State v. Evans

• Decision Date: 05 June 1973
• Citation: 165 Conn. 61,327 A.2d 576
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jerome EVANS.

Page 576

327 A.2d 576

165 Conn. 61

STATE of Connecticut v. Jerome EVANS.

Supreme Court of Connecticut.

June 5, 1973.

Igor I. Sikorsky, Jr., Sp. Public Defender, for appellant (defendant).

Walter H. Scanlon, Asst. State's Atty., with whom, on the brief, was Francis M. McDonald, State's Atty., for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

HOUSE, Chief Justice.

This appeal was taken from the judgment rendered by the trial court and from its denial of the defendant's motion to set aside, as contrary to law and to the evidence, a jury verdict finding the defendant guilty of the crime of aggravated assault in violation of § 53-16 of the General Statutes.

Such a ruling by the trial court is tested by the evidence printed in the appendices to the briefs. State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234; State v. Kearney, 164 Conn. 315, 318 A.2d 100. An examination of this evidence discloses that the jury could have found the following facts: About 4:15 on the early morning of May 23, 1970, two police officers found the defendant sprawled on a bench outside 55 Bishop Street in Waterbury. The defendant was awakended and said that he was all right and the police officers thereupon continued their partrol. Before they had gone very far, the defendant yelled an obscenity at them. The police officers turned, saw the defendant pointing at them, saw a flash at the end of his hand and heard a loud crack. The defendant then ran toward the building at 55 Bishop Street. The police officers pursued him and one of them saw the defendant toss a gun inside the doorway. The defendant was apprehended and at about the same time the police officers' supervising sergeant arrived at the scene in his patrol car. One of the police officers retrieved the gun. It was found to have an odor of gunpowder and to contain six shells, five live and one expended.

The statutory crime of aggravated assault ¹ consists of common-law assault committed with a deadly or dangerous weapon. State v. Bitting, 162 Conn. 1, 6, 291 A.2d 240; State v. Pallanck, 146 Conn. 527, 530, 152 A.2d 633. The loaded gun recovered by the police and introduced in evidence was a .22 caliber Kohn revolver-a deadly weapon per se. State v. Pallanck, supra. The intent necessary for aggravated assault is the same as for common-law simple assault-general intent inferrable from the commission of the act itself. State v. Bitting, supra. The act of firing a gun in the direction of another, with the general intent to frighten or to wound, is sufficient to constitute aggravated assault. State v. Smith, 157 Conn. 351, 354, 254 A.2d 447; State v. Pallanck, supra. From the evidence submitted for their consideration, the jury could reasonably and logically have found that the defendant, with the requisite intent, did point and discharge a revolver in the direction of the police officers and that he then tossed the revolver into the door-way whence it was retrieved by the police officers and at the trial submitted in evidence. The court properly denied the motion to set aside the verdict.

The defendant assigned as error two rulings on the admissibility of evidence. One, the ruling that the gun was admissible as an exhibit, has not been briefed and is, therefore, deemed abandoned. State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246; State v. Benson, 153 Conn. 209, 217, 214 A.2d 903. His second claim is that the court erred in ruling that the defense on cross-examination could not inquire of a police officer his opinion as to whether the area of the incident had a 'high crime rate.' We find no merit in this assignment of error. The trial court has wide discretion in its rulings on the relevancy of evidence. State v. Towles, 155 Conn. 516, 523, 235 A.2d 639; State v. Keating, 151 Conn. 592, 597, 200 A.2d 724, cert. denied, sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S.Ct. 654, 13 L.Ed.2d 557; State v. Bassett, 151 Conn. 547, 551, 200 A.2d 473. Even if the question had been asked on the direct examination of a witness, we would see no abuse of discretion in the court's ruling. There was certainly no apparent error in the exclusion of the question in the present case where the question was asked on cross-examination and there is no indication that the subject of the inquiry was raised on the direct examination. 'Cross-examination, insofar as if does not take the form of an attack on the credibility of the witness, is limited to the subject matter of the direct examination.' State v. Manning, 162 Conn. 112, 116, 291 A.2d 750, 753.

The defendant's final assignment of error asserts that the court erred in failing to find one paragraph of his draft finding. This paragraph of his verbatim portion of the argument of the state's attorney to the jury and in addition to that portion a characterization of it in these words: '(T)he state evoked highly prejudicial and emotional appeals which were damaging and which were totally unrelated to any evidence presented during the trial. Said reference sought to involve the case in revolutionary attacks on police totally absent any evidence as to motive.' The court did include in its finding the full portion of the argument which the defendant sought to have included in the finding but refused to include therein the defendant's argumentative characterization of the comments. There was certainly no error in the refusal of the court to make this characterization a portion of its finding. Furthermore, not until the appeal to this court were the comments of the state's attorney objected to by counsel for the defendant. In the trial court there was no objection, no request to charge the jury about the argument and hence no ruling by the court and no exception taken. What this court said in Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342-343, 160 A.2d 899, 902, is pertinent: 'The trial court is vested with a large discretion with regard to the arguments of counsel, and while its action is subject to review and control, we can interfere only in those cases where the discretion was clearly exceeded or abused to the manifest injury of some party. James v. Bowen, 83 Conn. 702, 706, 78 A. 420. The failure, here, to take exception to the remarks at the time they were made or at the close of the argument constituted a waiver of the right of the defendants to press this claim of error. State. v. Kirschenbaum, 109 Conn. 394, 409, 146 A. 837; Kurland v. Massachusetts Amusement Corporation, 307 Mass. 131, 140, 29 N.E.2d 749. In the absence of such an exception by the defendants, a motion for mistrial, or a request to charge, made before the charge, we cannot say that the trial court abused its discretion. Weller v. Fish Transport Co., 123 Conn. 49, 61, 192 A. 317; Altieri v. Peattie Motors, Inc., 121 Conn. 316, 322, 185 A. 75; State v. Laudano, 74 Conn. 638, 646, 51 A. 860.' 'Unless a substantial injustice is shown, we are not required on appeal to entertain a claim which was not made in or passed upon by the trial court. State v. Rafanello, 151 Conn. 453, 456, 199 A.2d 13; Paley v. Connecticut Medical Examining Board, 142 Conn. 522, 529, 115 A.2d 448.' State v. Fredericks, 154 Conn. 68, 72, 221 A.2d 585, 587. What this court said over one hundred years ago still remains true today. A defendant must avail himself of the opportunity to make an objection and if he 'does not avail himself of the opportunity, he must he holden to a waiver of the objection. Otherwise he would be permitted to lie by and speculate upon the chances of a verdict, and that cannot be tolerated.' State v. Tuller, 34 Conn. 280, 295.

There remain for consideration two other briefed contentions of the defendant which were never raised in the trial court by pleading, by motion or by objection and hence were never, so far as the record indicates, considered by the trial court. It is perhaps for this reason that they were not even mentioned in the defendant's assignments of error because the defendant could hardly claim with any reasonable justification that the trial court committed error in ruling on questions on which it never ruled and on which it was never called on to rule. We thus have a situation where in his brief on this appeal the defendant has raised for the first time two claims that his federal constitutional rights were violated in the proceedings in the trial court. We discuss these two claims in a further effort to clarify a misunderstanding which seems to prevail among some members of the bar-that § 652 ² of the Practice Book does not apply to claimed errors of constitutional dimensions. Contrary to the impression which seems to prevail in some quarters, it is not true that defense counsel in criminal case may through neglect, inattention attention or as a trial strategy refrain from making proper objection or raising in the trial court any available constitutional defenses, confident that if the outcome of the trial proves unsatisfactory without making objections and taking exceptions and raising any available constitutional issue they may still prevail by assigning error or raising the constitutional issue for the first time on the appeal. We have repeatedly reiterated that this court will not consider claimed errors on the part of the trial court unless there has been a compliance with the provisions of § 652 of the Practice Book. See State v. Hawkins, 162 Conn. 514, 517, 294 A.2d 584; Weyls v. Zoning Board of Appeals, 161 Conn. 516, 521, 290 A.2d 350; State v. Smith, 156 Conn. 378, 386, 242 A.2d 763; State v. Spellman, 153 Conn. 65, 67-68, 212 A.2d 413.

The misapprehension of counsel appears to have arisen from our decision in State v. Vars, 154 Conn. 255, 271-272, 224 A.2d 744, in which we held that our procedural rule must yield to the authority of O'Connor v. Ohio, 385 U.S. 92, 93, 87 S.Ct. 252, 17 L.Ed.2d 189, but, as we noted in State v. Darwin, 155 Conn. 124, 142, 230 A.2d 573, reversed on other...