State v. Garrett, 14385

• Decision Date: 13 August 1996
• Docket Number: No. 14385,14385
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert L. GARRETT.

Page 362

681 A.2d 362

42 Conn.App. 507

STATE of Connecticut v. Robert L. GARRETT.

No. 14385.

Appellate Court of Connecticut.

Argued February 14, 1996.

Decided Aug. 13, 1996.

Kelly J. Goulet, Deputy Assistant Public Defender, for appellant (defendant).

Ronald G. Weller, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and William G. Bumpus, former Assistant State's Attorney, for appellee (State).

Before FOTI, LANDAU and SCHALLER, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 ¹ and interfering with an officer in violation of General Statutes § 53a-167a. ² On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal directed to the charge of burglary in the third degree based on his assertion that the state failed to prove an essential element of the crime beyond a reasonable doubt, (2) deprived him of his right to a fair trial by permitting the state to engage in prosecutorial misconduct during closing argument, and (3) instructed the jury on reasonable doubt thereby depriving him of his federal right to due process. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 30, 1992, at approximately 8 p.m., members of the Hartford police department were dispatched to Blonder's Used Auto Parts at 741 Windsor Street in response to an activated burglar alarm. Harry Satterfield, the first officer to arrive, found the front and side doors of the building secure. As he approached the rear loading dock, however, Satterfield observed the defendant open an overhead door from inside the building and step onto the loading dock. Several tires and wheel rims were stacked inside next to the door.

Satterfield shined his flashlight on the defendant, drew his service revolver and ordered the defendant to halt. The defendant yelled, "It's the cops," and ran back inside the building, closing the overhead door behind him. Within minutes, other officers arrived and surrounded the building. As several officers searched inside the building, another officer observed the defendant run from the direction of the rear of the building and crawl under a parked storage trailer. Thereafter, the defendant was apprehended and identified by Satterfield as the person he observed on the loading dock.

The jury convicted the defendant on October 5, 1992, and the defendant did not take a direct appeal from the judgment. In December, 1993, the defendant, pro se, filed a petition for a writ of habeas corpus alleging that, due to ineffective assistance of counsel, no appeal had been filed on his behalf. After counsel was appointed to represent the defendant, an amended petition with the same allegation was filed. On December 7, 1994, the habeas court accepted a stipulation in which the state and the defendant agreed that the defendant's right to appeal should be restored and rendered judgment in accordance with the stipulation, and this direct appeal was filed. ³ In State v. Phidd, 42 Conn.App. 17, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996) (defendant sought certification to challenge decision on merits of appeal), we held that where a habeas petitioner raises a claim of ineffective assistance of appellate counsel arising out of a failure of counsel to file an appeal and the facts, either by evidence or stipulation, support a finding that the petitioner's appellate rights were unconstitutionally compromised by counsel's ineffective assistance, the habeas court may order the restoration of petitioner's appellate rights as relief in the habeas action. See State v. Daniels, 42 Conn.App. 445, 681 A.2d 337 (1996).

Because we adhere to the strong judicial policy embodied in the doctrine of stare decisis, we do not address the issue decided by Phidd. Rather, we follow our previous holding. Pursuant to Practice Book § 4135, however, we find that the following issues decided by Phidd involve substantial questions of law that should be reviewed by the Supreme Court: (1) whether a habeas court has authority to restore appellate rights, and (2) whether, if such authority exists, a habeas court may restore appellate rights based on its acceptance of a conclusory stipulation by the parties. We, therefore, request certification of these questions. ⁴

I

The defendant first claims that there was insufficient evidence adduced at trial to establish an essential element of the crime of burglary. Specifically, the defendant argues that the state failed to prove that he entered the building unlawfully as specifically alleged by the state in its response to the defendant's motion for a bill of particulars. As a subsidiary matter, the defendant further asserts that the precise language employed by the state precluded the possibility that he could be convicted of burglary based on evidence that he remained in the building unlawfully. ⁵

The following additional facts are relevant to the resolution of this claim. On the date of the burglary, an employee of Blonder's, Scott Parker, closed the business at approximately 7 p.m. Prior to leaving, Parker checked the doors and activated the security system, which includes motion detectors and perimeter devices. At that time, the defendant was not in the building. Later, as the interior of the building was searched, police officers stationed outside observed two other individuals exit the building through a rear second floor window, climb onto a roof and jump over a nearby fence. These individuals fled the area and were not apprehended. When the defendant was apprehended, he was wearing a shoulder bag that contained several hand tools including pliers, an awl, a screwdriver and wrenches.

"When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict.... Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.... In this process of review, the probative force of the evidence is not diminished because it consists, in whole or in part, of evidence that is circumstantial rather than direct." (Citations omitted.) State v. Scales, 38 Conn.App. 225, 228, 660 A.2d 860 (1995).

"In determining whether the defendant is guilty, [i]t is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist.... It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.... Furthermore, in considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door ... nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct." (Citations omitted; internal quotation marks omitted.) State v. Roy, 38 Conn.App. 481, 488-89, 662 A.2d 799 (1995).

From the facts established by the evidence, and the reasonable inferences drawn therefrom, the jury could reasonably have concluded that the defendant entered the building unlawfully. The jury heard testimony that the business closed for the day at 7 p.m., the alarm system was activated at that time, the alarm sounded one hour later at 8 p.m., and the defendant was apprehended as he ran from the rear of the building. The evidence also established that the defendant possessed various tools that could be used to force entry and that at least two other individuals eluded the police by exiting the building through the second floor window. From these facts, the jury could reasonably have inferred that the defendant and the other two men entered the building through the rear second floor window after the business had been closed, thereby activating the security alarm. Thus, the evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant entered the building unlawfully.

Nevertheless, the defendant argues that the state cannot prove that he entered the building unlawfully because there was "no evidence presented as to broken windows or an illegal forced entry." We are unpersuaded. Forcible entry, with or without damage, is not an element of burglary. See, e.g., State v. Gelormino, 24 Conn.App. 563, 571-72, 590 A.2d 480, cert. denied, 219 Conn. 911, 593 A.2d 136 (1991); State v. Kohlfuss, 152 Conn. 625, 637-38, 211 A.2d 143 (1965). Rather, General Statutes § 53a-100(b) provides that "[a] person 'enters or remains unlawfully' in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so." Here, the evidence clearly established that Satterfield observed the defendant inside Blonder's at a time when the building was not open to the public. Moreover, the manager of Blonder's, Brian Boissoneault, testified that the defendant "had no right to be in the building at 8 p.m. after it had been closed."

Because we conclude that the evidence supports the rational conclusion that the defendant entered the building unlawfully, as specifically alleged in the bill of particulars; see State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988); the defendant's assertion that the evidence could have yielded the contrary inference that he entered the building lawfully during business hours and remained there unlawfully--which the state failed to allege in the bill of particulars--is unavailing. See State v. Sivri, 231 Conn. 115,...