (1984) § 68(a). In the context of a single trial, "the threshold issue [in determining whether the double jeopardy clause is implicated is] whether multiple punishments have been imposed." State v. John, supra, at 694, 557 A.2d 93. "The prosecution and submission to a jury of multiple charges arising from the same offense is not itself unconstitutional. See Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984)." State v. Devino, supra, at 73-74 n. 4, 485 A.2d 1302 n. 4.

In the instant case, multiple punishments for the various counts brought by the state were not imposed against the defendant. The defendant was convicted and sentenced on only one of the two counts of kidnapping in the first degree. Moreover, he was found guilty of attempted sexual assault but acquitted on the sexual assault counts. Because multiple punishments were not imposed, the defendant's double jeopardy rights have not been offended and, therefore, we decline to review the defendant's claims under State v. Evans, supra.

The defendant next claims that he is entitled to a new trial because the trial court's instructions to the jury on the essential elements of kidnapping in the first degree violated his due process rights under the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution. The defendant maintains that the court's instructions were inadequate because the jury was not properly instructed on the "intent ... to accomplish or advance the commission of a felony" element of kidnapping in the first degree required under § 53a-92(a)(2)(B). We disagree.

Initially, we note that the defendant did not except to any part of the court's instruction on this charge at trial, but raises this issue for the first time on appeal. A claim not raised at trial is reviewable only if the record adequately supports a claim that the defendant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, at 70, 327 A.2d 576. We will review the defendant's claim in the instant case because "the failure to instruct the jury adequately on each essential element of the crime charged may have resulted in a violation of the defendant's due process rights implicating the fairness of his trial. State v. Fleming, [198 Conn. 255, 269-70, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986) ]; State v. Sinclair, 197 Conn. 574, 580, 500 A.2d 539 (1985)." State v. Foster, 202 Conn. 520, 537, 522 A.2d 277 (1987).

" 'It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, [1071,] 25 L.Ed.2d 368 (1970).' " Id., 202 Conn. at 537-38, 522 A.2d 277. "It cannot be considered harmless error for a jury 'to find an accused guilty without even knowing what are the essential elements of the crimes charged.' State v. Griffin, [175 Conn. 155, 162-63, 397 A.2d 89 (1978) ]; see United States v. Howard, 506 F.2d 1131, 1134 (2d Cir.1974); State v. Kurvin, 186 Conn. 555, 573, 442 A.2d 1327 (1982) (Speziale, C.J., dissenting). Put another way, the failure to instruct a jury on an essential element of a crime charged is error because it deprives the defendant of the right 'to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.' United States v. Natale, 526 F.2d 1160, 1167 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976), citing United States v. Fields, 466 F.2d 119, 121 (2d Cir.1972). Of course, any such error is not cured just because an appellate court is satisfied after the fact of conviction that sufficient evidence was before the jury so that it would or could have found that the state proved the missing element had the jury been properly instructed. After all, 'when [the defendant] exercised his constitutional right to a jury, he put the [state] to the burden of proving the elements of the crimes charged to a jury's satisfaction, not to ours or [the trial judge's].' United States v. Howard, supra, [at] 1134." State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300 (1984).

" 'It is well established, however, that the individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 [cert. denied, 474 U.S. 833, 106 S.Ct. 103, 88 L.Ed.2d 84] (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jury in guiding them to the proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).' State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L.Ed.2d 795 (1986)." State v. Foster, supra, at 538, 522 A.2d 277. "Thus, an error in the charges requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Fleming, supra, [at] 269 ; State v. Sinclair, supra, [at] 581 ; State v. Kurvin, [supra, at 558, 442 A.2d 1327]." Id.

In the instant case, the defendant was charged with two counts of kidnapping in the first degree under § 53a-92(a)(2)(B), which states in pertinent part that "[a] person is guilty of kidnapping in the first...