State v. Kelly

• Decision Date: 27 November 1990
• Docket Number: No. 8285,8285
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Leroy KELLY.

Page 520

580 A.2d 520

23 Conn.App. 160

STATE of Connecticut v. Leroy KELLY.

No. 8285.

Appellate Court of Connecticut.

Argued June 4, 1990.

Decided Sept. 4, 1990.

Certification Denied Nov. 27, 1990.

Kent Drager, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard F. Jacobson and Henry J. Lyons, Asst. State's Attys., for appellee (state).

Before DUPONT, C.J., and FOTI and LAVERY, JJ. DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of attempted escape in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-171(a) ¹ and of two counts of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1). ² He and a codefendant, Clayman Whitaker, were tried together.

The defendant challenges (1) the trial court's supplemental instructions to the jury on the defense of renunciation pertaining to the charge of attempted escape from custody, (2) the admission of evidence of two pending charges of robbery in the first degree, (3) the examples of the meaning of proof beyond a reasonable doubt used by the court in its preliminary instructions, (4) the prosecutor's allegedly improper remarks made in closing argument, (5) the trial court's denial of his motion for change of venue, and (6) the sufficiency of the evidence for his conviction of two counts of assault on a peace officer. We affirm the judgment of the trial court.

The facts in this case revolve around an incident that occurred in the holding area of a Fairfield county courthouse. James Dunlop, a special deputy sheriff, was assigned to that area to assist in the movement of prisoners between it and the courtrooms. The holding area consists of three cells, an office area, several security doors, a bay for the sheriffs' vans, and an elevator to the courtrooms. The defendant, along with other detainees, was being held in the center cell of the lockup area.

A detainee asked to go to the bathroom, and Dunlop opened the cell door to let him out. As Dunlop was trying to close the door, the defendant and the codefendant pushed up against the door, forcing the door to open and moving Dunlop back. The two defendants then exited the cell and began to punch Dunlop. Eventually, the defendant took security door keys from another sheriff who was in the area.

At this point, the defendant, the codefendant and another detainee locked the door behind them, leaving some sheriffs locked in the cell. They then tried to open various security doors, emptied drawers of an office desk, smashed a wire glass window of a door leading into the bay area, removed ceiling tiles, and attempted to pry a hinge from a door. While the defendant and the other detainees were trying to open the security doors, the elevator from the courtroom opened. Sheriff John Scanlon, who was wearing a blazer and a badge, was in the elevator and in the process of escorting a prisoner from the courtroom to the holding area. Scanlon testified that he saw an unescorted detainee walk past and ordered the detainee up against the wall at which point Scanlon was attacked by the defendant. While placing Scanlon in a judo strangling hold, the defendant told another detainee to get Scanlon's keys. Scanlon managed to break the hold and retreat to the elevator where he or one of the other sheriffs pulled the alarm.

Once the elevator doors closed, the defendant and the two other detainees continued to try to open the security doors. A van pulled into the bay area, and a sheriff yelled that an escape was in progress. The three detainees then returned to the cell, but again left it, locked the door, and tried to open a security door. A sheriff observed, through a monitor, a police car pulling into the garage area. The defendant and the other detainees then went back into the cell, threw down the keys, and sat in a corner.

I

The defendant first contends that he was deprived of his fundamental constitutional right to present a renunciation defense. The defendant submitted a written request to charge on the defense of renunciation. The trial court charged the jury on the defense, and the defendant objected to it because it was based on law predating the penal code. In response to the defendant's objections, the court recharged the jury on the defense of renunciation. The defendant did not take an exception to the supplemental charge. The state argues that we should not review the issue because the defendant took no exception.

A matter encompassed by a written request to charge is reviewable even if the defendant failed to take exception. State v. Reddick, 15 Conn.App. 342, 351, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988); State v. Marshall, 3 Conn.App. 126, 128, 485 A.2d 930 (1985), appeal dismissed, 199 Conn. 244, 506 A.2d 1035 (1986); see also Practice Book § 852. ³

In reviewing a challenged portion of a jury instruction, it is well established that contested individual sections of the instruction are not to be judged in artificial isolation from the overall charge, but in the context of the charge as a whole. State v. Quintana, 209 Conn. 34, 47, 547 A.2d 534 (1988); State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977). "The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict." State v. Corchado, 188 Conn. 653, 661, 453 A.2d 427 (1982).

Before giving its supplemental charge, the court specifically asked the jurors to ignore its previous instruction on renunciation. It then charged that "[t]he defendants have asserted a defense to this charge of attempted escape from custody called abandonment and renunciation. The assertion of this defense reflects a claim that the facts proved are sufficient to show a voluntary and free abandonment of their purpose to escape. When such a defense is asserted the state has the burden of disproving that defense beyond a reasonable doubt. That is the case here. Our statutes provide that it is a defense to an attempt to commit a crime that the actor abandoned his effort to commit the crime or otherwise prevented its commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. However, such renunciation is not voluntary if it is motivated in [whole] or in part by circumstances not present or apparent at the inception of the actor's course of conduct which circumstances increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. You must determine if there was an abandonment or renunciation in the first place and if so, whether it was voluntary." These instructions substantially echo General Statutes §§ 53a-49 and 53a-50.

The defendant argues that the court's supplemental instruction suggests a basis, not articulated in §§ 53a-49(c) and 53a-50, for rejecting the defense of renunciation, namely, that there is a point in time beyond which it is too late to renounce an attempted crime.

There are two relevant statutory provisions defining the elements of renunciation. Section 53a-49(c) provides in part: "When the actor's conduct would otherwise constitute an attempt ... it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose." Section 53a-50 elaborates on the voluntariness requirement as follows: "For purposes of this part, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct or to transfer the criminal effort to another but similar objective or victim."

The defendant objects only to one clause in one sentence of the entire five page supplemental charge. He cites the following language: "While there is a point beyond which the jury may find it is too late to renounce, Ithat is clear, the jury can make that decision, still an attempt under our statute as it is presently constituted does appear to be capable of renunciation and abandonment after the defendant actor has taken a substantial step toward the completion of the act with the necessary intent." (Emphasis added.) Although the words, "too late to renounce," as used in the first half of the sentence, ⁴ are capable of two interpretations, the court completed the sentence with a correct proposition of law. Even if the phrase were incorrect, one single misstatement in the context of an otherwise appropriate charge can be overlooked. State v. Price, 205 Conn. 616, 620-21, 534 A.2d 1196 (1987). The alleged misstatement of the law was subsequently corrected in the remainder of the supplemental charge. The court stated that "an attempt under our statute as it is presently constituted does appear to be capable of renunciation and abandonment after the defendant actor has taken a substantial step toward the completion of the act with the necessary intent."

When taken as a whole, the supplemental charge gave the jurors a clear understanding of the correct legal elements of the defense of renunciation and afforded them proper guidance for their determination of whether those elements were present. It is not reasonably possible that the jury was misled. State v. Snook, 210 Conn. 244, 275-76, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989); State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988); State v. Quintana, supra, 209 Conn. at 50,...