State v. Khadijah, No. 25518.

• Decision Date: 14 November 2006
• Docket Number: No. 25518.
• Citation: 909 A.2d 65,98 Conn.App. 409
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ayanna KHADIJAH.

909 A.2d 65

98 Conn.App. 409

STATE of Connecticut v. Ayanna KHADIJAH.

No. 25518.

Appellate Court of Connecticut.

Argued September 20, 2006.

Decided November 14, 2006.

Mary Anne Royle, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Suzanne M. Vieux, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and DUPONT, Js.

DUPONT, J.

The defendant, Ayanna Khadijah, appeals from the judgment of conviction, rendered after the jury found her guilty of the crime of failure to appear in the first degree in violation of General Statutes § 53a-172.¹ She principally argues that there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that one of the elements of the statute, "wilfully fails to appear," was proven. We agree and reverse the judgment of the trial court.

The defendant was charged originally with three counts: possession of narcotics in violation of General Statutes § 21a-279 (a); possession of a controlled substance (less than four ounces of marijuana) in violation of General Statutes § 21a-279 (c); and risk of injury to a child in violation of General Statutes § 53-21(a)(1). The defendant's appearance bond was set at $25,000 on February 20, 2002. Jury selection for the defendant's trial commenced on August 12, 2003. At the end of the day, the trial court, Reynolds, J., ordered the parties to appear the following morning at 10:45 a.m. to resume jury selection. The next day, the defendant had not arrived for jury selection by 11:25 a.m., and the prosecutor, Suzanne M. Vieux, requested that the defendant be rearrested. The defendant's attorney, Samantha A. Kretzmer, telephoned the defendant and returned to the courtroom to report that she had reached the defendant and that the defendant was on her way. The transcript records the following discussion:

"[Defense Counsel]: There was something that happened, and I didn't have time to go through the details because I said, `Just get here now.' I will be more than happy to find out what happened and report back to Your Honor. If you could please just give her —

"The Court: I don't think so, counsel. We've got a clerk, a court reporter, marshals, myself, a prosecutor and sixteen jurors sitting there waiting for her.

"[Defense Counsel]: I mean, Your Honor —

"The Court: I don't think I'm inclined to do that."

After further discussion, the court ordered that the defendant's bond be forfeited at 11:28 a.m. The court then ordered the rearrest of the defendant, set her new bond at $50,000 and subsequently excused the jury panel. Later that day, defense counsel stated to the court, "I just wanted to say that as [the prosecutor] and I exited the courtroom, we saw [the defendant] coming in through the metal detector." Following this, the defense counsel requested that the court reconsider the rearrest order. The court responded, "She did wilfully fail to appear. She wilfully failed to appear, and I don't want to hear any more. I'm not recalling the matter. Do you have any other matters?" The court then moved on to other matters.

Thereafter, on December 17, 2003, the state, in a substitute information, charged the defendant with the original three crimes and added the charge of failure to appear in the first degree in violation of § 53a-172 (a)(1). On January 15, 2004, before the second trial commenced, the court, Wilson, J., granted the defendant's motion to suppress evidence, which the defendant had previously filed. Following that ruling, the state nolled the first three counts of the information, opting to prosecute only the failure to appear count. Trial began on January 20, 2004, and, on January 21, 2004, the jury returned a verdict of guilty on the count of wilful failure to appear in the first degree.² After a presentence investigation, the defendant was sentenced to "three years execution suspended, [two] years conditional discharge and a $5000.00 fine to be paid within [thirty] days. The following conditions were imposed: drug evaluation and treatment, psychiatric evaluation and treatment, [full-time] employment and/or school, report to Myrtice Wilson (mentor) on a weekly basis whereupon Ms. Wilson will provide a weekly progress report."

The defendant claims that (1) there was insufficient evidence from which the jury could find beyond a reasonable doubt that she wilfully failed to appear in court on August 13, 2003, (2) the court improperly admitted evidence of her 1991 conviction of the misdemeanor failure to appear in the second degree, (3) the court improperly denied her request to call the bail bonds-woman as a witness and (4) the declaration of a mistrial on August 13, 2003, was improper.

We must first discuss the defendant's claim of insufficiency of the evidence to allow the jury to find "wilfullness" proven beyond a reasonable doubt.³ We conclude that the defendant is correct and, therefore, her evidentiary claims and her claim that the prior declaration of a mistrial was improper are moot, and she is entitled to a judgment of acquittal. Before beginning our discussion, certain relevant procedural facts must be stated. At the close of the state's case-in-chief, the defendant filed a motion for a judgment of acquittal, which was denied. The defendant then put evidence before the jury. Because the waiver rule⁴ has been deemed constitutional; State v. Perkins, 271 Conn. 218, 228-45, 856 A.2d 917 (2004); we review the defendant's insufficiency of the evidence claim by examining all of the evidence before the jury. It is the propriety of the jury's verdict of guilty, not the propriety of the court's denial of a judgment of acquittal after the state's case-in-chief has been concluded, that we review. See id., at 240-41, 856 A.2d 917. In this case, we therefore consider all of the evidence, regardless of whether it was introduced by the state or the defendant.

"In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Jimenez, 74 Conn.App. 195, 201, 810 A.2d 848 (2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003).

The state produced the following evidence during its case-in-chief.⁵ The state's first witness, the deputy chief clerk of the court, testified that the court did not receive a telephone call from the defendant that she would be late to court. The state also had a portion of the transcript of August 12 and 13, 2003, read to the jury. The jury first heard Judge Reynolds' instructions to the parties to be in the courthouse on August 13, 2003, at 10:45 a.m. Next, the state read the transcript of the August 13, 2003 proceeding, in which the court ordered the defendant's bond forfeited and subsequently dismissed the jury at 11:28 a.m. The jury was also read the portion of the transcript in which defense counsel informed the court that she and the prosecutor had seen the defendant arriving at court.⁶ The state then rested its case.

After the state rested and the court denied the defendant's motion for a judgment of acquittal, the defendant testified.⁷ The defendant stated that she was working two jobs about the time of the August 13, 2003 court date. She delivered newspapers, beginning at 1 a.m., and returned home at 8 a.m. When she returned home, she sat on her couch and told her boyfriend to wake her, should she inadvertently fall asleep. At some point, the defendant did, in fact, fall asleep on her couch and did not wake until her attorney telephoned her from the courthouse. The defendant immediately departed for the court and arrived later that morning.

As this court has noted, "[t]he word wilful means doing a forbidden act purposefully in violation of the law. It means that the defendant acted intentionally in the sense that his conduct was voluntary and not inadvertent . . . . Thus, wilful misconduct is intentional misconduct, which is conduct done purposefully. . . ." (Emphasis in original; internal quotation marks omitted.) State v. Miranda, 56 Conn.App. 298, 313, 742 A.2d 1276 (2000), rev'd on other grounds, 260 Conn. 93, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002).

The state argues that the facts and factual inferences sufficiently support the jury's finding of wilfullness. It argues that (1) the defendant knew she was scheduled to be in court at 10:45 a.m. and chose to go to work the night before, from which the jury could have inferred that she began work knowing she would be exhausted the next morning, (2) she chose not to take sufficient steps to ensure that she would arrive in court on time; specifically, the state notes that she did not set an alarm clock, brew a pot of coffee or ask her attorney to give her a wake-up call and (3) by asking her boyfriend to wake her should she fall asleep, she intentionally abdicated personal responsibility for arriving in court on time.

The state cites three cases to support its argument that from the facts and inferences previously stated, the jury reasonably could have found the element of wilfullness proven beyond a reasonable doubt: In re Marshall, 549 A.2d 311 (D.C.1988); State v. Laws, 39 Conn.App. 816, 668 A.2d 392 (1995), cert. denied, 236 Conn. 914, 673 A.2d 1143 (1996); and State v. Turmon, 34 Conn.App. 191, 641 A.2d 138, cert. denied, 229 Conn. 922, 642 A.2d 1216 (1994).

In re Marshall is distinguishable. In that case, the defendant, an attorney, was found to be in contempt of court for failure to appear. In re Marshall, supra, 549...