State v. Laws

Decision Date13 June 1995
Docket NumberNo. 12860,12860
Citation37 Conn.App. 276,655 A.2d 1131
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Keith LAWS.

G. Douglas Nash, Public Defender, for the appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Gerard P. Eisenman, Asst. State's Atty., for the appellee (state).


FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered following a jury trial, on a seven count information. The defendant was convicted of threatening in violation of General Statutes § 53a-62(a)(1), 1 carrying a pistol without a permit in violation of General Statutes § 29-35, 2 criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1991) § 53a-217, 3 two counts of interfering with an officer in violation of General Statutes § 53a-167a, 4 using a motor vehicle without the owner's permission in violation of General Statutes § 53a-119b, 5 and escape from custody in violation of General Statutes § 53a-171. 6 On appeal, the defendant claims that (1) his conviction for escape from custody is not supported by the evidence, (2) the trial court improperly instructed the jury as to an essential element of the crime of escape from custody, (3) his convictions of carrying a pistol without a permit and criminal possession of a pistol violate the state and federal constitutional prohibitions against double jeopardy, and (4) the trial court improperly instructed the jury on an alternate means of committing interference with an officer that was not supported by the evidence. We affirm the judgment of the trial court.

The following facts could reasonably have been found by the jury. On May 15, 1992, at 12:30 p.m., Officer Michael Atkins of the Bridgeport police was patrolling the west side of Bridgeport when he was informed that there was a man carrying a gun on Yale Street. Atkins radioed in and went to investigate. Atkins observed the defendant on Wordin Avenue and motioned for the defendant to approach the patrol car. The defendant approached the patrol car while fumbling with something under his sweatshirt. Suspecting that the defendant might be armed, Atkins exited the cruiser without turning it off or removing the keys from the ignition. He walked toward the rear of the cruiser, keeping the vehicle between himself and the defendant. When Atkins circled the cruiser, the defendant began to run south on Wordin Avenue, and Atkins pursued him.

As they were running, the defendant pointed a gun at Atkins and yelled at him to get back. Atkins fell to the ground. He then got up, drew his gun and continued to pursue the defendant. The defendant again turned and pointed his gun at Atkins, and the chase continued. The defendant turned onto Hanover Street and Atkins lost sight of him.

As Atkins searched for the defendant, he heard dogs barking in the rear yard of 46-50 Wordin Avenue. As he entered the yard, he was joined by fellow officer Michael Muckro. Muckro was responding to Atkins' earlier radio call. He had seen Atkins' cruiser sitting in the middle of Wordin Avenue with the engine running. A bystander pointed in the direction that the defendant and Atkins had run. When Muckro saw Atkins in the yard of 46-50 Wordin Avenue, he exited his cruiser and joined him.

The officers noticed that the barking dogs were looking up to the second and third floor porches of the house at 46-50 Wordin Avenue. Atkins and Muckro decided to climb the back stairs of the house. With Atkins in the lead, they reached the third floor and Atkins saw the defendant's foot on the porch. Atkins pointed his gun at the defendant and yelled for him to freeze. The defendant yelled something in response. Atkins ordered the defendant to show his hands. The defendant said that he did not have anything, and Atkins proceeded onto the third floor porch.

On the porch, Atkins found the defendant with both legs over the railing, apparently preparing to jump. While still pointing his gun, Atkins told the defendant he was under arrest. Atkins then reholstered his weapon and grabbed the defendant by his sweatshirt. The defendant broke away and jumped from the porch, landing on the hatchway to the cellar. Atkins remained on the third floor porch holding the hood that had ripped off of the defendant's sweatshirt.

Atkins and Muckro ran down to the backyard and searched for the defendant. Someone from an adjacent house approached the officers and told them that the defendant had run toward the front of the house. Atkins and Muckro returned to the house to search for the gun. As they searched, they heard police sirens and saw police lights heading up the street.

On Wordin Avenue, a cruiser driven by Officer James Sheffield was responding to the scene. As Sheffield turned from State Street onto Wordin Avenue, he saw the defendant jump into Atkins' cruiser, which was still running, and speed off. Sheffield and Officer Ronald Henderson, who arrived in another cruiser, chased the defendant. The defendant hit two parked cars and a fence with Atkins' cruiser and then the engine stalled. Henderson and Sheffield exited their cruisers and attempted to get the defendant out of Atkins' cruiser, but the defendant locked the doors. After unsuccessfully attempting to smash the cruiser windows with a nightstick, Henderson drew his gun and shot out the rear window of the cruiser.

The defendant restarted Atkins' cruiser and sped away. Henderson and Sheffield returned to their own cruisers and resumed the chase. On Bird Street, in the P.T. Barnum apartment complex, the defendant jumped out of the moving cruiser. The cruiser continued onto a sidewalk where it hit a barrier and stopped. The defendant disappeared behind a building and was not apprehended until three weeks later.


The defendant's first claim on appeal is that there was insufficient evidence for the jury to have convicted him of escape from custody. He argues that (1) he was never in custody for the purposes of General Statutes § 53a-171, (2) the state failed to prove that he had the requisite intent to escape from custody, and (3) the state failed to prove that he was in custody pursuant to a court order or an arrest for robbery. The defendant concedes in his brief that these claims were not raised in the trial court. He asserts reviewability under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant's federal constitutional right not to be convicted of a crime upon insufficient proof. See State v. Adams, 225 Conn. 270, 275-76 n. 3, 623 A.2d 42 (1993).

"When reviewing sufficiency of the evidence claims, we impose a two-part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict.... Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) State v. Rivera, 32 Conn.App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). " 'In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.' " State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993).


Section 53a-171 provides that "[a] person is guilty of escape from custody if he escapes from custody." Custody is defined by General Statutes § 53a-168(2) as "restraint by a public servant pursuant to an arrest or court order...." The substitute information filed by the state in this case alleged that "on the 15th day of May, 1992, at or about 12:30 p.m. at 46-50 Wordin Avenue, Bridgeport, [the defendant], while charged with the crime of Robbery in the First Degree, a felony, did escape from custody, in violation of Section 53a-171(a) of the Connecticut General Statutes." The defendant argues that Atkins' telling him he was under arrest and grabbing his sweatshirt hood did not constitute "restraint by a public servant pursuant to an arrest." The defendant urges us to find that custody is not complete merely upon the utterance of words of arrest by a police officer. The defendant claims that it is necessary for a police officer to exercise control over the defendant before the defendant is in custody from which he can escape in violation of § 53a-171. We do not agree.

A person who is lawfully placed under arrest is in the legal custody of the police. See State v. Blyden, 165 Conn. 522, 533, 338 A.2d 484 (1973). " 'Precisely when an arrest occurs is a question of fact which depends on an evaluation of all the surrounding circumstances.' " State v. Derrico, 181 Conn. 151 158, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980). " 'To constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.' " Id., 181 Conn. at 159, 434 A.2d 356. 7

The defendant did not question that he was actually "arrested." He did not object to the jury instruction that placed on the state the burden of proving beyond a reasonable doubt that he "was placed under arrest by Officer Michael Atkins...." 8 One of the elements that the jury was required to find was that there was an arrest.

"A finding of fact will not be overturned on appeal unless it is clearly erroneous. State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989); State v. Young, 191 Conn. 636, 652, 469 A.2d 1189 (1983); see Practice Book § 4061. Where a constitutional issue turns upon a factual...

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