State v. Hopes, 9202

• Decision Date: 14 January 1992
• Docket Number: No. 9202,9202
• Citation: 26 Conn.App. 367,602 A.2d 23
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert HOPES.

Page 23

602 A.2d 23

26 Conn.App. 367

STATE of Connecticut v. Robert HOPES.

No. 9202.

Appellate Court of Connecticut.

Argued Oct. 1, 1991.

Decided Jan. 14, 1992.

Alexander H. Schwartz, Bridgeport, for appellant (defendant).

Paul J. Ferencek, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Mary Reidy, Asst. State's Atty., for appellee (State).

Before DALY, FOTI and LAVERY, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 ¹ and criminal possession of a firearm in violation of General Statutes § 53a-217. ² He was acquitted of attempt to commit first degree assault in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(1). The defendant claims (1) that the trial court improperly refused to charge the jury that duress is a defense to the charges of carrying a pistol without a permit and criminal possession of a firearm, (2) that the court incorrectly defined the meaning of carrying as used in § 29-35 when charging the jury and that there was insufficient evidence to support a conviction for carrying a pistol without a permit, and (3) that there was insufficient evidence concerning the operability of the pistol he possessed to support a conviction for criminal possession of a firearm. We affirm the trial court's judgment.

The jury could reasonably have found the following facts. During the late evening hours of April 29, 1989, Eric Peck, Michael Cassar, Steve Wall, Hank Bona and Jeff Pasonti were together at Demery's nightclub in downtown New Haven. When Demery's closed at 2 a.m. on April 30, Peck and his friends went to Broadway Pizza. Wall waited there for his order while the others left the restaurant to eat in Bona's car. Approximately ten minutes later, Peck returned to the crowded restaurant to look for Wall, who had already left. As Peck moved through the restaurant, he accidentally stepped on the defendant's foot. According to Peck's testimony, he apologized but the defendant responded by kicking him in the leg. They began to exchange words as Peck was going to the men's room. Upon Peck's return, the defendant stood up and challenged him to a fight. Peck was about to fight when he noticed that the defendant was accompanied by a group of people. He left the restaurant to get his friends and warned the defendant that he would return to fight.

After a few minutes, Peck returned to the restaurant with Cassar, Pasonti and Bona. As Peck and the defendant were about to fight, one of the defendant's companions told Peck, "Don't worry about him, he's acting like a jerk because he's wasted." Upon hearing this, Peck changed his mind and decided not to fight the defendant. Peck then motioned to Cassar to leave the restaurant. Peck then saw the defendant point a pistol at Cassar's head. Neither Peck nor Cassar saw where the defendant got the pistol. Thomas Jette, the manager of Broadway Pizza, testified that one of the defendant's companions gave him the pistol as Peck and Cassar were approaching. Jette described the weapon as a black handgun. While pointing the gun at Cassar, the defendant said, "What are you going to do now, man?" Peck and Cassar fled the restaurant with their two other friends. The defendant was then seen leaving the restaurant with some of his friends.

Upon leaving the restaurant, Peck and his friends met with Wall, who was in an automobile about thirty yards from the restaurant. Less than one minute after leaving the restaurant, Peck and Cassar heard gunshots and felt something pass by their heads. Cassar felt a thrust of sand or some gravel strike his legs. They later reported this incident to the New Haven police who were unable to locate any shell casings or other evidence at the scene. Jette identified the defendant as a regular customer of Broadway Pizza. Peck and his friends all made positive photographic identifications of the defendant.

I

The defendant's first claim concerns the trial court's refusal to charge the jury on the defense of duress pursuant to General Statutes § 53a-14. ³ The following facts are pertinent to this claim.

On April 12, 1990, after the defense had rested its case, the trial court instructed both sides that closing arguments and requests to charge should be ready for the next day at 2 p.m. The court then held an in camera charging conference at which the parties presented written requests to charge the jury. On April 13, just before closing arguments were to commence, defense counsel orally requested a charge on duress. The state objected and the trial court denied the oral motion. The court noted that the defendant was given sufficient time to submit proper written requests to charge. The trial court also concluded that giving a duress instruction would be unfair to the state because the state would be unable to respond to this new theory in its closing argument. The defendant did not take an exception to this ruling. There also was no objection by the defendant to the absence of the duress instruction following the court's charge to the jury. The defendant failed to preserve the claim concerning the duress instruction by not offering a written request to charge and not taking exception to the charge given by the trial court. Practice Book § 852. ⁴

The defendant seeks review of this unpreserved claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant argues that the trial court's failure to give the duress instruction violated his constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). Although there is a constitutional right to present a defense, the defendant has failed to demonstrate that the absence of a duress instruction to these charges constitutes a constitutional violation that "clearly exists and clearly deprived the defendant of a fair trial...." State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823.

The defense of duress would not justify the carrying of a pistol without a permit. See State v. Bailey, 209 Conn. 322, 348, 551 A.2d 1206 (1988); State v Holloway, 11 Conn.App. 665, 671 and n. 6, 528 A.2d 1176 (1987). Claims of justification such as self-defense and duress are only relevant when the actor's use of reasonable physical force is at issue. State v. Bailey, supra. The degree of force used by a person is not relevant in a prosecution for violating § 29-35. Id. The court in Bailey noted that "[e]ven if the defendant's conduct in carrying the pistol was factually inseparable from a threat by [the defendant] to use force, the only legal question arising from the conduct was whether she was carrying the pistol without a permit in violation of § 29-35." Id., 209 Conn. at 348-49, 551 A.2d 1206. Any duress this defendant may have experienced does not justify the carrying of a pistol without a permit.

As to the second count on which he was convicted concerning the criminal possession of a firearm, it is unclear whether a duress instruction was sought for that particular count. There was no specific explanation other than a general oral request that a duress instruction should be given to the jury. There also was no explanation by defense counsel for his failure to comply with Practice Book §§ 852 and 854. In the past, our Supreme Court has refused to review a defendant's claim of a court's failure to instruct on a defense where the defendant failed to comply with Practice Book §§ 852 and 854. State v. Jacobs, 194 Conn. 119, 128-29, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S.Ct. 963, 83 L.Ed.2d 968 (1985). In State v. Jacobs, supra, the defendant sought an instruction on the defense of intoxication but failed to file a written request to charge or to take an exception to the lack of instruction. This is exactly what occurred in this case. "When the principal participant in the trial whose function is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right ... is seriously undercut." (Citation omitted.) State v. Huff, 10 Conn.App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Here, the defendant did not pursue the duress claim through an exception or a claimed factual basis or an explanation as to its application in this case. We conclude that the lack of a duress instruction for the charge of criminal possession of a firearm did not deprive the defendant of a fair trial. Thus, the defendant has failed to satisfy the Evans- Golding standard for review.

The lack of a duress instruction also does not constitute plain error that would warrant review pursuant to Practice Book § 4185. A party is entitled to plain error review of an unpreserved claim in "truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). An important factor to consider when determining if plain error review is necessary is whether the claimed error resulted in an unreliable verdict or a miscarriage of justice. State v. Hinckley, supra. The court's decision not to give a duress instruction did not affect the fundamental fairness of the trial or cause the defendant to suffer any manifest injustice.

II

The defendant's second claim concerning the definition of "carry" within § 29-35 presents an issue of first impression. See State v. Bailey, supra, 209 Conn. at 350-51, 551 A.2d 1206 (whether mere holding constitutes carrying within meaning of § 29-35 not in issue because jury had evidence of asportation before it...