State v. Huff, 3579

• Decision Date: 05 May 1987
• Docket Number: No. 3579,3579
• Citation: 10 Conn.App. 330,523 A.2d 906
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ronald HUFF.

Page 906

523 A.2d 906

10 Conn.App. 330

STATE of Connecticut v. Ronald HUFF.

No. 3579.

Appellate Court of Connecticut.

Argued Dec. 2, 1986.

Decided March 31, 1987.

Certification Denied May 5, 1987.

Timothy H. Everett, Hartford, with whom, on brief, was Anthony Ghecas, Legal Intern, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom, on brief, were John M. Bailey, State's Atty., and Dennis O'Connor, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes §§ 53a-133 and 531-134(a)(3), ¹ and of assault in the second degree in violation of General Statutes § 53a-60(a)(2). ² He raises three claims of error: (1) that the trial court's instructions to the jury were constitutionally deficient because, in defining the statutory term "dangerous instrument," the court omitted the statutory definition of "serious physical injury"; (2) that the court erred in sustaining two objections by the state to the defendant's final argument; and (3) that the court abused its discretion in denying the defendant's motions to strike and for a one week continuance, which were made in response to the state's filing of a substituted information immediately prior to the commencement of the jury voir dire. We find no error.

On August 30, 1983, at approximately 11:30 p.m. the victim, Michael Knowles, was assaulted and robbed on a Hartford street by three men. Knowles testified that one of the men hit him with a miniature wooden baseball bat approximately sixteen inches long and two and one-half inches in diameter, more than three times on the left side of his head, causing him to black out, to "see stars," and to feel that he was hurt. Knowles went to a hospital emergency room for treatment. The police officer who saw him there testified that his face was swollen and that his head and chest were bruised. On two subsequent occasions Knowles was shown police photo arrays containing photographs of the defendant, but did not identify the defendant.

Approximately three months later, on December 7, 1983, Knowles was in a restaurant in Hartford, when he recognized the defendant, who was sitting at a table, as the assailant who had hit him with the baseball bat. In order to observe the defendant closely, Knowles approached him on a pretense and asked him a question. Knowles then left the restaurant and called the police, who arrived a few minutes later and arrested the defendant inside the restaurant.

I

The defendant first claims that the trial court erred by omitting the statutory definition of "serious physical injury"; see footnote 1, supra; from its jury charge on the offenses of robbery in the first degree and assault in the second degree. Both offenses require the state to prove, as an essential element, that the defendant used a "dangerous instrument." See footnotes 1 and 2, supra. "Dangerous instrument" is statutorily defined as "any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury...." General Statutes § 53a-3(7); see footnote 1, supra. "Serious physical injury" is further defined as "physical injury [defined in General Statutes § 53a-3(3); see footnote 1, supra;] which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss of impairment of the function of any bodily organ." General Statutes § 53a-3(4); see footnote 1, supra.

In instructing the jury on the offense of robbery in the first degree, the court read the applicable portion of the statutory definition of "dangerous instrument." It is the failure, however, of the trial court to instruct the jury on the statutory definition of "serious physical injury" which is claimed as error on appeal. ³ The defendant claims that this failure amounted to an omission of a jury charge on an essential element of the crime charged.

Because the defendant neither filed a request to charge nor excepted to the charge as given, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and under the plain error doctrine. We have recently clarified our formulation for an Evans review.

"We 'must ask a series of questions when an Evans claim is made and answer each in the affirmative before continuing to the succeeding question.' State v. Newton, 8 Conn.App. 528, 531, 513 A.2d 1261 (1986). 'The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review.' Id.

"First, does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? This question looks solely to whether the label which the defendant places on the claim is constitutional in nature.

"Second, is the defendant's constitutional claim adequately supported by the record? This question requires that we review the record in a limited way and determine, on the basis of that limited review, whether the defendant's claim is truly of constitutional proportions or is simply characterized as such by the defendant. In those instances in which the Supreme Court or this court has already clearly indicated that the particular claim is or is not of constitutional proportions and therefore reviewable or not reviewable, a summary 'yes' or 'no' answer may be sufficient.

"Third, 'was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant'? State v. Newton, supra. This question requires that we fully review the defendant's claim to determine whether a fundamental constitutional right of his was violated.

"Fourth, 'did the deprivation deny the defendant a fair trial, thereby requiring' that his conviction be set aside. Id. This question requires that we determine, under appropriate standards of harmless error or other similar doctrines, whether the error requires reversal." (Emphasis in original.) State v. Thurman, 10 Conn.App. 302, 306-307, 523 A.2d 891 (1987).

The defendant, by claiming that the court's failure to define "serious physical injury" amounted to an omission of an instruction on an essential element of the crime charged, has satisfied the first requirement for Evans review. See State v. Newton, supra, 8 Conn.App. at 539, 513 A.2d 1261; State v. Grant, 6 Conn.App. 24, 28, 502 A.2d 945 (1986). Our limited review of the record discloses, however, that the defendant's claim is not truly of constitutional proportions, but is simply characterized as such by him. Thus, he has failed to satisfy the second requirement for Evans review because his constitutional claim is not adequately supported by the record. State v. Thurman, supra.

The court read the jury the statutory definition of the essential element of the crime charged, namely use of a "dangerous instrument." "Serious physical injury," is not itself, however, an essential element of the crime charged. It is but a definitional component of an essential element. A court's failure to read the statutory definition of a phrase which itself appears as part of the definition of an essential element, is not an error of constitutional proportion. The court's obligation to charge on the essential elements of the crime charged " 'does not transform every deviation from the particular statutory definition chosen by the legislature into a constitutional error.' " State v. Utz, 201 Conn. 190, 202, 513 A.2d 1191 (1986). The defendant has attached a constitutional label to what is analytically, at its core, a nonconstitutional claim. Id. We therefore decline to review this claim further.

Indeed, three related circumstances of this case make the defendant's claim particularly inappropriate for the exercise of our "principled appellate discretion." State v. Cosby, 6 Conn.App. 164, 172, 504 A.2d 1071 (1986). First, the defendant made it clear to the trial court that he did not dispute the fact that the miniature baseball bat, as it was used in the incident, was a dangerous instrument. Defense counsel, in fact, argued as a subsidiary support for certain legal arguments at trial that there was no dispute over this issue. ⁴ It befuddles both sound judicial policy and common sense to permit the defendant on appeal to raise as error a position which he pressed on the trial court for his own benefit. See State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987) (defendant cannot pursue one issue at trial and claim on appeal that that course he rejected at trial be open to him).

Second, the defendant displayed decided indifference to any definitional nuances in the court's charge. When the trial court did not, in its initial instructions to the jury on the charge of assault in the second degree, define the statutory term "physical injury"; see General Statutes § 53a-3(3); footnote 1, supra; the state excepted to this omission. The court asked defense counsel if he wished to be heard in response to the state's exception, and the following colloquy took place: "Defense Counsel: 'Not on that specific point....' The Court: 'Specifically I did not define it. If you wish, I will. Counsel, do you want me to give the statutory definition of physical injury?' Defense Counsel: 'I have no position on that, Your Honor.' " Thereafter, the court recalled the jury and instructed it on the statutory definition of "physical injury."

This revealing exchange indicates that, had the trial court been alerted to its omission of the statutory definition of "serious physical injury," it very likely would have promptly given a supplemental charge supplying the jury with the omitted definition. "An exception at this point, especially under the circumstances of this case, would have served the important function of alerting the trial court to...