State v. Barnes

• Citation: 637 A.2d 398,33 Conn.App. 603
• Decision Date: 06 May 1994
• Docket Number: No. 11640,11640
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Lamont A. BARNES.

Page 398

637 A.2d 398

33 Conn.App. 603

STATE of Connecticut v. Lamont A. BARNES.

No. 11640.

Appellate Court of Connecticut.

Argued Nov. 3, 1993.

Decided Feb. 15, 1994.

Certification Granted Limited to the Following Issue May 6, 1994.

Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and Edward Wilson, Asst. State's Atty., for appellee (state).

Before LANDAU, FREDERICK A. FREEDMAN and SCHALLER, JJ.

LANDAU, Judge.

The defendant appeals from his conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-124(a)(2). ¹ The defendant claims that the trial court improperly (1) instructed the jury as to the value of the property taken, (2) penalized the defendant at sentencing because he would not admit his guilt, (3) excluded testimony on cross-examination thereby violating the defendant's constitutional rights to confrontation and to present a defense, and (4) instructed the jury as to its duties.

The jury reasonably could have found the following facts. On December 21, 1991, at approximately 12:20 p.m., Julius Levine was watching television in his living room when the defendant knocked on his door. Levine had been acquainted with the defendant for fifteen years through a mutual friend. Levine allowed the defendant to join him. In Levine's living room was a Christmas tree with several gifts beneath it. At about 1:30 p.m., Janice Levine, Julius' wife, returned from shopping. She had purchased a set of crystal dishes and a pair of men's white Nike sneakers, which she placed with the other gifts under the tree. She also purchased a pair of boys' white Fila sneakers for their son. The son told the defendant how much he liked his new sneakers. While the defendant was at the Levine's, he helped Levine move some chairs to the basement.

The Levines prepared for a Christmas party while the defendant cut their son's hair downstairs. At approximately 6:45 p.m., the defendant left the Levines' house. The Levines left for their scheduled party at 7:30 p.m. and took their children to a neighbor's house. Upon their return at 10:30 p.m., the Levines discovered the backdoor open, the basement window kicked in, and the presents and other items missing. Gift wrappings were found in the Levines' backyard in a trash bag. The missing items included a VCR, sweaters, pants, two sterling bracelets, boots, the sneakers, the set of dishes, Barbie dolls, doll accessories, and many other articles. The value of the missing merchandise was $2100. ²

That same evening, the defendant visited a friend, Shelly Brown, whose house was within walking distance of the Levines'. The defendant showed Brown two children's sterling bracelets, which he claimed he had purchased. The defendant left Brown's house and returned with two shopping bags of items that included clothing, baby doll accessories, a set of crystal dishes, a pair of men's Nike sneakers and a pair of boys' Fila sneakers. Brown bought the set of crystal dishes from the defendant for $10.

On December 22, 1991, Edward Hill visited Brown's house and took the set of dishes from her. Hill returned the dishes to the Levines who acknowledged that the set was the one that Mrs. Levine had purchased the day before. Brown was visited by the police and Levine; she gave a signed statement as to the circumstances of the defendant's visit and sale to her of the dish set.

I

The defendant first claims that the trial court's instruction to the jury concerning larceny in the third degree as to the element of value diluted the state's burden of proof, thereby violating his due process rights. The defendant concedes that this claim was not preserved at trial. He seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). In Golding, the Supreme Court held that a defendant can prevail on an unpreserved claim of error if all of the following conditions are met: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. "Although we generally do not consider a claim regarding the giving of an improper instruction or the failure to give a proper instruction unless the claim is properly preserved at trial ... [t]his court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial." (Citation omitted; internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993). Because this defendant's claim concerns the value of property acquired by the defendant, an essential element of the crime of larceny in the third degree, he has satisfied the second prong of Golding.

The defendant's claim fails under the third criterion of Golding because the alleged constitutional violation does not clearly exist. The defendant argues that the jury instruction required the state to prove only that the value of the goods taken from the Levines exceeded $1000 instead of requiring the state to prove that the value of the goods taken by the defendant exceeded $1000. ³ The state's contention is that the information, which provided a clear and accurate recitation of the offense of larceny in the third degree, was incorporated into the jury instruction, and, therefore, there was no reasonable possibility that the challenged portion of the charge diluted the state's burden of proof. We agree with the state.

"In reviewing a constitutionally based challenge to the court's instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989); State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988)." State v. Ober, 24 Conn.App. 347, 358, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, cert. denied, --- U.S. ----, 112 S.Ct. 319, 116 L.Ed.2d 260 (1991). "The charge is not to be judged in artificial isolation from the overall charge. State v. Kelly, 23 Conn.App. 160, 164, 580 A.2d 520 (1990), cert. denied, 216 Conn. 831, 583 A.2d 130, cert. denied, 499 U.S. 981, 111 S.Ct. 1635, 113 L.Ed.2d 731 (1991)." State v. Falcon, 26 Conn.App. 259, 269, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992). An error in the charge 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. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988).

The jury was adequately instructed on the crime of larceny in the third degree and there is no reasonable possibility that the jury was misled by the charge. Our review of the charge in its entirety indicates that the trial court, which did make a misstatement as to value, ⁴ did in fact incorporate the information into the jury charge. Prior to delivering the challenged instruction, the trial court read the information to the jury. ⁵ The court also charged the jury on General Statutes § 53a-124(a)(2), larceny in the third degree. ⁶ See State v. Pollitt, 205 Conn. 132, 151, 531 A.2d 125 (1987) (jury instruction not misleading where the court read the information and the relevant part of the statute before the charge was given). The claim of error the defendant is asserting is an attempt to isolate a small portion of the charge. See State v. Giannotti, 7 Conn.App. 701, 707, 510 A.2d 451, cert. denied, 201 Conn. 804, 513 A.2d 700 (1986). Upon review of the entire charge, it is not reasonably possible that the jury was misled in reaching its verdict. Therefore, the defendant has failed to demonstrate that a constitutional violation clearly exists as required by Golding for unpreserved claims, and we will not review this claim.

II

The defendant claims that the trial court's consideration at his posttrial sentencing of the defendant's insistence of innocence and his refusal to assume responsibility violated his constitutional rights to due process, a fair trial, his right against self-incrimination, and his statutory right to appeal. He asserts that the trial court penalized him at sentencing because he continued to maintain his innocence. This claim was also unpreserved and the defendant seeks review under Golding and Evans. We conclude that the defendant has not satisfied the third prong of Golding in that he has not established the existence of a clear constitutional violation.

" 'A sentencing judge has very broad discretion in imposing any sentence within the statutory limits....' " State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986). In exercising that discretion, a judge may "consider a wide variety of information" sufficiently reliable without offending the principles of due process. Id. at 127, 505 A.2d 1242. ⁷ In Huey, as in the present case, the defendant did not assert his privilege against self-incrimination, but instead, with legal representation, voluntarily responded to the court's offer to address the court. The Huey Court held that the privilege against self-incrimination, under such circumstances, is not self-executing and a defendant wanting to assert his fifth amendment right must assert it in a timely fashion. Id. at 129, 505 A.2d 1242. No attempt was made by the sentencing judge to force the defendant to admit guilt; he was merely given the opportunity to present his...