State v. Gonzalez, 14401

• Court: Supreme Court of Connecticut
• Citation: 609 A.2d 1003,222 Conn. 718
• Docket Number: No. 14401,14401
• Parties: STATE of Connecticut v. Jose J. GONZALEZ.
• Decision Date: 07 July 1992

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609 A.2d 1003 222 Conn. 718 STATE of Connecticut
v.
Jose J. GONZALEZ. No. 14401. Supreme Court of Connecticut. Argued March 25, 1992.
Decided July 7, 1992.

Peters, C.J., issued opinion concurring in judgment, in which Berdon, J., joined.

[222 Conn. 719] Deborah L. DelPrete, Deputy Asst. Public Defender, with whom were Richard Emanuel, Asst. Public Defender, and, on the brief, G. Douglas Nash, Public Defender, and Suzanne Zitser and Kent Drager, Asst. Public Defenders, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Stephen J. Sedensky III, Asst. State's Atty., for appellee (state).

Before [222 Conn. 718] PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

[222 Conn. 719] CALLAHAN, Associate Justice.

The defendant, Jose J. Gonzalez, was charged in a substitute information with the crimes of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a(a), ¹ assault in the first degree [222 Conn. 720] in

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violation of General Statutes § 53a-59(a)(1), carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37(b), and having a weapon in a motor vehicle in violation of General Statutes § 29-38. The trial court granted the defendant's motion for acquittal on the second count of the information charging assault in the first degree. A jury convicted the defendant of the remaining three counts. The trial court thereafter rendered judgment in accordance with the verdict and sentenced the defendant to a term of imprisonment of twenty years, suspended after fourteen years, and probation for a period of five years on the conviction of attempted murder. The trial court also imposed concurrent terms of four years each on the convictions of carrying a pistol without a permit and having a weapon in a motor vehicle.

The defendant appealed to the Appellate Court claiming that the trial court improperly: (1) failed to investigate or inquire into an allegation of possible juror misconduct; (2) charged the jury concerning the [222 Conn. 721] attempt element of the crime of attempted murder; and (3) denied the defendant's motion for judgment of acquittal on the basis that the evidence produced was insufficient to support his convictions.

The Appellate Court determined that there was an inadequate factual record to decide the issue of juror misconduct and remanded the case to the trial court for a hearing to ascertain whether there had, in fact, been juror misconduct and, if so, whether the defendant had been prejudiced. ² State v. Gonzalez, 25 Conn.App. 433, 436-40, 596 A.2d 443 (1991). The Appellate Court also concluded that there had been sufficient evidence produced at the defendant's trial to sustain his convictions; id., at 443-45, 596 A.2d 443; and that the trial court had properly instructed the jury concerning the attempt element of attempted murder. Id., at 440-43, 596 A.2d 443.

The defendant thereafter petitioned this court for certification. We granted certification limited to the following question: "Did the Appellate Court properly conclude that the trial court properly instructed the jury on attempt liability under General Statutes § 53a-49(a)(1)?" State v. Gonzalez, 220 Conn. 928, 598 A.2d 1099 (1991).

We conclude that the Appellate Court was incorrect when it determined that the trial court had properly instructed the jury on attempt liability pursuant to § 53a-49(a)(1). The jury, in light of the evidence, should have been instructed on attempt liability pursuant to § 53a-49(a)(2). Because, however, any impropriety in the trial court's instructions concerning attempt liability[222 Conn. 722] was rendered harmless by other portions of the court's charge, we affirm the Appellate Court's judgment.

The facts leading to the defendant's arrest and conviction are set forth in considerable detail in the Appellate Court's opinion. State v. Gonzalez, supra, 25 Conn.App. at 435-36, 596 A.2d 443. For present purposes, suffice it to say that the jury found that the defendant was involved in an altercation with the victim over a traffic incident and shot the victim in the throat with a .25 caliber handgun. The bullet entered the victim's neck under his chin

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and lodged behind his left ear. The victim was hospitalized for two to four days and suffered a permanent loss of feeling in the left side of his neck.

The substitute long form information that charged the defendant with attempted murder did not specify upon which subdivision of § 53a-49(a) the defendant's culpability was predicated. The trial court, tracking the information, initially instructed the jury by referring to the entire text of § 53a-49(a), thereby indicating to the jury the applicability of both subdivisions (a)(1) and (2) to the charge of attempted murder. ³

During its subsequent deliberations, the jury requested that it be reinstructed as to the definition of attempted murder. The trial court, in responding, first read the statutory definition of murder and explained the element of intent. The court then discussed the requirements necessary for a jury to find that there had been an attempt pursuant to § 53a-49(a)(1). Next, when the court began to instruct [222 Conn. 723] the jury on the requirements for the finding of an attempt pursuant to § 53a-49(a)(2) the following colloquy ensued:

"The Court: This second part of the attempt statute provides that a person is guilty of attempting to commit a crime if, acting with the kind of mental state required for the commission of the crime, he intentionally does or omits to do anything which, under the circumstances as he believed them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his commission of the crime. It's charged that way. But I don't think that section applies very well. It says to do with a plan, carrying out, steps.

"Assistant State's Attorney: I'm satisfied.

"The Court: I think if you just limit your consideration to the first part as I've given it to you, you'll have to determine whether the state has met its obligation there. The distinction is that, in this section, it's talking about an act or omission in carrying out a plan to culminate in the commission of the crime of murder. This has more to do with those individual, itemized factors which I have given to you previously. And I think if you look at them, you would disregard them as being in this case. That's lying in wait, enticing. That's not in this case.

"The question here is whether--if this gentleman was at the scene and was involved in the conflict, your question is whether or not he, at that moment, was armed. Knowing that he was and that he knowingly and intentionally pulled out a gun and shot the victim with the intent to take the victim's life, the fact that it wasn't accomplished is the basis of the attempt to commit murder. Okay? You may resume."

The defendant did not object to the trial court's supplemental instructions. He argued on appeal to the [222 Conn. 724] Appellate Court, however, that his constitutional rights had been violated because the trial court's supplemental instructions removed from the jury's consideration subdivision (a)(2) of § 53a-49, which was, in reality, the only subdivision of the statute that had application to the facts of his case. He argues that, consequently, he was convicted of having committed an attempted murder pursuant to a subdivision, subdivision (a)(1) of § 53a-49, for which there was no evidentiary foundation. ⁴ State v. Gonzalez, supra, 25 Conn.App. at 440-41, 596 A.2d 443.

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We agree with the defendant that the trial court incorrectly focused the jury's consideration on whether the defendant had committed an attempt pursuant to § 53a-49(a)(1). An instruction on that subdivision should be given when the evidence indicates that a perpetrator failed to accomplish or complete all the elements of a particular crime solely because the "attendant circumstances" were not as the perpetrator believed them to be, rendering the commission of the crime impossible. Examples of a violation of § 53a-49(a)(1) would be a pickpocket's failure to complete a larceny because his hand was in an empty pocket, or an attempt by an accused to bribe a juror but mistakenly approaching a nonjuror. United States v. Conway, 507 F.2d 1047, 1050 (5th...