State v. Coleman

• Citation: 544 A.2d 194,14 Conn.App. 657
• Decision Date: 26 July 1988
• Docket Number: No. 3991,3991
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Bryant COLEMAN.

Page 194

544 A.2d 194

14 Conn.App. 657

STATE of Connecticut v. Bryant COLEMAN.

No. 3991.

Appellate Court of Connecticut.

Argued Jan. 6, 1988.

Decided June 14, 1988.

Petition for Certification Denied July 26, 1988.

James J. Ruane, Special Public Defender, with whom, on the brief, were Donald D. Dakers, Public Defender, and Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

Mitchell S. Brody, Deputy Asst. State's Atty., with whom, on the brief, was Patrick Clifford, Asst. State's Atty., for appellee (State).

Before BORDEN, EDWARD Y. O'CONNELL and STOUGHTON, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101(a)(1), ¹ robbery in the first degree in violation of General Statutes § 53a-134(a)(3), ² and sexual assault in the first degree in violation of General Statutes § 53a-70(a). ³ The defendant claims (1) that the court erred in its instructions to the jury regarding circumstantial evidence, (2) that the court erred in its instruction regarding the defendant's testimony, and (3) that the evidence was insufficient to sustain the burglary and robbery convictions. We find no reversible error.

The jury could reasonably have found the following facts. The victim lived in a second floor apartment on Park Street in New Haven. On May 13, 1984, at approximately 3 p.m., the victim responded to repeated ringing of her first floor door buzzer by going downstairs. No one was there. As she returned to her apartment, she observed a pile of clothing in the hallway. When she reentered her apartment, the defendant was in her bedroom. He grabbed her and threatened to cut her with a shiny metallic object which he was holding, and which he told the victim was a knife. He pressed the metal object to her skin, and she thought it was a knife. The defendant was wearing something on his hand which the victim described as "looking something like a bandage because it had sort of that flesh, brown flesh kind of look, not really flesh tones but in that color range."

The defendant was naked from the waist up. He demanded money from the victim, and she gave him $37 from her wallet, consisting of a $20 bill, a $10 bill, a $5 bill and two $1 bills. He then forced her to go into the bathroom and to undress. There he attempted to penetrate her anally, and forced her to perform fellatio on him while threatening to cut and blind her with the metallic instrument. The defendant then ordered the victim to remove his sneakers. As she was doing so, the victim observed that the lace on his left sneaker was longer than the right lace, and was wrapped around his ankle. She also observed that he was wearing striped pants with frayed bottoms, and gray gym shorts underneath his pants. As the defendant removed his pants, a black "afro comb" and a "pink yellow, salmon colored" plastic identification card fell from his pants pocket. The identification card fell face down. The defendant retrieved these items and put them back in his pants pocket.

The defendant then told the victim to go into the hallway and retrieve the pile of clothing. As she did so, she observed that among the clothing was a light colored poplin jacket with striped elastic cuffs. When she returned to the apartment, she threw the clothing down and escaped from the defendant by jumping out of a window and making her way along a ledge to her neighbor's apartment, where the police were called.

The incident lasted approximately twenty minutes. It was a warm, sunny day, and it was clear and light in the victim's apartment because of its many windows. During the incident, the victim engaged the defendant in conversation because, as she testified, "If I would get away ... I would want to know to describe him, what he looked like." She also testified that she "spent a lot of time looking at his face."

Officer Michael Ferraro of the New Haven police department arrived quickly. The victim described her assailant to Ferraro as a nineteen to twenty year old black male, approximately five feet ten inches to six feet tall, weighing one hundred sixty to two hundred pounds, wearing bluish colored pants with a white thin stripe, an off-white colored jacket with brownish trim at the cuffs and waistband, and high white sneakers.

The victim accompanied Ferraro in his police car in search of her assailant. During the search she observed young black males, but none who appeared to be the assailant. At an intersection approximately five blocks from the victim's apartment, the victim recognized the defendant as her assailant. As the police car approached the defendant, the defendant turned sharply in another direction and held a bouquet of flowers up to his face. When Ferraro stopped the defendant, the victim repeatedly and positively identified him as her assailant. In response to Ferraro's request to the victim for further evidence of the reliability of her identification of the defendant, the victim told Ferraro to lift the defendant's pants legs. This disclosed that the lace of the defendant's left sneaker was wrapped around his ankle. The victim then said, "That's definitely him." The victim then told Ferraro about the identification card and comb which had fallen from her assailant's pants pocket. Ferraro then searched the defendant. In his pants pocket were a plastic identification card with the same colors described by the victim, a black "afro" comb or pick, a shiny metal bottle opener, and $30 in cash consisting of a $20 bill and $10 bill. The defendant was wearing a light colored poplin jacket with striped cuffs, and corduroy pants with frayed cuffs. He was carrying a plastic bag containing, inter alia, a pair of brown stretch gloves which were consistent with what the assailant was wearing on his hand at the time of the crime. A subsequent search of the defendant at the police station disclosed that the defendant was also wearing gray gym shorts underneath his trousers.

At trial, the victim positively identified the defendant. She also identified the defendant's jacket, shorts, pants and sneakers as similar to those worn by the assailant in her apartment, and the defendant's plastic identification card as the same kind of card which fell from his pants pocket in her bathroom.

The defendant presented an alibi defense. He testified that he had spent the evening prior to the crime at his girlfriend's room in a rooming house in New Haven, leaving there at approximately 4 a.m. and walking home to his mother's house on Sylvan Avenue in New Haven. He testified further that he left his mother's house at approximately 12:30 p.m. and played basketball until approximately 2:30 p.m. He testified that he then went to a cafe where he played video games until approximately 3:20 p.m. After leaving the cafe, he bought some flowers for his girlfriend from a street vendor, and was walking back to his girlfriend's house when he was stopped by the police officer and the victim. The defendant specifically denied assaulting or robbing the victim, and denied having been in her apartment.

The defendant testified that he had a can opener in his pocket because he had borrowed the item the night before from his girlfriend's sister, who lived in the same rooming house, to open some cans of food, and that he had then put it into his pocket and forgotten to return it to her. He testified that he always wore the gloves when he rode his bicycle, even in very warm weather, that he had left his bicycle at his girlfriend's house because it had a flat tire, and that when he was arrested he was on his way to his girlfriend's house to fix the tire. He also testified that he had started the day with approximately $42.75 in cash in his pocket, and had spent some money on a soft drink and on the video games, and $10 to buy the flowers. The defendant's mother, girlfriend and his girlfriend's sister testified in corroboration of parts of his testimony.

I

The defendant first claims that the court's instructions regarding inferences drawn from circumstantial evidence diluted the constitutional requirement that the state prove guilt beyond a reasonable doubt. The court's instructions including the all too familiar language that, in drawing inferences from circumstantial evidence, it is required "[f]irst, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt; [and] secondly, that the inference that you are asked to draw is not only logical and reasonable but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true." The defendant argues that this charge constituted reversible error because circumstantial evidence played a major role in the state's case in three ways: (1) to bolster the direct evidence of the identity of the defendant; (2) to establish consciousness of guilt by the defendant; and (3) as the only evidence to establish the element of a dangerous instrument in the proof of the burglary and robbery offenses. See footnotes 1 and 2, supra. We disagree.

We first note that, despite the defendant's failure to except to the court's jury charge, his claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. McDonough, 205 Conn. 352, 354, 533 A.2d 857 (1987). Moreover, it is well established that such an instruction is erroneous. ⁴ Id. at 355-56, 533 A.2d 857; see State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987). The only question, therefore, is whether the error is reversible in this case. We conclude that it is not.

"In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role." State v. McDonough, supra, 358, 533 A.2d 857. "Unlike intent, [which...