State v. Carpenter

• Decision Date: 11 July 1989
• Citation: 562 A.2d 35,19 Conn.App. 48
• Parties: STATE of Connecticut v. Malcolm CARPENTER. 6639.
• Court: Connecticut Court of Appeals

Page 35

562 A.2d 35

19 Conn.App. 48

STATE of Connecticut v. Malcolm CARPENTER.

6639.

Appellate Court of Connecticut.

Argued April 13, 1989.

Decided July 11, 1989.

William H. Narwold, Sp. Public Defender, Hartford, with whom were David B. Teitelman and, on the brief, Robert J. Petrilli, Stamford, and Karen L. Goldthwaite, Hartford, for appellant (defendant).

Rita M. Shair, Deputy Asst. State's Atty., with whom were Eugene Callahan, State's Atty., and, on the brief, Steven Weiss, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and SPALLONE and FOTI, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction rendered after a jury trial. The charges against the defendant arose out of six burglaries committed in Stamford between late January and early March, 1986, and are contained in two informations, alleging seventeen separate crimes. The first information is based on the following six incidents: (1) burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the sixth degree in violation of General Statutes § 53a-125b for a break-in at Jesus' Grocery Store on January 28, 1986; (2) burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the fifth degree in violation of General Statutes § 53a-125a for a break-in at Stone's Variety Store on February 8, 1986; (3) burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the sixth degree in violation of General Statutes § 53a-125b for breaking into Quino's Place, a neighborhood pool hall, and taking money from the coinboxes on February 13, 1986; (4) burglary in the third degree in violation of General Statutes § 53a-103 for breaking into Moraves', another neighborhood pool hall, also on February 13, 1986; (5) burglary in the third degree and larceny in the third degree in violation of General Statutes §§ 53a-103 and 53a-124, for an incident at the J.D. Deli on February 25, 1986; and (6) burglary in the third degree in violation of General Statutes § 53a-103, larceny in the third degree in violation of General Statutes § 53a-124, stealing a firearm in violation of General Statutes § 53a-212, and altering or removing an identification mark in violation of General Statutes § 29-36. Those latter charges arose out of a break-in at Moss' Gun and Tackle Shop on March 1, 1986, in which twelve weapons were taken.

Four other charges arose out of this last incident and are the subject of the second information. The defendant was apprehended in a motor vehicle on March 3, 1986, while in possession of one of the twelve stolen weapons. He was charged with stealing a firearm in violation of General Statutes § 53a-212, having a weapon in a motor vehicle in violation of General Statutes § 29-38, altering or removing an identification mark in violation of General Statutes § 29-36, and criminal possession of a pistol in violation of General Statutes § 53a-217. ¹

The state moved to consolidate the informations because the crimes were similar and the two informations were connected. The court, Bingham, J., granted the state's motion, and, subsequently, the defendant was tried before a jury of six. The defendant moved for acquittal on the two counts of altering an identification mark on a weapon in violation of General Statutes § 29-36, and on one count of burglary in violation of General Statutes § 53a-103. The state did not object to the motion and the court, McGrath, J., granted the defendant's motion. The jury returned a verdict of guilty on the remaining fourteen counts, and the court sentenced the defendant to a total prison term of twenty-nine years and six months.

The defendant claims that the trial court erred (1) in failing to comply with the requirements of General Statutes § 54-84(b) by not properly instructing the jury on the defendant's failure to testify, (2) in failing to instruct the jury adequately concerning the testimony of an accomplice, (3) in failing to admonish the jury properly to consider the evidence relating to each charge separately, (4) in failing to admonish the jury properly concerning the limited use of a prior criminal conviction of the defendant, (5) in allowing the jury to convict the defendant on all of the firearm counts without sufficient evidence of the operability of the firearms, (6) in finding sufficient evidence that the defendant did not have permission to enter Jesus' Grocery Store, (7) in joining the two separate informations, (8) in applying inflexible sentencing guidelines and exercising inappropriate discretion in sentencing the defendant, (9) in convicting the defendant on two separate counts of stealing the same weapon, in violation of the prohibition against double jeopardy, ² and (10) in sentencing the defendant to one year for the class B misdemeanor of larceny in the fifth degree, six months greater than that allowed by General Statutes § 53a-36. ³ We find error in part.

The jury reasonably could have found certain relevant facts. During the winter of 1986, the defendant and his accomplice, Larry Briscoe, engaged in a series of burglaries in the Stamford area. All burglaries took place in the early morning hours, and involved small family businesses. All of the burglarized stores had steel gates with padlocks to secure their entrances, and a set of bolt cutters were used for the illegal entries. The burglaries spanned a period of a little over one month. The stolen items consisted primarily of cash, usually coins, cigarettes, lottery tickets and liquor, and most of the break-ins involved vandalism. The pair's final break-in before their arrest was of Moss' Gun and Tackle Shop. Briscoe testified that a few days earlier he had gone into the gun shop to purchase a firing pin for his weapon, and noticed that the shop could be easily burglarized. On March 1, 1986, the defendant and Briscoe used bolt cutters to open the steel gate that blocked the entrance to the store above, as well as to the gun shop. They took twelve guns valued at over $4000. That evening, the defendant stopped at the home of a friend, and sold him two of the guns he had just taken.

On March 3, 1986, the defendant asked another friend for a ride home. En route, they were stopped by police who had a warrant for the defendant's arrest. The defendant had one of the stolen guns in his possession tucked under the front seat and out of sight.

In his first claim of error, the defendant alleges that the trial court erred in failing to instruct the jury properly pursuant to General Statutes § 54-84(b). That statute provides in relevant part: "Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify." The defendant neither requested a charge on the statute, nor did he take an exception to the trial court's alleged failure to give it.

Our analysis of the defendant's claim "necessarily involves three stages of inquiry. ' " Is the defendant entitled to raise this claim when he did not raise it at trial? If this claim is properly here, was the instruction given by the trial court erroneous? If the instruction was in error, was the error harmless?" ' State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986), quoting State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985)." State v. Thurman, 10 Conn.App. 302, 305, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

The defendant's challenge to the trial court's failure to include the statutorily mandated instruction is twofold. First, he claims that such failure resulted in a due process violation implicating the fairness of his trial. In addition, he alleges that the omission of the instruction violated his rights under General Statutes § 54-84(b). The state maintains that the defendant's claims are unreviewable because of his failure to submit a request to charge or to except to the charge as given. We conclude that the defendant's constitutional claim is reviewable under State v. Evans, 165 Conn. 61, 70-71, 327 A.2d 576 (1973), and that his statutory claim is reviewable under the plain error doctrine. State v Thurman, supra, 10 Conn.App. at 309, 523 A.2d 891.

The defendant's constitutional claim is reviewable under the familiar Evans bypass because it implicates a fundamental constitutional right and the claim is supported by the record. State v. Thurman, supra, 10 Conn.App. at 306-308, 523 A.2d 891; see also State v. Thompson, 17 Conn.App. 490, 493-94, 554 A.2d 297 (1989). Although the defendant's claim is reviewable, we conclude that because the defendant made no request for the "no unfavorable inference" instruction, no fundamental constitutional right was abridged. We so conclude because the federal and state constitutions require the instruction only when the defendant has properly requested it. State v. Thurman, supra, 10 Conn.App. at 308, 523 A.2d 891.

Despite the state's argument to the contrary, the defendant's claim is also reviewable and properly before this court under the plain error doctrine. See id., 308-10, 523 A.2d 891, and cases cited therein; see also State v. Thompson, supra, 17 Conn.App. at 494, 554 A.2d 297. "The provisions of § 54-84(b) are more stringent than the federal or state constitutions require. State v. Sinclair, supra [197 Conn. at] 585 . 'While the constitutional right to a "no adverse inference" charge depends upon the defendant's request of such a charge, the statutory right is conferred upon the defendant unconditionally, in the absence of his request that the charge not be given.' Id. Our legislature has prescribed the language provided in § 54-84(b) to be the jury instruction that must be given to reduce speculation to a minimum. State v. Cobb, supra [199 Conn. at] 324 . For this reason, our Supreme Court has 'regularly characterized as error any but the most minor departure from the language that § 54-84(b) requires.' " (Emphasis...