State v. Green

Citation372 A.2d 133,172 Conn. 22
CourtSupreme Court of Connecticut
Decision Date23 November 1976
PartiesSTATE of Connecticut v. Jessie Lee GREEN, Jr.

Martha Stone, Hartford, for appellant (defendant).

Richard F. Banbury, Chief Asst. State's Atty., with who, on the brief, was George D. Stoughton, State's Atty., for appellee (state).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LONGO, Associate Justice.

The defendant, Jessie Lee Green, Jr., was found guilty by a jury of robbery in the first degree, in violation of General Statutes § 53a-134(a)(2), and kidnapping in the second degree, in violation of General Statutes §§ 53a-94 and 53a-91(2)(b). The defendant appeals that conviction to this court alleging error in the trial court's charge to the jury and in the admission of certain evidence.

The essential facts leading to the defendant's arrest are undisputed and briefly are as follows: The victim was entering her car in a parking lot when she was approached by the defendant who, brandishing a knife, forced his way into the victim's car, demanded and took her money, and forced her to accompany him on a reckless, careening ride around Hartford. The victim's speeding car was observed by officers in a police car. The police gave chase and the car containing the defendant and his victim flipped over, whereupon the defendant emerged from the vehicle holding a knife to his victim in an attempt to fend off the police. Finally, Officer Richard W. Poucher of the Hartford police department fired a shot, causing the defendant to fall to the ground and release his hostage. The defendant was then apprehended and taken to police headquarters where he made a statement confessing his involvement in the above incident.

At trial, the defendant relied principally upon a defense of insanity. The defendant's first allegation of error arises from the trial court's refusal to instruct the jury on the effect of a verdict of not guilty by reason of insanity. The defendant requested the following instruction: 'If the defendant is found not guilty by reason of insanity, it does not mean that he will necessarily go free. It becomes the duty of the Court to conduct a hearing within ninety days to determine whether he should receive further treatment and remain in custody.' We agree with the trial court that the requested instruction should not have been given to the jury. The requested instruction seeks to apply General Statutes § 53a-47 1 to the present case. The instruction, however, overlooks the second part of the statute. In subsection (a), the statute states that the court shall order any person acquitted of charges on the grounds on insanity confined to a state hospital for not more than ninety days for mental examination after which a hearing shall be held to determine whether the subject's release would constitute a danger to himself or others. In the event the court so determines, it may then, under subsection (b), order the subject confined for a period up to the maximum term fixed by statute for the offense committed. Subsection (a), however, also provides that the court need not order confinement. It states: '(I)f the court can determine, on the basis of the evidence already before it, that such person is not mentally ill to the extent that his release would constitute a danger to himself or others, the court may order his immediate release, either unconditionally or conditionally pursuant to subdivision (2) of subsection (e).'

Though it is extremely unlikely that any judge would have allowed this defendant to go free, the fact remains that the requested charge was not an accurate statement of the law and was, therefore, properly denied. State v. Brown, 163 Conn. 52, 60, 301 A.2d 547. Furthermore, we are unpersuaded that we should reconsider our consistent rulings that a defendant does not have a right to have the jury charged on the effect of a verdict of not guilty by reason of insanity. As we stated in State v. Uriano, 165 Conn. 104, 105, 328 A.2d 679, 680: 'A claim that the court should have informed the jury that the defendant was liable to civil commitment if he were acquitted on grounds of insanity was properly abandoned in the light of the decisions of this court in State v. Pastet, 152 Conn. 81, 85, 203 A.2d 287, and State v. Wade, 96 Conn. 238, 242, 113 A. 458. That assignment of error had no merit.

The defendant next alleges error in the trial court's admission of testimony given by Robert C. Doherty, the state-appointed psychiatrist assigned to evaluate the defendant's mental competence to stand trial, which testimony was offered to rebut the defendant's defense of insanity. The defendant argues that Dr. Doherty's testimony on an issue other than that which he was appointed to investigate, without any further ther inquiry into the defendant's case, was in violation of the defendant's rights under General Statutes § 52-146f and his right to due process under the fourteenth amendment. As the defendant concedes, however, trial counsel failed to object to the admission of Dr. Doherty's testimony and, therefore, abandoned any right to raise the above claim before this court. See State v. Evans, 165 Conn. 61, 327 A.2d 576, 2 and cases cited.

The defendant also contends that the state's cross-examination of Bernard Pellet, a psychologist and one of the defendant's expert witnesses, was improper. The defendant claims that the state exceeded the proper scope of cross-examination by questioning Dr. Pellet on the contents of a report he had filed on the defendant, dated November 14, 1973, which had not been introduced into evidence by the defendant. The only objection to the report to which an exception was taken was to the question by the state's attorney: 'May I have your copy of the report?' Defense counsel objected 'on a violation of the defendant's rights under the fifth amendment.' We do not find the cross-examination objectionable. We have often stated that the trial court has wide discretion in setting the scope of cross-examination. State v. Palozie, 165 Conn. 288, 297, 334 A.2d 468. Although we have stated that '(a) cross- examination as to the contents of a writing should ordinarily not be permitted unless the writing is in evidence'; Shulman v. Shulman, 150 Conn. 651, 662, 193 A.2d 525, 532; we have recognized an exception to that rule 'where a witness on his direct examination refers to a document which has not been admitted in evidence. Fine v. Moomjian, 114 Conn. 226, 232, 158 A. 241.' Shulman v. Shulman, supra, 150 Conn. 662 n.2, 193 A.2d 532 n.2. We find this exception applicable to the present case. It appears in the transcript of the trial that defense counsel on direct examination asked Dr. Pellet whether, after interviewing the defendant on November 11, 1973, he had made a diagnosis of him. Dr. Pellet responded: 'I was asked by the counsellor to make-to submit a report and to include a diagnostic statement, and I did.' The psychologist was then requested to explain the diagnosis contained in the report, and he did. It was proper for the prosecution then to cross-examine Dl. Pellet on the contents of the report. The defendant next alleges that references by the defense...

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