State v. Gradzik

• Decision Date: 24 April 1984
• Citation: 193 Conn. 35,475 A.2d 269
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Stanley GRADZIK.

Page 269

475 A.2d 269

193 Conn. 35

STATE of Connecticut v. Stanley GRADZIK.

Supreme Court of Connecticut.

Argued Feb. 1, 1984.

Decided April 24, 1984.

Joseph G. Bruckmann, Hartford, for appellant (defendant).

Katherine J. Lambert, Sp. Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Arthur Hadden, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, ARTHUR H. HEALEY, PARSKEY and GRILLO, JJ.

PARSKEY, Associate Justice.

After a jury trial, the defendant was convicted of burglary in the third degree in violation of General Statutes § 53a-103 and was sentenced to a term of imprisonment of not less than two and one-half years nor more than five years. In this appeal from that conviction the defendant claims that: (1) there was insufficient evidence for the jury to find that the defendant had entered the building and hence the trial court erred in denying the defendant's motion for judgment of acquittal; (2) the trial court's instructions to the jury regarding the lack of an eyewitness to the alleged entry violated the defendant's rights under the fifth and fourteenth amendments to the United States constitution; (3) the trial court erred in denying the defendant's motion for a mistrial on the ground that the state had failed to disclose exculpatory evidence; (4) the trial court's final comments to the jury deprived the defendant of his right to a fair trial and violated General Statutes § 51-245; and (5) the trial court's denial of the defendant's motion for disqualification of the trial judge to sentence him violated the defendant's rights under the fifth, sixth, and fourteenth amendments to the United States constitution. We find no error.

The jury could reasonably have found the following facts: On February 12, 1981, while on patrol in North Branford, Officer Burdett Rice observed an unfamiliar car in the driveway of his brother-in-law David Batty's home. This vehicle was later found to be registered to the defendant. Rice turned around and again drove past the residence, this time observing two males walking toward the rear of the house. Three minutes later, after again turning around, Rice drove up the driveway and parked behind the house. Upon exiting his car, Rice noticed that the right hatchway door leading to the cellar of the house was open. As he approached the hatchway, an individual later identified by Rice as the defendant, exited the hatchway and fled. A second individual, Peter Gaul, ¹ then emerged from the hatchway and was apprehended by Rice. An investigation revealed that a wooden door to the cellar, located at the foot of the hatchway stairs, was open and broken at the hinge. On these steps was a truckload of firewood that had been previously thrown into the hatchway by Batty.

Later that day, Rice identified a photograph of the defendant as the individual who had fled the premises. An arrest warrant was issued and about a week later the defendant turned himself in. When the defendant was in the North Branford police station, Rice again identified the defendant as the person who had fled the scene. By substituted information, the defendant was charged with burglary in the third degree in violation of General Statutes § 53a-103. ²

I

To obtain a conviction of burglary in the third degree the state was required to prove beyond a reasonable doubt that the defendant had unlawfully entered a building, namely the Batty residence, with the intent to commit a crime therein. ³ General Statutes § 53a-103. At the close of the state's case, the defendant moved for judgment of acquittal on the ground that the state had failed to prove that the defendant had entered the building via the cellar door. The motion was denied. When the case went to the jury the trial judge instructed the jury that they must find that the defendant had unlawfully entered the building by entering the cellar. ⁴ The jury returned with a verdict of guilty. On appeal the defendant claims that the court erred in denying his motion because there was insufficient evidence from which the jury could conclude that he had entered the cellar. The state counters that the motion was properly denied because there was sufficient evidence that the defendant had entered the cellar and, in the alternative, that the defendant had unlawfully entered the hatchway which is part of the building. Because we agree that the defendant's presence in the hatchway constituted an unlawful entry into the building we need not decide whether there was sufficient evidence that the defendant had entered the cellar. It is beyond cavil that the hatchway is part of the building in question. Since the defendant concedes that he was in the hatchway, the evidence was clearly sufficient to support the verdict.

The defendant contends that, since by its instruction the trial court narrowed the issue to entry into the cellar to which the state did not except, proof of the defendant's presence in the hatchway is not sufficient for conviction. We do not agree.

The trial court cannot by its instruction change the nature of the crime charged in the information. See State v. Ruiz, 171 Conn. 264, 272, 368 A.2d 222 (1976). The substituted information charged the defendant with burglary in the third degree which could have been proved by the defendant's unlawful entry into the hatchway. Though the instruction incorrectly limited the proof necessary for a conviction, on review of a sufficiency of the evidence claim this court looks to see if the evidence supports the verdict on the crime charged. As discussed earlier, we hold that it does.

Nor does the instruction constitute reversible error. In requiring the state to prove more than that the defendant had entered the hatchway, the instruction benefited the defendant and the error was harmless. Rapuano v. Oder, 181 Conn. 515, 520, 436 A.2d 21 (1980).

II

The defendant contends that the trial court's instructions to the jury concerning the lack of an eyewitness to the defendant's alleged entry into the cellar ⁵ deprived him of due process of the law. He claims that the charge was a misstatement of the law and that even if it were correct, there was not enough circumstantial evidence to warrant the charge. In view of our discussion in part I, supra, we need not discuss these claims in order to find no error. Once again, by requiring the jury to find that the defendant had entered the cellar, rather than the hatchway, the court afforded the defendant a charge more favorable than that to which he was entitled.

III

The defendant next claims that the trial court erred in denying his first motion for a mistrial on the ground that the state had failed to disclose to the defendant exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The facts underlying this claim are as follows: Officer Rice testified on direct examination that as he approached the hatchway an individual later identified as the defendant exited the hatchway and started to move "towards the right or his left ... [A]s he moved to the left, he looked at me and I looked at him. Shortly after that he turned and fled to the front of the house." Later, when describing these events on cross-examination, Rice stated that as the defendant exited the hatchway the defendant "moved to his right or my left, toward the driveway side of the house ...." The cross-examination continued: "Q.... You say when you observed him face to face, you got a good look at him? A. That's correct."

During the state's rebuttal, Ronald Lefchuk, a neighbor of Batty, was called as a witness. He testified that on the day in question he was across the street from the Batty residence and he observed an individual run alongside the Batty residence "right around the front.... I saw him come from the back yard right around the front and ... [run] through [a line of trees] and up the hill [on the driveway side of the house.] "

After Lefchuk's testimony both sides presented their closing arguments. The next day, as the judge prepared to instruct the jury, the defendant moved for a mistrial on the ground that the state had suppressed exculpatory evidence by failing to disclose Lefchuk's testimony when the state first became aware of it. ⁶ The defendant contended that Lefchuk's testimony contradicted Rice's testimony on the defendant's path of flight and that this contradiction was exculpatory in that it cast doubt on the officer's opportunity to observe the defendant and later identify him. The court found that this evidence was not exculpatory and denied the motion.

To prevail on a Brady claim, a defendant must show that exculpatory evidence which was material to his guilt or punishment was suppressed by the prosecution. Brady v. Maryland, supra; State v. Falcone, 191 Conn. 12, 17, 463 A.2d 558 (1983); State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983). We find no error.

We are unpersuaded that Lefchuk's testimony was exculpatory. At most it only possibly contradicted Rice's testimony on the path of flight. A close scrutiny of the transcript reveals that Rice presented two versions of the defendant's flight after he emerged from the hatchway. The one he presented on direct examination, which was corroborated by Lefchuk, described the defendant as running from the back yard along the side of the house opposite the driveway while the one he presented on cross-examination, which was in conflict with Lefchuk's testimony, described the defendant as running from the back yard along the driveway side of the house. ⁷ It is very possible that Rice's testimony on cross-examination was in error and that had it been called to his attention, he would have rectified this mistake. ⁸

Moreover, though Lefchuk's testimony possibly contradicted Rice's on the path of flight, there was no conflict with respect to Rice's opportunity to observe the defendant. On direct examination, Rice...