State v. Giorgio, 2082

• Decision Date: 26 June 1984
• Docket Number: No. 2082,2082
• Citation: 2 Conn.App. 204,477 A.2d 134
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard A. GIORGIO.

Page 134

477 A.2d 134

2 Conn.App. 204

STATE of Connecticut v. Richard A. GIORGIO.

No. 2082.

Appellate Court of Connecticut.

Argued April 11, 1984.

Decided June 26, 1984.

Daniel V. Presnick, New Haven, for appellant (defendant).

Steven M. Sellers, Deputy Asst. State's Atty., with whom, on the brief, were James Radda, Deputy Asst. State's Atty., and Carl Schuman, Asst. State's Atty., for appellee (state).

Before TESTO, DUPONT and BORDEN, JJ.

DUPONT, Judge.

After a jury trial, the defendant was convicted of criminal impersonation in violation of General Statutes § 53a-130(a). ¹ The defendant has appealed ² claiming that the trial court erred (1) in ruling that the defendant's presence was required during the trial; (2) in denying his motion to dismiss and his motions for judgment of acquittal; and (3) in failing to charge as requested. ³

From the evidence presented at trial, the jury could reasonably have found the following: In the early morning hours of June 28, 1982, Laura McKinley was driving on interstate 95 in New Haven when another car, driven by the defendant, moved in a position parallel to her. The defendant flashed a silver badge, which consisted of a shield in a black leather case, and pointed at her. McKinley pulled over to the side of the highway, as did the defendant. Upon stopping, the defendant walked up to her side window, again flashed the badge and told her she had been speeding. McKinley addressed him as "officer" and handed him her license. The defendant criticized her driving and stated that he would not ticket her because he was in "hot pursuit" of another vehicle. He then returned to his car and drove away. McKinley and her passenger had noted the license number of the defendant's car and reported the incident to the state police.

The defendant is an honorary deputy sheriff of New Haven County. He received the title and badge when he joined a sheriff's association, after having paid dues of approximately $30. The badge is not issued through the office of the chief sheriff, and does not carry with it any power or authority.

I

On the first day of trial, just prior to the presentation of the state's case in chief, the state, prompted by the defendant's absence from the courtroom, moved that the defendant be compelled to be present. The trial court granted the motion. It is the defendant's claim that his forced presence at the trial constituted an impermissible show-up in violation of his constitutional rights because any identification of him would be based on his presence in the courtroom. In the absence of the defendant and the jury, the state's two identification witnesses preliminary testified as to the appearance of the man who stopped McKinley's car. The trial then proceeded with the defendant in attendance.

A defendant has a constitutional right to be present at all stages of his criminal trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); State v. Olds, 171 Conn. 395, 405, 370 A.2d 969 (1976). This right may be waived by the defendant's voluntary and deliberate absence from the trial without good cause, or by his conduct or misconduct. Illinois v. Allen, supra; State v. Parham, 174 Conn. 500, 505, 391 A.2d 148 (1978); Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976).

The defendant argues that he not only has a constitutional right to be present at his trial but a constitutional right to be absent from his trial. Prior Connecticut decisions relating to the right of an accused to be present during criminal proceedings concern claims that a trial should not have been continued in the absence of the defendant. None concerns the power of the court to compel his attendance. The Practice Book, however, substantiates the proposition that there is no right of absence of a defendant from his criminal trial. Practice Book § 967 provides that "[t]he defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing." Practice Book § 968 states that a defendant "must be present at the trial" but may be excused by the court if he is represented by counsel and waives the right to be present. In addition § 969 provides that "[i]f the defendant is not present at the trial or a part thereof ... and his absence has not been excused, the judicial authority, by order, may direct a law enforcement officer to bring the defendant forthwith before the court for the trial or hearing."

Federal cases provide authority for the tenet that, although a court may proceed with a criminal trial if the defendant voluntarily absents himself from it, there is no concommitant right of absence from a criminal trial of a defendant. United States v. Moore, 466 F.2d 547 (3d Cir.1972). There is no due process violation in the requirement that a defendant must attend his own trial even where his identification as the perpetrator of the crime is an integral part of the issues before the jury. Id., 548; see also In re United States, 597 F.2d 27 (2d Cir.1979); United States v. Fitzpatrick, 437 F.2d 19 (2d Cir.1970). In United States v. Meinster, 481 F.Supp. 1112 (S.D.Fla.1979), the court held that although the defendant may not have the right to be absent from his trial, a trial court has the discretion to permit such an absence. Id., 1115. The court, however, denied the defendants' motions to be absent where one wished to attend to business affairs and the other to undergo elective surgery, since neither had shown "a truly compelling need for [their] presence elsewhere." Id., 1117. The federal cases interpret Rule 43 of the Federal Rules of Criminal Procedure, which is analogous to Practice Book §§ 967 and 968. ⁴ In the absence of Connecticut cases interpreting a particular section of the Practice Book, federal cases interpreting similar federal rules may be consulted. State v. Shaw, 185 Conn. 372, 386, 441 A.2d 561 (1981).

In the appeal before us, the defendant wished to absent himself from the courtroom solely and expressly to make it more difficult for the state to prove its case as to his identity. The court did not violate any constitutional right of the defendant in requiring that he be present for trial.

II

The defendant assigns as error the trial court's denial of his motion to dismiss, ⁵ which was based on the claim that General Statutes § 53a-130(a) was unconstitutionally vague, and its denial of his motions for judgment of acquittal for the state's failure to prove the necessary elements of the crime with which he was charged.

The defendant's vagueness claim is couched in general principles of law without application to the facts of this case. It appears, however, that his central concern is the meaning of "public servant," which is not defined in § 53a-130. In construing a statute, other statutes relating to the same subject matter may be looked to for guidance because the legislature is presumed to have created a consistent body of law. Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980); Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 (1978). Section 53a-2 states that the provisions of the penal code apply to any offense defined in that title, unless otherwise expressly provided or unless the context otherwise requires. Section 53a-146 of the code provides definitions applicable to bribery, offenses against the administration of justice and other related offenses. Subsection 3 thereof defines "public servant" as "an officer or employee of government, elected or appointed, and any person participating as adviser, consultant or otherwise, paid or unpaid, in performing a governmental function." Under § 53a-2, this definition applies not only to bribery, offenses against the administration of justice and related offenses but to other sections of the code, including § 53a-130(a). See State v. Perruccio, 192 Conn. 154, 160, 471 A.2d 632 (1984).

"[L]aws may be general in nature so as to include a wide range of prohibited conduct. The constitution requires no more than a reasonable degree of certainty." Id., 160-61, 471 A.2d 632, quoting State v. Chetcuti, 173 Conn. 165, 377 A.2d 263 (1977). Section 53a-130(a) clearly meets that requirement. It is not necessary that the statute list the precise actions prohibited by it. State v. Eason, 192 Conn. 37, 47, 470 A.2d 688 (1984). There is no merit in the defendant's argument that he lacked fair warning that directing another driver to pull off the highway, displaying a badge and delivering a reprimand was proscribed conduct. The court was correct in denying the defendant's "motion to dismiss."

The denial of the defendant's motion for judgment of acquittal ⁶ was also proper. It was the state's burden to prove that the defendant pretended to be a public servant or that he had worn or displayed, without authority to do so, a badge by which such public servant is lawfully distinguished. In other words, the state had the burden of proving the negative fact that the defendant was not a public servant at the time of the offense. The state satisfied this burden. ⁷ It was not required to prove a matter personal to the defendant which would remove him from the operation of the statute, i.e., that he truly was a public servant. State v. Januszewski, 182 Conn. 142, 147, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981).

It was also the state's burden to prove that the defendant had the specific intent "to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense," since such intent is an essential element of the crime. See State v. Carter, 189 Conn. 611, 625, 458 A.2d 369 (1983). Intent may be, and usually is, inferred from conduct. State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977); State v. Sober, 166 Conn. 81, 92-93, 347 A.2d 61 (1974). The defendant's actions and statements were circumstantial proof of his...