State v. Cruz

• Decision Date: 06 May 1994
• Docket Number: No. 12261,12261
• Citation: 639 A.2d 534,33 Conn. App. 849
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Justo CRUZ.

Page 534

639 A.2d 534

33 Conn.App. 849

STATE of Connecticut v.Justo CRUZ.

No. 12261.

Appellate Court of Connecticut.

Argued Dec. 13, 1993.

Decided March 29, 1994.

Certification Denied May 6, 1994.

Kenneth W. Simon, Asst. Public Defender, for the appellant(defendant).

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

Before FOTI, HEIMAN and SPEAR, JJ.

SPEAR, Judge.

The defendant, Justo Cruz, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(3).¹The defendant claims that the trial court(1) improperly instructed the jury that a reasonable doubt is not "a slight doubt,"(2) unfairly marshaled the evidence during its charge to the jury, thereby depriving the defendant of a fair trial, and (3) gave an unbalanced and coercive charge after the jury reported that it was deadlocked five to one.We affirm the judgment of the trial court.

The jury reasonably could have found the following facts.On March 1, 1992, at approximately 7:40 p.m., the defendant entered the Shell Food Mart at the corner of Sisson Avenue and Park Street in Hartford.After being in the store for about five minutes, he asked the clerk, Arnaldo Vega, for change for a dollar.When Vega opened the cash register, the defendant started to take money from the drawer.Vega attempted to close the drawer, but drew back after the defendant brandished a knife and said, "I'll kill you."After taking several bills from the cash register, the defendant left the store and fled toward Sisson Avenue.

Officer Oscar Delima of the Hartford police department was dispatched to the scene, where Vega described the robber as a Hispanic male with a light moustache, about five feet, nine inches tall, and weighing approximately 155 pounds.The robber wore a blue hooded sweatshirt with orange lettering and light colored jeans.Delima broadcast Vega's description of the robber over his police radio.Shortly after receiving the broadcast, Detective Eddie Rivera observed the defendant emerge from a driveway on Sisson Avenue.The defendant, who fit Vega's description, was carrying a white plastic bag.He ran across the street and entered the passenger side of a red Chevrolet Cavalier waiting at a traffic light.Rivera pulled the red car over as it entered the on-ramp to I-84 east.Within minutes, Officer David Wyman arrived on the scene to assist Rivera.When Wyman approached the car, he saw the defendant stuff something down his shirt.The defendant was then placed in Wyman's cruiser and Vega was brought to the scene.Vega identified the defendant as the person who had robbed the store, although he now had on different clothes.A search of the white plastic bag revealed light blue jeans and a blue hooded sweatshirt with orange lettering that Vega identified as the clothing worn by the robber.The defendant was then placed under arrest.

At trial, the defendant presented an alibi defense claiming that when the robbery took place, he had been drinking with his nephew, Johnny Sanchez, at Sanchez' house at 145 Sisson Avenue.Sanchez had called Dickie Madley to give the defendant a ride because the defendant was drunk.Madley was the driver of the red car.

After two days of deliberations, the jury reported that it was deadlocked.²The court then gave a "Chip Smith charge" which is frequently given to juries that report an impasse.State v. Smith, 49 Conn. 376, 386(1881).The instruction charged the jurors to reach their own conclusion and not simply to acquiesce in the conclusions of the others.The instruction also charged each juror, especially those in the minority, to reexamine carefully his or her position with due regard and deference to the opinion of the others.A verdict of guilty was returned the next day.

I

The defendant first claims that the trial court improperly instructed the jury that a reasonable doubt is not a "slight doubt."³The defendant took no exception to this language at trial and challenges the instruction for the first time on appeal.The defendant can prevail on an unpreserved claim only if all of the conditions set out in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823(1990), are satisfied.The Golding criteria are as follows: "(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."Id.

Only the third factor is disputed by the state.The defendant argues that the court's instruction was an improper quantification of the reasonable doubt standard that resulted in a lessening of the state's burden of proof, thereby clearly depriving the defendant of a fair trial.We disagree.

The defendant relies principally on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339(1990), which disapproved instructions describing reasonable doubt as "such doubt as would give rise to a grave uncertainty," and "actual substantial doubt" and "a moral certainty."Id., at 40, 111 S.Ct. at 329.The Supreme Court stated that "[i]t is plain to us that the words 'substantial' and 'grave,' as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard.When those statements are then considered with the reference to 'moral certainty,' rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause."Id., at 41, 111 S.Ct. at 330.

The defendant argues that the words "a slight doubt" are the "mirror image" of the words "substantial doubt."He claims that, by instructing the jury that reasonable doubt is something more than a slight doubt, it in effect defined reasonable doubt as substantial doubt, a definition deemed improper under Cage v. Louisiana, supra.This court addressed the use of the words "substantial doubt" in a "reasonable doubt" charge in State v. Dizon, 28 Conn.App. 444, 611 A.2d 432(1992).We held, after examining the charge as a whole, that there was no constitutional violation by this sole misstatement in a lengthy reasonable doubt charge.Id., at 449, 611 A.2d 432.This one statement did not rise to the level of the several misstatements contained in the jury instructions in Cage v. Louisiana, supra.Id., 28 Conn.App. at 448-49, 611 A.2d 432.

Although the reasonable doubt instructions here were not as lengthy as those in State v. Dizon, supra, the same reasoning applies.Jury instructions must be examined in their entirety and not clinically dissected.State v. Fernandez, 27 Conn.App. 73, 84-87, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330(1992);State v. Toczko, 23 Conn.App. 502, 507, 582 A.2d 769(1990).The test is whether reasonable jurors would, on the whole, understand the charge.Francis v. Franklin, 71 U.S. 307, 315-16, 105 S.Ct. 1965, 1971-72, 85 L.Ed.2d 344(1985);see alsoState v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335(1982).

The defendant relies on cases where attempts to quantify the concept of reasonable doubt have been struck down.Instructions in those cases, however, attempted to quantify reasonable doubt by using examples that could have misled the jury.In State v. Smith, 183 Conn. 17, 24-27, 438 A.2d 1165(1981), the trial court used an example of "tipping" the scales.Even though the court, in a correcting instruction, said that the scales had to be " 'tipped beyond a reasonable doubt,' "the court also stated that it could not describe the necessary tipping as " 'an inch or a foot or a yard or a mile.' "Id., at 26-27, 438 A.2d 1165.This instruction was held to be reversible error as the jurors could have found guilt if they"believed beyond a reasonable doubt that the 'scale' had been tipped in favor of conviction.This is not the same as the constitutionally mandated standard of proof beyond a reasonable doubt."(Emphasis in original.)Id., at 28, 438 A.2d 1165.

In State v. DelVecchio, 191 Conn. 412, 464 A.2d 813(1983), the trial court instructed the jury that "[y]ou don't have to go a hundred yards for a guilty finding.You got to go somewhere, I suppose, beyond the fifty yard line; where it is in there is up to you to decide."Id., at 417-18, 464 A.2d 813.The court's football field analogy was not cured by an accurate statement of the law.Our Supreme Court held that it was reasonably possible that the jury was misled by the erroneous instruction.Id., at 424-25, 464 A.2d 813.

In McCullough v. State, 99 Nev. 72, 657 P.2d 1157(1983), the trial court attempted to illustrate the concept of reasonable doubt with a numerical "scale."Id., at 73, 657 P.2d 1157.The instruction in which the court quantified reasonable doubt as " 'seven and a half, if you had to put it on a [zero to ten] scale' " was struck down on appeal.Id., at 74, 657 P.2d 1157.

The problem that arises when courts amplify reasonable doubt instructions is well stated in United States v. Pinkney, 551 F.2d 1241(D.C.Cir.1976).The court observed that "[j]udicial attempts to clarify the meaning of the phrase 'reasonable doubt' by explanation, elaboration or illustration ... more often than not tend to confuse or mislead [the jury]."Id., at 1244.Moreover, "the jury is likely to give undue weight to examples, since they are easier to comprehend, and it may simply compare the defendant's conduct with the example."People v. Shepherd, 63 Mich.App. 316, 322, 234 N.W.2d 502(1975).

In this case, the trial court...