State v. Johnson

Decision Date04 August 1981
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Lindsay B. JOHNSON.

Linda K. Lager, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty. and John T. Redway, Asst. State's Atty., for appellee (State).

Before BOGDANSKI, C. J., and SPEZIALE, PETERS, HEALEY and PARSKEY, JJ.

SPEZIALE, Associate Justice.

After a jury trial the defendant was convicted on a four-count information of the crimes of attempted murder, in violation of General Statutes §§ 53a-54a, 53a-49, 53a-8; kidnapping in the second degree, in violation of General Statutes §§ 53a-94, 53a-8; robbery in the first degree, in violation of Public Acts 1975, No. 75-411 §§ 1(a)(2), 1(a)(3) (now General Statutes § 53a-134(a)(2) and (3)); and sexual assault in the first degree, in violation of Public Acts 1975, No. 75-619 § 3(a) (now General Statutes § 53a-70(a)) and General Statutes § 53a-8. The defendant appeals from the judgment rendered upon the verdict, claiming the trial court erred: (1) in its instructions to the jury on the element of intent, (2) in failing to instruct the jury that the abduction of the victim could be found to have been merely incidental to the commission of another crime, and (3) in denying the defendant his right to self-representation. None of these claims was raised at trial.

The jury could reasonably have found the following facts: On December 20, 1975, at approximately 10:30 p. m., the female victim dropped her boyfriend off at the Norwalk railroad station and started to return to her home in West Redding. Unfamiliar with Norwalk, and in cold and snowy weather, the victim lost her way. While still in Norwalk, she stopped her car and asked the occupants of another automobile for directions. The defendant, one of the four men in this automobile, offered to ride in her car to show her the way to route 7. When her car arrived at route 7, the defendant pulled the victim to the passenger side of the car and another man from the second automobile entered the victim's car and drove it away. The victim was told that the men needed a car. She was threatened, at various times, with bodily harm, was shown a knife and was told that there was a gun. Sometime later, while still in Norwalk, the second car was abandoned and its other two occupants entered the victim's car. At another stop, a fifth man was picked up. Eventually, the car was driven on the Connecticut Turnpike toward New Haven. Sometime in the early morning hours of December 21, 1975, the vehicle was stopped near an apartment building in the New Haven area. The victim was forced into the building where she was sexually assaulted by all five men. When the victim was returned to her car her hands were bound with wire. The car was driven to a bridge on the New Haven-West Haven line where the defendant forced the victim to run across the bridge. At about the midway point, she and the defendant struggled and he threw her over the railing. Initially she landed on a pipe outside of the railing, but jumped into the river and went under the water when the defendant pursued her. She managed to elude him by hiding under the bridge. Sometime later she made her way to a nearby residence from which the police were called. The defendant and others were arrested in Norwalk between 5 and 6 a. m. the same morning in or near the victim's car.

I INTENT INSTRUCTIONS

The defendant, relying on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), claims that the trial court's instructions to the jury on the element of intent, which included the statement that "every person is conclusively presumed to intend the natural and necessary consequences of his act," violated his constitutional rights. On a number of recent occasions this court has considered jury instructions alleged to violate the rule of Sandstrom. State v. Stankowski, --- Conn. --- pp. ---, --- - ---, 439 A.2d 918 (42 Conn.L.J., No. 46, pp. 5, 14-15) (1981); State v. Brokaw, --- Conn. --- pp ---, ---, 438 a.2D 815 (42 conn.l.j., NO. 31, pp. 9, 11) (1981); State v. Truppi, --- Conn. ---, --- - ---, 438 A.2d 712 (42 Conn.L.J., No. 25, pp. 1, 2-6) (1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981); State v. Nemeth, --- Conn. ---, ---, 438 A.2d 120 (42 Conn.L.J., No. 23, pp. 3, 6) (1980); State v. Theriault, --- Conn. ---, --- - ---, 438 A.2d 432 (42 Conn.L.J., No. 22, pp. 8, 11-13) (1980); State v. Vasquez, --- Conn. ---, --- - ---, 438 A.2d 424 (42 Conn.L.J., No. 8, pp. 36, 37-40) (1980); State v. Maselli, --- Conn. ---, --- - ---, 437 A.2d 836 (42 Conn.L.J., No. 7, pp. 15, 18-19) (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); State v. Perez, 181 Conn. 299, 312-13, 435 A.2d 334 (1980); State v. Ruth, 181 Conn. 187, 200, 435 A.2d 3 (1980); State v. Arroyo, 180 Conn. 171, 173-82, 429 A.2d 457 (1980); State v. Harrison, 178 Conn. 689, 693-99, 425 A.2d 111 (1979). This case, however, involves jury instruction language not previously considered by this court.

In the ordinary case we would refuse to review error claimed in jury instructions which, as here, was not brought to the attention of the trial court. Practice Book §§ 315, 3063. We have, however, previously held that because the type of error claimed falls within the "exceptional circumstances" rule of State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), we will review it despite the lack of objection and exception below. State v. Vasquez, supra, --- Conn. at ---, 438 A.2d 424; State v. Maselli, supra, --- Conn. at ---, 437 A.2d 836; State v. Perez, supra, 181 Conn. at 312, 435 A.2d 334; State v. Arroyo, supra, 180 Conn. 173-74, 429 A.2d 457.

In Sandstrom v. Montana, supra, the United States Supreme Court held that a jury instruction that "(t)he law presumes that a person intends the ordinary consequences of his voluntary acts" violated the defendant's due process rights because a reasonable jury could have interpreted the instruction as a burden-shifting presumption like that invalidated in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), or as a conclusive presumption like those invalidated in United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) and Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Sandstrom, supra, 442 U.S. 517-24, 99 S.Ct. 2455-59. The rule of Sandstrom, however, must not be over simplified. State v. Arroyo, supra, 180 Conn. 175, 429 A.2d 457. Sandstrom does not invalidate, for example, the use of an "entirely permissive inference or presumption, which allows-but does not require-the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant." Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979); State v. Arroyo, supra. The use of the word "presume" by itself does not render an instruction invalid under Sandstrom. State v. Arroyo, supra. Rather, it is the "lack of qualifying instructions as to the legal effect of the presumption," making it possible for a reasonable jury to interpret the presumption as conclusive or burden-shifting, which renders the instruction unconstitutional. Sandstrom, supra, 517. In a number of cases this court has found no error in instructions containing language similar to that invalidated in Sandstrom because the challenged instructions contained other language not present in the Sandstrom instructions which was sufficiently precise or elaborate so that the jury would not have applied the instructions in an unconstitutional manner. State v. Stankowski, supra, --- Conn. at ---, --- A.2d ----; State v. Truppi, supra, --- Conn. at ---, 438 A.2d 712; State v. Nemeth, supra, --- Conn. at ---, 438 A.2d 120; State v. Vasquez, supra, --- Conn. at --- - ---, 438 A.2d 424; State v. Maselli, supra, --- Conn. at --- - ---, 437 A.2d 836; State v. Perez, supra, 181 Conn. at 313, 435 A.2d 334; State v. Arroyo, supra, 180 Conn. 179-80, 429 A.2d 457.

In examining a jury instruction to determine how a reasonable jury could have interpreted it; Sandstrom, supra, 442 U.S 514, 99 S.Ct. 2454; we look at the charge as a whole, and will not sever one portion and analyze it in isolation from the rest. State v. Truppi, supra, --- Conn. at ---, 438 A.2d 712; State v. Vasquez, supra, --- Conn. at ---, 438 A.2d 424; State v. Harrison, supra, 178 Conn. 693, 425 A.2d 111. Although general instructions on the state's burden of proof and the defendant's presumed innocence do not by themselves cure an otherwise invalid instruction; Sandstrom, supra, 442 U.S. 518-19 n.7, 99 S.Ct. 2456 n.7; State v. Harrison, supra, 178 Conn. 697, 425 A.2d 111; general instructions may be considered together with other instructions in determining whether the jury could have interpreted the charge in an impermissible manner. State v. Vasquez, supra, --- Conn. at ---, 438 A.2d 424. In evaluating a jury charge to determine whether a Sandstrom error has been corrected, the proper consideration is whether the charge, taken as a whole, "clearly delineates the state's burden of proof on every element, including intent" so that "the potential for confusing the jury is sufficiently reduced." State v. Harrison, supra, 178 Conn. 697, 425 A.2d 111.

Prior to instructing the jury regarding the elements of the four crimes with which the defendant was charged and the specific criminal intent required for attempted murder, kidnapping in the second degree, and robbery in the first degree, the trial court provided the jury with a number of general instructions, including a general instruction on intent. It described these instructions as "general comments...

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