State v. Duhan

Citation194 Conn. 347,481 A.2d 48
CourtSupreme Court of Connecticut
Decision Date28 August 1984
PartiesSTATE of Connecticut v. Eleanor DUHAN.

Carl J. Schuman, Asst. State's Atty., for appellant (state).

Robert V. Cimmino, New Milford, for appellee (defendant).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and GRILLO, JJ.

PETERS, Associate Justice.

This case concerns the interpretation of that part of our disorderly conduct statute which makes it a misdemeanor to make "unreasonable noise." The state has taken an appeal to this court, after our grant of certification, from the judgment of the Appellate Session of the Superior Court that the state failed to present sufficient evidence to warrant the defendant's conviction under General Statutes § 53a-182(a)(3) which penalizes "[a] person [who] ... with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... makes unreasonable noise ...." 1 Although the Appellate Session made other rulings adverse to the state, this is the only part of its judgment that is directly before us.

The defendant was originally charged in a four count information including, in addition to the first count of disorderly conduct, counts charging the defendant with: assault in the third degree, in violation of General Statutes § 53a-61; criminal mischief in the third degree, in violation of General Statutes § 53a-117; and interfering with a police officer, in violation of General Statutes § 53a-167a. At the close of the state's case, the defendant moved for judgment of acquittal on all four counts. The trial court granted the defendant's motion with respect to the assault count only. After the presentation of the case for the defense, and the jury's verdict finding the defendant guilty on the three remaining counts, the defendant orally renewed her motion for acquittal. At that time, she also moved that the verdict be set aside. The trial court denied these motions and rendered judgment against the defendant on all counts except that charging her with assault.

In the defendant's appeal to the Appellate Session, she urged that court to dismiss all of the charges against her, on each count, because of insufficient evidence. Alternatively, she argued that evidentiary and instructional errors at trial required that the judgment against her be set aside. The Appellate Session agreed with parts of these claims of error. On the basis of reversible evidentiary error, it ordered a new trial with respect to the counts of criminal mischief and interference with a police officer. State v. Duhan, 38 Conn.Sup. 665, 669-72, 460 A.2d 496 (1982). Determining that there was insufficient evidence to support any conviction with regard to count one, the Appellate Session ordered the entry of a judgment of not guilty of disorderly conduct. The Appellate Session considered separately the two subsections of the disorderly conduct statute which the defendant had been charged with violating, and decided that there was sufficient evidence neither of "violent, tumultuous or threatening" behavior under § 53a-182(a)(1) nor of "unreasonable noise" under § 53a-182(a)(3). Id., 667-69. The state's appeal from that judgment challenges only the Appellate Session's conclusion that there was insufficient evidence to convict the defendant of violation of § 53a-182(a)(3) relating to "unreasonable noise."

I

Before we can address the substantive merits of the Appellate Session's interpretation of § 53a-182(a)(3), there are two procedural obstacles that we must confront. Did the defendant properly present a claim to the Appellate Session for review of the sufficiency of the evidence to convict her of disorderly conduct, when the defendant herself now states that her claim arises out of the trial court's denial of her motion for acquittal at the end of the state's case? Can the state properly seek review in this court of the sufficiency of the evidence to support a conviction under one subsection of the disorderly conduct statute, when the state itself now concedes that there was insufficient evidence to warrant conviction under the other subsection, and neither the trial court's instructions nor the jury's verdict of guilty enable us to ascertain the basis of that verdict? Although both of these procedural issues are troublesome, we conclude that, in the circumstances of this case, they do not foreclose our substantive inquiry.

The first procedural issue concerns the propriety of the defendant's appeal to the Appellate Session from the denial of her motions for judgment of acquittal in the trial court. The Appellate Session considered this claim, which raised the sufficiency of the evidence to support the conviction of disorderly conduct, without expressly discussing how that claim had been presented in the trial court. The state did not then maintain that normal consideration of the claim of error was inappropriate. Now, however, the state calls to our attention the representation in the defendant's brief in this court that her motion of acquittal was made "after the State's case."

The state argues that no appeal can be taken from the denial of a motion for acquittal at the close of the state's case if the defense has thereafter introduced evidence in its own behalf. That appears to be the federal rule. McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971), reh. denied, 406 U.S. 978, 92 S.Ct. 2407, 32 L.Ed.2d 677 (1972); United States v. Calderon, 348 U.S. 160, 164 and n. 1, 75 S.Ct. 186, 188 and n. 1, 99 L.Ed. 202 (1954); 2 C. Wright, Federal Practice & Procedure § 463 (1982). It was also our rule under the Practice Book provisions that previously governed criminal procedure. State v. Brown, 172 Conn. 531, 532-33, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977); State v. L'Heureux, 166 Conn. 312, 324, 348 A.2d 578 (1974); State v. Boucher, 119 Conn. 436, 437, 177 A. 383 (1935); Maltbie, Conn.App.Proc. (2d Ed.1957) § 212. We have not had the occasion to determine whether our new rules of criminal procedure, which became effective on July 1, 1978; Practice Book §§ 882 through 885; continue to support the position that a defendant is compelled to choose between presenting no evidence and waiving her right to have the state itself establish its case against her.

We need not decide today whether to respond to the growing criticism of the waiver rule. Cephus v. United States, 324 F.2d 893, 895-98, 117 U.S.App.D.C. 15 (1963); State v. Simpson, 64 Haw. 363, 370-72, 641 P.2d 320 (1982); Commonwealth v. Cote, 15 Mass.App. 229, 241 n. 8, 444 N.E.2d 1282 (1983); comment, "The Motion for Acquittal: A Neglected Safeguard," 70 Yale L.J. 1151 (1961); Wright, op. cit., 646-48; contra ABA Standards for Criminal Justice (2d Ed.1979) § 15-3.5. In this case, the defendant renewed her motion for acquittal after the trial court's acceptance of the jury verdict against her. At oral argument in this court, the state agreed that, in the light of this renewed motion, we may appropriately undertake a plenary review of the evidentiary underpinnings of the state's case.

The second procedural issue arises out of the duality of the charges against the defendant under the one count of the information charging her with disorderly conduct. In response to a request for a bill of particulars, the state notified the defendant that she was being held to answer for two subsections of § 53a-182, subsection (a)(1) charging "violent, tumultuous or threatening behavior," and subsection (a)(3) charging "unreasonable noise." The trial court instructed the jury in the disjunctive, on both subsections, although, as the Appellate Session held and the state now concedes, there was insufficient evidence to sustain a conviction under subsection (a)(1). The issue before us is whether, in light of the absence of any indication of the subsection upon which the jury relied in finding the defendant guilty of disorderly conduct, count one must now be dismissed in its entirety, even though there may be sufficient evidence to sustain the conviction under subsection (a)(3).

It is the state which, as the appellant, has brought this issue to our attention. The state urges us to disavow State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983), in which we stated: "Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon." The state urges us to hold, instead, that a finding of guilty can always be sustained if there is sufficient evidence of any one of several alternatives charged conjunctively in the information. We do not agree with the state's proposition in the unconditional manner in which it is asserted. As we held in State v. Reid, 193 Conn. 646, 667 n. 22, 480 A.2d 463 (1984), "[although] the state [may] sustain its burden of proving the offense by presenting sufficient evidence upon any one of several alternative statutory grounds without the necessity of proving all of those alleged ... [i]t is error for a court to submit to a jury as a basis for a conviction any statutory alternative ground unsupported by the evidence." We conclude, nonetheless, that, in the procedural posture of this case, the state is correct.

At no time prior to the appeal to this court has the defendant interposed any objection to separate consideration of the merits of the "unreasonable noise" charge. In the trial court, the defendant challenged the sufficiency of the evidence at two junctures, first at the close of the state's case, and then at the time when the trial court had accepted the jury's verdict. In neither of these motions did the defendant make any distinction between the evidence as it pertained to subsection (a)(1) and subsection (a)(3) of the disorderly conduct statut...

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