State v. Dickerson

Citation28 Conn.App. 290,612 A.2d 769
Decision Date21 July 1992
Docket NumberNo. 10373,10373
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticut v. Dennis DICKERSON.

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Steven Sedensky, Asst. State's Atty., for appellee (state).

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

LANDAU, Judge.

The defendant, Dennis Dickerson, was convicted by a jury of six of one count of assault in the first degree in violation of General Statutes § 53a-59(a)(3). On appeal, he sets forth five claims, three involving the trial court instructions, one involving the trial court's denial of his motion for a mistrial, and, finally, one involving the sufficiency of the evidence. With respect to the trial court instructions, the defendant claims that the court improperly instructed the jury regarding (1) the reliability of prior inconsistent statements admitted for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), (2) adverse inferences and the defendant's failure to testify, and (3) consciousness of guilt. We disagree with all of the defendant's claims.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the evening of December 3, 1988, while returning home from a nearby supermarket along Martin Luther King Drive in Father Panik Village in Bridgeport, Tavares Cosby was shot in the left foot. Shots were being fired from the area around building thirty toward the area across the street around building twenty-six. At the time of the shooting, the victim was on the sidewalk between buildings twenty-nine and thirty and the victim's companion, Raymond Lopez, who had just left the victim to return to his apartment in building twenty-six, was in the hallway of that building. After the shooting, Lopez flagged down his mother, Rosa Ortiz, who was driving toward their apartment. Ortiz drove the victim to the hospital where the large toe on his left foot was amputated.

At trial, the victim testified that he did not see who shot him, nor did he see the defendant at the time of the shooting, but that the shots came from the direction of building thirty. He also testified that he saw the defendant standing near the hallway of building thirty as he and Lopez walked by on their way to the supermarket. Lopez, who viewed the incident from the hallway of building twenty-six, and the victim's mother, Marcellina Cosby, who viewed the incident from the window of her apartment in building twenty-nine, both gave sworn statements to the police indicating that the defendant shot the victim from the entranceway to building thirty.

I

A

PRIOR INCONSISTENT STATEMENTS

At trial, the court admitted prior written inconsistent statements of Marcellina Cosby and Lopez for substantive purposes under State v. Whelan, supra. The defendant does not challenge the admissibility of these statements. Rather, he asserts that the trial court's instructions regarding the jury's consideration of the statements were improper. The defendant filed a request to charge in which he sought, in part, the following instruction: "In this case, the state of Connecticut has introduced two prior written inconsistent statements. I caution you that though these statements have been admitted for substantive purposes "It is well established that when a proper request to charge is filed [pursuant to Practice Book § 852] and the trial court has failed to charge the jury in the exact language of the request, the test is whether the court's instructions properly covered the substance of the written request." State v. Watlington, 216 Conn. 188, 198, 579 A.2d 490 (1990), citing State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986); State v. Tillman, 220 Conn. 487, 500, 600 A.2d 738 (1991). " 'A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. State v. Gabriel, [supra]; State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).' State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). [Our Supreme Court] has often repeated that '[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.' State v. Estep, 186 Conn. 648, 651, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933)." State v. Allen, 216 Conn. 367, 386-87, 579 A.2d 1066 (1990); State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990); State v. Fernandez, 27 Conn.App. 73, 87, 604 A.2d 1308 (1992); State v. Toczko, 23 Conn.App. 502, 507, 582 A.2d 769 (1990). It is the trial court's responsibility to instruct the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration under the offenses charged and upon the evidence. See State v. Watlington, supra, 216 Conn. at 199, 579 A.2d 490; State v. Harrell, supra, 199 Conn. at 269, 506 A.2d 1041.

                there is no absolute guarantee of reliability."   The trial court refused to give the requested charge, and, in the alternative, instructed the jury that it "can determine whether to believe the present testimony, the prior testimony or neither.   Those statements are to be considered by you together with all of the evidence and you should give them such weight as they appear to be entitled to in view of all the circumstances under which they were made."   The defendant argues that because his request to charge was "relevant to the issues of the case and [was] an accurate statement of the law";  State v. Gabriel, 192 Conn. 405, 418, 473 A.2d 300 (1984);  the trial court was obligated to give it.   We disagree
                

Our review of the defendant's claim requires that we examine the trial court's charge in its entirety to determine whether it is reasonably possible that the jury could have been misled by the instruction as it was given. See State v. Ortiz, 217 Conn. 648, 662, 588 A.2d 127 (1991); State v. Allen, supra, 216 Conn. at 387, 579 A.2d 1066; State v. Rollinson, 203 Conn. 641, 665, 526 A.2d 1283 (1987); State v. Utz, 201 Conn. 190, 209, 513 A.2d 1191 (1986); State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985). " 'Whether a charge is possibly misleading depends on the substance rather than the form of what is said.' State v. Stevenson, 198 Conn. 560, 571, 504 A.2d 1029 (1986); see State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991); State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982)." State v. Ortiz, supra.

When the charge in the present case is viewed as a whole, it is clear that, although the trial court did not use the exact language of the defendant's request to charge, the substance of that request was included in the charge given by the court. The essence of the defendant's request to charge was to inform the jury that the prior statements were not inherently reliable and that it is not bound to accept them as fact. The instruction actually given by the trial court accurately conveyed the same theme to the jury. The instruction that the jury could consider the prior statement, the trial testimony or neither, depending on its view of the evidence as a whole and the circumstances under which the statements were made, clearly conveyed B

                to the jury that it was free to determine independently the reliability of the past and present statements and that it was not bound to accept either one or the other as true. 1  It is, therefore, not reasonably possible that the jury was misled.   See State v. Ortiz, supra;  State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991)
                
ADVERSE INFERENCE

The defendant next claims that the trial court's instruction that no adverse inference could be drawn from the defendant's failure to testify was insufficient. The following additional facts are necessary for our determination of this issue. Prior to instructing the jury, the trial court specifically informed defense counsel that it was going to instruct the jury regarding the defendant's failure to testify as follows: "You may draw no unfavorable inferences from the accused's failure to testify." See General Statutes § 54-84(b). 2 Defense counsel asked if that was the entire portion of the charge that the court was going to give. The court responded in the affirmative. The defendant made no request for an additional instruction and the trial court instructed the jury in accordance with this conversation.

The defendant now claims that the court should have charged, in addition to the statutory language, that the defendant has an absolute right not to testify under the fifth amendment to the United States constitution. The defendant did not object to the instruction at trial and now seeks appellate review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Both our Supreme Court and this court have reviewed similar claims in the absence of an objection raised properly at trial. See, e.g., State v. Wright, 197 Conn. 588, 594-95, 500 A.2d 547 (1985); State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984); State v. Reid, 22 Conn.App. 321, 326, 577 A.2d 1073, cert. denied, 216 Conn. 828, 582 A.2d 207 (1990). General Statutes § 54-84(b) "serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial." State v. Sinclair, supra, 197...

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