State v. Dunn

• Decision Date: 10 October 1991
• Docket Number: Nos. 9325,9326,s. 9325
• Citation: 26 Conn.App. 114,598 A.2d 658
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Balfour DUNN.

Page 658

598 A.2d 658

26 Conn.App. 114

STATE of Connecticut v. Balfour DUNN.

Nos. 9325, 9326.

Appellate Court of Connecticut.

Argued Sept. 11, 1991.

Decided Oct. 10, 1991.

Susan M. Hankins, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Susan C. Marks, Asst. State's Atty., with whom, on the brief, was John C. Bailey, State's Atty., for appellee (state).

Before DUPONT, C.J., and SPALLONE and LAVERY, JJ.

SPALLONE, Judge.

In this combined appeal, the defendant challenges various instructions given to the jury by the trial court, raises a double jeopardy claim and contends that the evidence was insufficient to sustain his conviction for attempt to commit assault in the first degree.

The defendant's first claim requires that we once again address the issue of whether the trial court's erroneous instruction to the jury regarding inferences drawn from circumstantial evidence impermissibly diluted the constitutional requirement that the state prove guilt beyond a reasonable doubt and instead permitted the jury to find the defendant guilty by a preponderance of the evidence. Because we reverse the judgments of conviction due to the trial court's erroneous instruction on circumstantial evidence and order a new trial on all charges of which the defendant was convicted, we discuss only the defendant's claim regarding that jury instruction, and his claim concerning the insufficiency of the evidence.

The defendant was charged in two separate informations with similar offenses occurring on different dates, involving different witnesses and complainants. He appeals from the judgment of conviction on one information of robbery in the third degree in violation of General Statutes § 53a-136, larceny in the second degree in violation of General Statutes § 53a-123(a)(3) and assault in the third degree in violation of General Statutes § 53a-61(a)(1), and from the judgment of conviction on the other information of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-134(a)(4), attempt to commit assault in the first degree in violation of General Statutes ss53a-49(a)(2) and 53a-59(a)(1), and assault in the second degree in violation of General Statutes § 53a-60(a)(2).

The jury could have reasonably found the following facts with respect to the offenses charged in the first information. On September 10, 1984, James Brown was walking toward a pay telephone at the Unity Plaza shopping center on Barbour Street in Hartford when the defendant walked up to him, grabbed him by the shirt and said, "Let me see what you got in your pockets." The defendant felt inside Brown's pockets and took $20 out of one of them. The defendant then punched Brown once in the jaw. As a crowd gathered, the defendant told the crowd to stand back and made a gesture with his hand that gave Brown the impression that the defendant had a gun. The defendant then left the scene.

Brown testified that he was acquainted with the defendant prior to this incident and had had a disagreement with him about two months earlier concerning a stereo cassette player that the defendant had accused Brown of taking. Brown admitted having seen the cassette player on one occasion, but denied having taken it.

The jury could have reasonably found the following facts with respect to the offenses charged in the second information. On October 13, 1984, Frank Bell was in front of his apartment building on South Marshall Street in Hartford with a friend when he saw the defendant. Bell knew the defendant. The defendant made the comment "I got it good," which Bell interpreted to refer to drugs. The defendant followed Bell and his friend into the apartment building. The defendant then struck Bell several times on the back of the head with a gun. Bell fell to the ground, and his friend began screaming. The defendant then shot the gun toward the wall and told her to "shut the hell up." When Bell "got sick of getting hit in the head," he got up and pushed the defendant against a wall, causing him to drop the gun. The defendant then said, "Frank, don't fight me. Just give me what you got." The defendant retrieved the gun and put it to Bell's nose, saying "Give it up." The defendant tried to reach into Bell's back pocket, but Bell pushed him away. The defendant then looked around and, noticing that Bell's friend was gone, left the building.

At trial, the defendant testified. With respect to the September 10 incident involving Brown, the defendant stated that he had known Brown for some time prior to that date. The defendant accused Brown of having stolen a cassette player from him and said that Brown had agreed to reimburse him but had failed to do so. On September 10, according to the defendant's testimony, he saw Brown at the Unity Plaza shopping center and asked him for payment. According to the defendant, Brown gave him $20, but the defendant told Brown that was not sufficient. A fight ensued between Brown and the defendant. The defendant then left the area.

With respect to the October 13 incident involving Bell, the defendant testified that he had known Bell for some time prior to that date. Two years earlier, the defendant explained, he had sold Bell some stereo equipment for which Bell had not yet paid in full. On October 13, according to his testimony, the defendant saw Bell outside the apartment building and asked if Bell was going to "take care of" him. Bell said "Yes," and said that he would go to his apartment upstairs for a minute. The fight ensued, the defendant testified, when he felt that Bell was stalling about paying him. The defendant explained that he and Bell "just started tussling." The defendant admitted that he pulled out the gun and hit Bell five or six times on the head with it. The defendant testified that the gun discharged accidently when he picked it up later in the fight.

In its general charge on circumstantial evidence, the trial court instructed the jury that "proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts." The court's instructions then included the all too familiar language that "[s]uch an inference may be made provided two elements in the application of the rule are satisfied. One, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt, and, two, that the inference that you are asked to draw, not only is logical and reasonable, but is strong enough that you can find that it is more probable than not that the fact to be inferred is true." (Emphasis added.) The defendant argues that this instruction constituted reversible error because, he claims, intent was an important and disputed issue in both cases and that this disputed issue was, of necessity, resolved by inferences drawn from circumstantial evidence.

Because the defendant failed to file a request to charge on circumstantial evidence and failed to except to the court's jury charge, we must first determine whether this claim is reviewable. The instruction was given in 1985, prior to our Supreme Court's rulings in State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986), and State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985). It is now clear both that the instruction is regarded as incorrect and that the defendant's unpreserved claim is reviewable. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. James, 211 Conn. 555, 580-81, 560 A.2d 426 (1989); State v. McDonough, 205 Conn. 352, 354-56, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1079, 99 L.Ed.2d 238 (1988).

"While we have consistently held such a charge to be erroneous, such error is not reversible unless it can be shown that it was reasonably possible that the jury was 'misled [by the charge] to believe that they were to apply any standard other than that of "beyond a reasonable doubt" in determining the guilt of the accused.' State v. Miller, [202 Conn. 463, 491-92, 522 A.2d 249 (1987) ]; State v. Robinson, [204 Conn. 207, 210-11, 527 A.2d 694 (1987) ]; State v. Whelan, [200 Conn. 743, 756-57, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986) ]." State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987). "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 evidence plays the major role." State v. McDonough, supra, 205 Conn. at 358, 533 A.2d 857; State v. Banta, 15 Conn.App. 161, 179, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). The reason for this distinction is that it is in only those cases where the verdict is dependent on jury consideration of circumstantial evidence that it is reasonably possible that the jury was misled by the erroneous instruction. State v. McDonough, supra, 205 Conn. at 360-61, 533 A.2d 857.

"If the principal disputed issue is intent, which is typically proven by circumstantial evidence, ' "we will closely scrutinize the court's instructions" on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state's burden of proof.' " State v. Hufford, supra, 205 Conn. at 407-408, 533 A.2d 866, quoting State v. Robinson, supra, 204 Conn. 210, 527 A.2d 694. The defendant contends that "the crux of [his] trial strategy was to show through both cross-examination of the state's witnesses and testimony of defense witnesses that the defendant had no intent to rob or assault Brown and Bell." The state, on the other hand, argues that this...