State v. Dubose, (AC 21999)

• Decision Date: 18 February 2003
• Docket Number: (AC 21999)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. YOLANDA DUBOSE

75 Conn. App. 163

815 A.2d 213

STATE OF CONNECTICUT v. YOLANDA DUBOSE

(AC 21999)

Appellate Court of Connecticut.

Argued October 29, 2002.

Officially released February 18, 2003.

Foti, Mihalakos and Hennessy, Js. Gerald L. Harmon, special public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John M. Waddock, supervisory assistant state's attorney, for the appellee (state).

Opinion

MIHALAKOS, J.

The defendant, Yolanda Dubose, appeals from the judgment of conviction, rendered after a jury trial, of two counts of arson in the first degree in violation of General Statutes § 53a-111 (a) (3) and (4).¹ On appeal, the defendant claims that (1) the trial court improperly instructed the jury as to the concept of proof beyond a reasonable doubt, (2) the court improperly charged the jury on the identification of the defendant, (3) the court improperly charged the jury regarding an element of the offense, (4) the state produced insufficient evidence to establish the requisite element of intent and (5) certain remarks made by the prosecutor during cross-examination of the defendant and during closing argument to the jury amounted to prosecutorial misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 19, 1995, the defendant, who at the time was an eighteen year old single mother, purchased property located at 115 Rosette Street in New Haven. The defendant moved into the home and, after living there for a short time, became progressively concerned with drug activity and crime in the neighborhood. There were also several instances in which the defendant's residence had been broken into. Furthermore, the defendant became concerned with the property's poor sewage and plumbing, as well as lead paint in the premises. After just one month of residing at 115 Rosette Street, the defendant allowed the homeowner's insurance policy on the property to expire.

In February, 1996, the defendant visited the city of New Haven's office of housing and neighborhood development (city) and applied for a rehabilitation loan. The city notified the defendant that she could not obtain such a loan without first securing insurance on the property. Thereafter, the defendant visited a local insurance carrier to secure the required insurance on the property. The defendant was particularly interested in the "loss of use" coverage contained within the insurance policy. After the defendant purchased the necessary insurance, the defendant returned to the city and provided the necessary documentation to a case manager to acquire the loan. The city, however, declined to grant the loan. Foreclosure proceedings commenced on June 24, 1996, because the defendant failed to make her mortgage payments. Shortly thereafter, the defendant moved into a relative's residence.

On September 6, 1996, at approximately 2:40 a.m., the New Haven fire department received an anonymous telephone call that there was a fire at the 115 Rosette Street residence. Firefighters responding to the scene found the doors locked and upon entry noticed a heavy smell of gasoline. Investigators later determined that the fire had been started intentionally.

Thereafter, two eyewitnesses, Ernest Harper and Keith Randolph, came forward with information regarding the incident. Harper and Randolph reported to police that between 12:45 a.m. and 3 a.m. on September 6, 1996, they witnessed the defendant park her blue vehicle on the one-way street along the side of the residence. The defendant then proceeded to open the trunk of the vehicle, remove a square container and enter the premises. A few minutes later, the defendant exited the property and just moments later, smoke and fire emerged from the house.

The state charged the defendant with arson in the first degree. The case was tried before a jury and on November 20, 2000, it returned a verdict of guilty. The court sentenced the defendant to a total effective prison term of twelve years, suspended after seven, with five years probation. This appeal followed. Additional facts will be provided as necessary.

I

The defendant first claims that she was deprived of a fair trial because the court improperly instructed the jury on the concept of proof beyond a reasonable doubt. Specifically, the defendant claims that the court improperly charged that (1) reasonable doubt is "proof by sufficient evidence to overcome the presumption of innocence on her part," (2) "[i]t is not required that the state prove the defendant guilty beyond all possible doubt," (3) "[t]he burden of proving her guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the defendant," (4) "[a] reasonable doubt is not a captious or frivolous doubt, nor is it a doubt which is raised by the ingenuity of a juror and unwarranted by the evidence, nor is it a doubt prompted by sympathy for the defendant," (5) "[a]bsolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction" and (6) "[b]ut for the safety and well being of society and the protection of life and property, the state is concerned with securing the conviction of people who have been proved by the evidence beyond a reasonable doubt to be guilty of committing a crime or crimes charged against that person." We reject the defendant's claims. The defendant concedes that the issue was not preserved at trial because she failed to submit a requested jury charge and failed to object to the court's instruction. She seeks review, however, under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).² We review the claim under Golding because the record is adequate for our review, and a claim that challenges the propriety of jury instructions on the law of reasonable doubt is of constitutional magnitude. State v. Green, 62 Conn. App. 217, 242, 774 A.2d 157 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002); see State v. Solman, 67 Conn. App. 235, 239, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002).

"Our Supreme Court's standard of review regarding claims of improper jury instruction is well established. [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. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.. . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury. . . we will not view the instructions as improper." (Citation omitted; internal quotation marks omitted.) State v. Person, 60 Conn. App. 820, 825-26, 761 A.2d 269 (2000), cert. denied, 255 Conn. 926, 767 A.2d 100 (2001); see also State v. Lemoine, 256 Conn. 193, 202-203, 770 A.2d 491 (2001).

On the basis of our review of the charge in its entirety, we conclude that the court's instructions did not mislead the jury. The court's instructions were correct in law, adapted to the issues and sufficiently guided the jury on the law of reasonable doubt by providing clear and concise instructions. Furthermore, this court and our Supreme Court have upheld instructional language identical to the language complained of here. See, e.g., State v. Morant, 242 Conn. 666, 687 n.13, 701 A.2d 1 (1997) (upholding language that "[i]t is not required that the state prove the defendant guilty beyond all possible doubt"); State v. Mejia, 233 Conn. 215, 242 n.20, 658 A.2d 571 (1995) (upholding language that "but for the safety and well-being of society and the protection of life and property, the State is concerned in securing the conviction of persons who have been proven by the evidence beyond a reasonable doubt to be guilty of committing the crimes charged"); State v. Ross, 230 Conn. 183, 221, 646 A.2d 1318 (1994) (upholding language that "proof which leaves you with a strong and abiding conviction that the accused is guilty"), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); State v. Ryerson, 201 Conn. 333, 343 n.2, 514 A.2d 337 (1986) (upholding language that "[a]bsolute certainty in the affairs of life is almost never attainable, and the law does not require absolute certainty to authorize a conviction"); State v. Boykin, 27 Conn. App. 558, 572, 609 A.2d 242 (upholding language that "reasonable doubt is not a captious or frivolous doubt nor is it a doubt raised by the ingenuity of counsel or by a juror and unwarranted by the evidence; nor is it a doubt prompted by sympathy for the defendant"), cert. denied, 223 Conn. 905, 610 A.2d 179 (1992); State v. Iovieno, 14 Conn. App. 710, 726 n.9, 543 A.2d 766 (upholding jury instruction containing language that "proof by sufficient evidence to overcome the presumption of innocence on his part"), cert. denied, 209 Conn. 805, 548 A.2d 440 (1988). Consequently, the defendant's claim fails to satisfy the third prong of Golding because it fails to establish that a constitutional violation clearly existed and clearly deprived her of a fair trial.

II

The defendant argues that the court improperly instructed the jury on identification of the defendant. The defendant advances two arguments in support of her claim. She first argues that although the state's two witnesses had criminal records and were not credible, the court refused to charge the jury as to the possibility of fabrication by those witnesses. The defendant next argues...