State v. Mann, (AC 27779) (Conn. App. 3/2/2010)

• Decision Date: 02 March 2010
• Docket Number: (AC 27779).
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT, <I>v.</I> JASON MANN.

Page 1

STATE OF CONNECTICUT,

v. JASON MANN.

(AC 27779).

Appellate Court of Connecticut.

Argued October 21, 2009.

Officially released March 2, 2010.

Appeal from Superior Court, judicial district of Ansonia-Milford, Sequino, J.

Neal Cone, senior assistant public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Marjorie L. Sozanski, assistant state's attorney, for the appellee (state).

Gruendel, Beach and Alvord, Js.

Opinion

GRUENDEL, J.

The defendant, Jason Mann, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On appeal, the defendant challenges as improper the trial court's instructions to the jury concerning (1) his consciousness of guilt and (2) his interest in the outcome of the case when assessing his credibility, which he alleges violated both his federal and state constitutional rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2:15 a.m. on October 18, 2004, the defendant entered a Mobil gasoline station (Mobil station) and convenience store in Derby. Mohammed Khan, the cashier working that morning, recognized the defendant as an occasional customer. Indeed, the defendant occasionally purchased from that Mobil station soda, cigarettes and gasoline for his green 1985 Chevrolet C20 truck (green truck). When the defendant entered the store that morning, he exchanged pleasantries with Khan, and the two engaged in small talk. As Khan entered the cashier's booth, the defendant approached him from behind, brandished a silver folding knife and ordered Khan to open the cash register. Fearing for his safety, Khan complied, and the defendant removed most of the money, put it in his left jacket pocket and fled. Once the defendant was gone, Khan ran outside, used a telephone from a man in the parking lot and called the police, who responded shortly thereafter. Khan informed the police that he recognized the defendant as an occasional customer. He described the defendant as a "white male, approximately five foot eight . . . wearing a black jacket, underneath was a hooded gray sweatshirt, the hood was up over his head, but his face was visible, blue pants and described as having a . . . three to four day [beard] on his face."

Another officer patrolling the area that morning searched for the defendant upon notification over the police radio of the defendant's description. Approximately two blocks from the Mobil station, the officer observed an unshaven white male wearing a blue sweat suit, whom he approached and stopped because he partially matched the defendant's description. Unbeknownst to the officer, that individual was, in fact, the defendant. The officer asked the defendant if he had recently been on Pershing Drive, where the Mobil station was located, to which the defendant responded in the negative. The defendant explained that he was returning from his friend's house in Ansonia and that his friend was named "Black." Despite alleging to have been returning from Black's house, the defendant informed the officer that he neither knew Black's address nor Black's first name.¹ The defendant claimed that while returning from Black's house, his green Infiniti automobile (green car) had run out of gasoline and that he was walking along the street in search of a gasoline station. The officer provided the defendant with directions to the two nearest gasoline stations open at that hour—the Mobil station and a Cumberland Farms store located across the street from the Mobil station.

As the defendant began to walk in the direction of the gasoline stations, the officer observed him enter Griffin Hospital, stand in the main entrance for approximately thirty seconds and then leave. Upon exiting the hospital, the defendant proceeded in the direction opposite the gasoline stations. The officer again approached the defendant and asked whether he understood the directions. The defendant responded to that query in the affirmative and indicated that he had entered the hospital to call a friend for a ride to a gasoline station, even though the stations were approximately only two blocks away. He further indicated that he was unable to procure a ride, at which time the officer offered to drive the defendant to a gasoline station. The defendant accepted, and they proceeded to the Mobil station, which the defendant had just robbed. Upon their arrival, another officer already at the Mobil station instructed Khan to take a look at the defendant, seated in the rear of the police cruiser. Khan identified the defendant as the robber, and the defendant was placed under arrest. Police searched the defendant and discovered $17 in cash in his front left pocket.

After being placed under arrest, the defendant proclaimed his innocence and told the officers that he could direct them to the location of the green car to show them that it had, in fact, run out of gasoline. The police obliged and, before returning with the defendant to police headquarters, they drove to the location where the defendant claimed the green car was located. Unable to find the green car, an officer telephoned the defendant's home and spoke with Michael Mann, the defendant's brother, who informed him that their mother drives the green car. Mann also told the officer that his brother, the defendant, drives the green truck. The officer relayed that information to the Ansonia police department and, moments later, as the officers were en route to police headquarters with the defendant, they were notified that the green truck had been located nearby. They proceeded to that location, where they observed the truck with the keys in the ignition, a crumpled up dollar bill on the floor under the steering wheel, and a black jacket and gray sweatshirt between the driver's seat and door. The officers removed those items and discovered $100 in cash in the left front jacket pocket. They also discovered a silver folding knife in the jacket. All of those items were transported to police headquarters, where they were processed and stored. Thereafter, a jury trial followed, at the conclusion of which the jury found the defendant guilty of robbery in the first degree, and the court rendered judgment accordingly. From that decision, the defendant appeals.

I

The defendant first claims that the court's consciousness of guilt instruction was improper. We disagree.

The following additional facts are relevant to our resolution of the defendant's claim. The court instructed the jury on consciousness of guilt in pertinent part: "It is up to you as judges of the facts to decide whether the conduct of the defendant reflects a consciousness of guilt and to consider such in your deliberations in conformity with the instructions.

"False statements made by a defendant are circumstantial evidence from which the jury may, but is not required to, infer a guilty consciousness.

"In this case, you have heard evidence of statements made by the defendant after the time of the alleged offense, where the defendant when questioned by the Derby police on October 18, made statements that he had been driving a green [car] that ran out of gas on Olson Drive in Ansonia.

"First, you must determine whether the state has proven such statement and, if so, that such statement was false. You must then find proven that the defendant made such statement in connection with the crime. Any false statement, if proven false, tends to show a consciousness of guilt. It does not, however, raise a presumption of guilt.

"It is up to you as judges of the facts to decide whether any statement or conduct of the defendant reflects consciousness of guilt and to consider such in your deliberations in conformity with these instructions."

In its concluding instruction, the court stated: "Please remember that when I pointed out certain evidence during the course of these instructions, that was only to illustrate how you might go about relating the evidence you have heard to these instructions on the law. You should not confine your deliberations to the evidence that I mentioned; rather, you should consider all of the evidence, and it is your own recollection of the evidence that controls. Furthermore, the fact that I may have mentioned certain evidence does not imply that I have any opinion, one way or the other, what your verdict should be." At the conclusion of the court's charge, the defendant took exception to the court's reference to his statement about the green car, preserving his claim for our review. Cf. Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 591, 627 A.2d 443 (1993).

On appeal, the defendant argues that the court's reference to the green car in its instruction was improper. Specifically, the defendant contends that a court's "[i]nstructions should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over portions of the testimony on the other side which deserve equal attention." State v. Rome, 64 Conn. 329, 339, 30 A. 57 (1894). Essentially, the defendant claims that the instruction was improper because it was not evenhanded with respect to possible innocent explanations concerning his statement about the green car.²

In reviewing claims of instructional error, we are guided by the well settled standard that "[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The test to be applied is whether, when read as a whole, the charge presents the case to the jury in such a way that no injustice will result."...