State v. Farrar

• Decision Date: 22 April 1986
• Docket Number: 3253,Nos. 3245,s. 3245
• Citation: 508 A.2d 49,7 Conn.App. 149
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Thomas FARRAR. STATE of Connecticut v. Clinton LANGLEY.

Page 49

508 A.2d 49

7 Conn.App. 149

STATE of Connecticut v. Thomas FARRAR.

STATE of Connecticut v. Clinton LANGLEY.

Nos. 3245, 3253.

Appellate Court of Connecticut.

Argued Feb. 5, 1986.

Decided April 22, 1986.

John R. Williams, with whom, on brief, was Barbara Goren, New Haven, for appellants (defendant in each case).

James G. Clark, Deputy Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Mary Galvin, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and BORDEN and DALY, JJ.

BORDEN, Judge.

In these combined appeals, the defendants appeal from the judgments of conviction. Both defendants were convicted of attempted sexual assault in the first degree, in violation of General Statutes §§ 53a-49(a) and 53a-70(a), and robbery in the first degree, in violation of General Statutes § 53a-134(a)(3). The defendant Thomas Farrar was also convicted of carrying a dangerous weapon, in violation of General Statutes § 53-206(a). Each defendant raises five identical claims of error, the most serious of which is that the trial court committed reversible error by instructing the jury that they could use a "more probable than not" standard in drawing inferences from circumstantial evidence. The defendants raise four other claims of error: (1) the denial of their motions to suppress identification testimony by the victim; (2) the improper exclusion of evidence offered by them; (3) the improper denial of access by their counsel to the victim and her family during the trial; and (4) the lack of effective assistance by their trial counsel. We find no error.

The jury could have reasonably found the following facts: On February 13, 1983, the day before the victim's birthday, there was a blizzard in New Haven. While the victim was shoveling snow at her house after work, she saw two men loitering across the street. That evening, she attended a birthday party for herself and a neighbor at the neighbor's house. After returning to her home at about 4:30 a.m., she left to buy cigarettes at an all-night convenience store on Dixwell Avenue. About three or four houses from her house, she was attacked by two men. A tall black man grabbed her around the neck, and she felt a sharp object in her back. The man told her he had come back because she told the first time. See footnote 1, infra. As she broke free, the man grabbed the back of her pants, breaking the front fasteners. She ran across the street, where a second black man, shorter than the first, grabbed her, saying "I'm gonna have sex with you." As he grabbed her, he broke the chain of a "Happy Birthday" medallion which she was wearing, and which she felt slide off her neck. She heard the first man yell to the second to let her go because it was not worth it. The second man responded that "he was going to get it anyway." When she saw them, she realized that they were the same men who had sexually assaulted her the previous October. ¹ She looked carefully at their faces and recognized them. She also recognized them as the two men who had been loitering across the street while she was shoveling snow the previous afternoon. The second man tried to pull down her pants but she managed to escape and run to the convenience store, where the attendant called the police, who arrived shortly thereafter. The victim described the men to the police as two black men, one about 6 feet to 6 feet, 4 inches tall and wearing a tan waist-length jacket, wool cap and jeans; the other as shorter, and wearing a red or burgundy jacket.

Meanwhile, officer Daniel Lorenz of the New Haven police department, armed with the description of the two men, stopped Farrar for questioning on Sheffield Street, which is in the same general neighborhood. Shortly thereafter, the defendant Clinton Langley stepped out of the shadows. Lorenz detained them and radioed to the police at the convenience store that suspects were detained. The police brought the victim to the scene of the detention on Sheffield Street. She immediately recognized the men as her assailants and positively identified them. The defendants were arrested and searched. Farrar was carrying a knife, and in his pocket was the victim's broken chain and "Happy Birthday" medallion.

JURY CHARGE ON CIRCUMSTANTIAL EVIDENCE

The trial court, in charging the jury on circumstantial evidence and drawing inferences, instructed them that they could draw inferences from the circumstantial evidence if "the inference that you are asked to draw or that you consider drawing is not only logical and reasonable but it is strong enough so that you find that it is more probable than not that the fact to be inferred is true." (Emphasis added.) ² The defendants claim that this charge unconstitutionally diluted the state's burden of proof to establish guilt beyond a reasonable doubt, and that the recent case of State v. Rodgers, 198 Conn. 53, 56-59, 502 A.2d 360 (1985), is dispositive. The state responds that the charge, if erroneous, does not constitute reversible error, and that the recent case of State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, --- U.S. ---, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986), is dispositive. ³ These two competing claims require us to confront these two Supreme Court decisions, which are certainly divergent in result and appear at first glance to be divergent in approach.

On August 6, 1985, the Supreme Court decided State v. Reddick, supra, where the trial court used language in its jury charge; id., 130 n. 4, 496 A.2d 466; identical to the language which the defendants challenge in this case. The Supreme Court, reading the challenged language not in isolation but as part of the overall charge, and considering the likely effect of that overall charge on the jury, held that "[o]n this record, it is not reasonably possible that the jury was misled by the alleged errors in the court's instructions." Id., 132, 496 A.2d 466. While not explicitly saying that the challenged language was erroneous, its conclusion that it was not reasonably possible that the jury was misled by the charge was an implicit suggestion that the charge was erroneous, and it was an explicit holding that the error was nonetheless not reversible. See State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Torrence, 1 Conn.App. 697, 703-704, 476 A.2d 598 (1984), aff'd, 196 Conn. 430, 493 A.2d 865 (1985). In reaching this conclusion, the court emphasized that, despite the challenged language, the trial court, by its repeated references to the proper burden of proof, "made abundantly clear to the jury that the burden of proof as to every element of the offenses charged was on the state, and that this burden had to be satisfied beyond a reasonable doubt." State v. Reddick, supra. The court also emphasized, in responding to a related argument by the defendant, that "[i]n the case before us, intent was not a disputed element; identification was the only contested issue." Id., 133, 496 A.2d 466.

On December 17, 1985, the Supreme Court decided State v. Rodgers, supra, in which the trial court used language in its jury charge almost identical to the language which the defendants challenge in this case. The Supreme Court, without distinguishing, citing or referring to State v. Reddick, supra, agreed with the defendant "that the requisite standard of proof beyond a reasonable doubt was impermissibly diluted by the trial court's instruction that an inference may be drawn [from circumstantial evidence] provided 'that it is more probable that the fact to be inferred is true.' " State v. Rodgers, supra, 198 Conn. 57, 502 A.2d 360.

The defendants claim that Rodgers overruled Reddick sub silentio. We are not prepared to indulge in the pre- that the Supreme Court would so cavalierly overrule such recent authority without even acknowledging that it was doing so. Although the two cases do appear to evince two divergent appellate approaches to the same claim, a careful reading of Rodgers convinces us that it is distinguishable from Reddick, and that the two peacefully co-exist.

In Rodgers, the court emphasized that "[m]uch of the evidence produced by the state was circumstantial evidence, especially that bearing on the issue of criminal intent as it related to the crimes charged in the substitute information." Id., 198 Conn. 58, 502 A.2d 360. It also emphasized that "[t]he trial court twice gave ... [the challenged] instruction to the jury, once during its general instructions on burden of proof, and again during its specific instructions on the elements of sexual assault in the first degree." Id., 58 n. 2, 502 A.2d 360. In Reddick, however, the court emphasized that the evidence against the defendant was principally identification, not circumstantial, evidence, that intent was not a disputed issue, and that the challenged instruction was not repeated as part of the definitions of the elements of the charged offenses.

The differing analyses in these two cases are consistent with the established principle that the trial court's instructions must be examined with reference to the factual issues in the case. State v. Torrence, supra, 1 Conn.App. 705, 476 A.2d 598; State v. Grant, 6 Conn.App. 24, 28, 502 A.2d 945 (1986). Where the principal factual issue is intent, which is characteristically proven by circumstantial evidence; see State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); the trial court's instructions regarding the use of circumstantial evidence as proof of this essential element are subject to close scrutiny. See State v. Rodgers, supra, 198 Conn. 58, 502 A.2d 360. Where, as here, the principal factual issue is identity, which is not classically dependent upon circumstantial evidence for its proof, the trial court's instructions may be read as a whole to determine whether it is reasonably possible that the jury was misled by an erroneous explanation regarding the use of circumstantial evidence. See State v....