State v. Fuller

• Decision Date: 25 March 1986
• Citation: 506 A.2d 556,199 Conn. 273
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Willie J. FULLER.

Page 556

506 A.2d 556

199 Conn. 273

STATE of Connecticut v. Willie J. FULLER.

Supreme Court of Connecticut.

Argued Jan. 7, 1986.

Decided March 25, 1986.

John Watson, Asst. Public Defender, with whom was Joette Katz, Public Defender, for appellant (defendant).

Guy W. Wolf III, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Laura Ingersoll, Legal Intern, for appellee (State).

Before PETERS, C.J., and HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Justice.

The defendant was charged in an amended information with robbery in the first degree in violation of General Statutes § 53a-134 ¹ and was found guilty by a jury. The trial court sentenced him to imprisonment for twelve years, suspended after eight years. He appeals from the judgment rendered on the verdict. We find error.

The only issues we need consider on appeal are the defendant's claims that the trial court erred by failing to instruct the jury: (1) that it could consider the threat of the imminent use of physical force upon a third person as an element of the defense of duress and (2) that it was the state's burden to disprove duress, beyond a reasonable doubt. When we are reviewing a trial court's failure to charge as requested, "we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support." State v. Anonymous (1977-9), 34 Conn.Sup. 612, 616, 380 A.2d 7 (1977); see State v. Cassino, 188 Conn. 237, 239, 449 A.2d 154 (1982); State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980).

The defendant was arrested as a result of a robbery which occurred in New Haven in the early evening of September 8, 1982. The victim, Tracy Serfilippi, was employed as a pizza deliveryman. On the evening of the robbery, he was making deliveries in a jeep when, unable to locate an address, he stopped and asked the defendant, whom he knew by sight, for directions. The defendant got into the front passenger seat and went with the victim. The two were unsuccessful in making the delivery and returned to the corner of Congress and Hallock Streets where they had originally met. At this point, Raymond Beverly, who was acquainted with the defendant, but not with the victim, got into the rear seat. All three then drove to the area of Sylvan Avenue, where Beverly left the jeep for a few minutes. When he returned and resumed his seat, he produced a gun and waved it about, pointing it at both the defendant and the victim. The defendant testified that Beverly was "wild" and acting "crazy" and that he feared that Beverly might shoot. Pleading with Beverly not to shoot, the defendant reached over and took money from the victim and threw it in the rear seat. He claimed that he did so because the victim was not moving fast enough and he thought Beverly was going to shoot him.

The defendant also testified that he had not planned the robbery with Beverly and that he had tried to tell the victim that he was not involved, but that the victim was hysterical and would not listen. The defendant did not dispute that the victim had been robbed and that he had participated in the robbery. He maintained, however, that he had been coerced into doing so and offered a defense of duress.

Needless to say, the victim's account of what occurred differed substantially from that of the defendant and was considerably less laudatory of the defendant's efforts and motivation than the version recited above. The victim did, however, testify that the defendant told Beverly not to shoot.

The defendant filed a written request to charge concerning his claimed defense of duress in which he asked the trial court to charge the entire text of General Statutes § 53a-14 ² and also to instruct the jury that it was the burden of the state to disprove the defense of duress beyond a reasonable doubt. ³ The trial court charged as to the defense of duress and read a major portion of General Statutes § 53a-14 to the jury. However, it omitted the words "or a third person," and thereby removed from the jury's consideration the defendant's claim that his participation in the robbery was coerced by the threatened imminent use of physical force upon the victim as well as upon himself. The trial court also failed to instruct the jury that it was the burden of the state to disprove the defense of duress beyond a reasonable doubt. See General Statutes § 53a-12. ⁴ Although the defendant duly excepted, the trial court did not expand on its charge.

Duress is a legally recognized defense in this state; State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979); and the legislature by statute has provided that the threatened imminent use of physical force upon a third person may constitute duress. See General Statutes § 53a-14. The state contends that there was insufficient evidence that the defendant was coerced by any threat of physical force directed toward the victim so as to require the court to charge that the defense of duress could be predicated on the threatened imminent use of physical force upon a third person. We disagree.

"When a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate." Id., 707, 425 A.2d 108. If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. Id., 707-708, 425 A.2d 108. "[A] defendant is 'entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible....' United States v. Platt, 435 F.2d 789, 792 (2d Cir.1970), quoting United States v. O'Connor, 237 F.2d 466, 474 n.8 (2d Cir.1956)." United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir.1976). "A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920 [1923], 18 L.Ed.2d 1019 (1967)...." State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). Where the legislature has created a legally recognized defense, in this case duress, this fundamental constitutional right includes a proper jury instruction on the elements of the defense of duress so that the jury may ascertain whether the state has met its burden of disproving it beyond a reasonable doubt. See State v. Miller, supra, 660-61, 443 A.2d 906.

The defendant testified that Beverly had been "wild," had acted "crazy" and had waved a gun around, pointing it at both him and the victim, and that he had been afraid that Beverly might shoot. He also testified that he had taken the money from the victim and had thrown it in the rear seat because he had thought Beverly might shoot the victim. If the defendant's testimony is taken in the light most favorable to supporting his request to charge, as it must be; State v. Arroyo, supra, 181 Conn. 430, 435 A.2d 967; it might have provided sufficient evidence for the jury to find that the defendant participated in the robbery because he was coerced by the threatened imminent use of physical force upon Serfilippi as well as upon himself. The court's charge, however, prevented the jury from giving any consideration to the threatened imminent use of physical force upon the victim as motivation for the defendant's participation in the robbery. Since there was evidence to support the defendant's request to charge, the failure of the trial court to include any reference to "a third person" in its jury instructions deprived the defendant of the opportunity to present a legally recognized defense. " '[T]he charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.' " State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980). Because it is reasonably possible that, in this instance, the trial court's charge did not perform that function but rather misled the jury, we find error. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982).

The defendant also assigns as error the failure of the trial court to instruct the jury that it was the state's burden to disprove the defense of duress beyond a reasonable doubt. The trial court did charge the jury that, in order to convict the defendant of robbery, the state had to prove his intent to commit that crime beyond a reasonable doubt. The state's position is that, since duress would negate intent, the court's charge effectively instructed the jury that it was the state's burden to disprove duress...