State v. Kurvin

• Citation: 186 Conn. 555,442 A.2d 1327
• Court: Connecticut Supreme Court
• Decision Date: 30 March 1982
• Parties: STATE of Connecticut v. Robert KURVIN.

Page 1327

442 A.2d 1327

186 Conn. 555

STATE of Connecticut v. Robert KURVIN.

Supreme Court of Connecticut.

Argued Jan. 13, 1982.

Decided March 30, 1982.

Suzanne Zitser, Asst. Public Defender, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and Bruce A. Sturman, Asst. Public Defender, for appellant (defendant).

Roland D. Fasano, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before SPEZIALE, C. J., and HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

PARSKEY, Associate Justice.

This appeal ¹ challenges the trial court's instructions to the jury in two respects. First, it is claimed that the instructions on intent were constitutionally inadequate. Second, it is asserted that the instruction pertaining to the factors to be considered by the jury in weighing the defendant's credibility as a witness was constitutionally prejudicial. Because the defendant filed no request to charge and because he took no exception to the court's instructions, we must first determine whether they raise questions of constitutional dimensions; State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); and if so, then determine whether there is any merit to such claims.

I

The court charged the jury on robbery in the first degree and on the lesser included offense of robbery in the third degree. It instructed the jury that robbery occurs when the accused uses or threatens the immediate use of physical force "for the purpose of committing a larceny." (Emphasis added). In discussing larceny ² the court charged in the language of General Statutes § 53a-119 that "(a) person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes ... or withholds such property from an owner." Although proof of larceny requires proof of a taking of property with the intent to deprive the owner of possession permanently; State v. Raffone, 161 Conn. 117, 127-28, 285 A.2d 323 (1971); the court did not amplify its instructions by explaining that the deprivation or appropriation intended must be permanent.

Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged; Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, 2324, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881, 1889, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); including intent where intent is one of those elements. Mullaney v. Wilbur, supra, 421 U.S. 702, 95 S.Ct. 1891. If there is a reasonable possibility that the jury were misled by a charge on such intent then the giving of such charge constitutes reversible error. State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976); State v. Rose, 169 Conn. 683, 688, 363 A.2d 1077 (1975). The court's failure to explain to the jury the extent of the intended deprivation of property required as an element of the offense raised a sufficient constitutional issue to satisfy the requirements of Evans. We, therefore, turn to the merits of the constitutional claim.

A court's charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial. See State v. Rose, supra, 687, 363 A.2d 1077. With this in mind the following facts are pertinent: On December 15, 1978, at approximately 2 p. m., members of the New Haven Police Department responded to 257 Highland Street in New Haven on a complaint of a robbery. At the Highland Street address, police spoke with the complainants Connie Civita and Rosemary Greene and obtained a description of the individual and vehicle involved in the robbery. This information was broadcasted to other officers in the area and shortly thereafter, in the area of Shelton Avenue and Goodrich Street, police spotted a vehicle and a suspect fitting the description given by the complainants.

At an Arco Gas Station on the corner of Shelton Avenue and Goodrich Street, police attempted to approach the suspect for questioning. The suspect walked away from the area of the officers, however, eventually ducking behind a building and reappearing seconds later. Fearing for their safety, officers drew their guns, searched the suspect, subsequently identified as the defendant, and searched the area behind the building where an automatic small caliber weapon, a holster and three cartridges were found.

Shortly thereafter police brought the complainants to the Arco Station and the defendant was positively identified as the perpetrator of the robbery by both of them. He was then placed under arrest and transported to the police station. A subsequent check of state and local police records revealed that the defendant did not, as of December 15, 1978, have a proper permit to carry a gun. Subsequent investigation revealed that the gun was operable and the cartridges prime.

At the trial, two significantly different versions of the events of December 15, 1978 were put into evidence, one by state witnesses and one by the defense. According to state witnesses, after driving Connie Civita, her daughter, and Rosemary Greene to Starr Street and Sheffield Avenue in his car, the defendant robbed the complainants at gunpoint of $63, threatening to shoot the child if the money was not turned over.

The defendant subsequently took the stand and indicated that there was no robbery nor were any threats made while he drove the complainants and the child in his vehicle. Rather, he testified, when he received an indication that Greene was going to renege on an agreement with respect to drugs she had purchased earlier and was going to share with the defendant, he asked to see the quantity of drugs she had. Once he obtained the drugs for the supposed purpose of assessing the weight of the drugs, he simply informed Greene that he was going to keep the drugs, and subsequently dropped the complainants and the child off. He indicated that though a gun was in the car, he never used it to get the drugs. Thus, though the defendant testified that he obtained property from Greene and that he told her he was going to keep it, according to his version the property consisted of drugs rather than money and no gun or other threat of force was used to obtain it. The defendant does not challenge the court's charge that whether the property taken was drugs or money was immaterial.

The standard with which to test jury instructions in criminal cases is easier to formulate than to apply. " 'Although, in general, the failure to give an instruction is not error unless a request therefor was made, the pertinent principles of substantive law must always be charged, even if the trial judge must do so on his own motion. In defining an offense, the trial judge should include every material element.' " 4 Wharton, Criminal Procedure (12th Ed.) § 540. The court's instructions on the offense charged must include every element of that offense. 75 Am.Jur.2d, Trial § 713; see annot., " 'Duty in instructing jury in criminal prosecution to explain and define offense charged,' " 169 A.L.R. 315. " 'If justice is to be done ... it is of paramount importance that the court's instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime.' United States v. Clark, 475 F.2d 240, 248 (2d Cir. (1973))," State v. Griffin, 175 Conn. 155, 163, 397 A.2d 89 (1978). When a proper request is filed pursuant to Practice Book § 852 or exception is taken pursuant to § 854 the test is whether the charge properly covered the substance of the written request or properly and adequately covered the specific subject matter of the exception. State v. Reardon, 172 Conn. 593, 602, 376 A.2d 65 (1977); State v. Huot, 170 Conn. 463, 465, 365 A.2d 1144 (1976). In the absence of a request or an exception, to warrant reversal the error must consist of a failure to submit to the jury the essential ingredients of the offense on which the conviction rests; Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1945); see State v. Reardon, supra; or the case must involve plain error requiring such result in the interest of justice. Practice Book § 3063; State v. Gelinas, 160 Conn. 366, 279 A.2d 552 (1971); cf. Fed.R.Crim.Proc. 52(b); United States v. Clark, supra, 250.

In considering the manner in which the standard is to be applied, we must bear in mind two concepts which if not mutually exclusive at least appear to lead us in opposite directions. The first concept simply stated is that the claimed error under review, because it appears to involve an essential element of a crime, must be examined if not under a constitutional searchlight at least in a constitutional penumbra. "If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt the conviction cannot stand." Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-1248, 90 L.Ed. 1557 (1945). Examples of the application of this standard, whatever the stated rationale, are cases where the failure in the charge, when viewed as a whole, consists in omitting or misstating an essential...