State v. McMurray

• Decision Date: 22 January 1991
• Docket Number: No. 13743,13743
• Citation: 585 A.2d 677,217 Conn. 243
• Parties: STATE of Connecticut v. Lawrence D. McMURRAY.
• Court: Connecticut Supreme Court

Page 677

585 A.2d 677

217 Conn. 243

STATE of Connecticut v. Lawrence D. McMURRAY.

No. 13743.

Supreme Court of Connecticut.

Argued Nov. 6, 1990.

Decided Jan. 22, 1991.

Todd D. Fernow, with whom were John P. Newman and Robyn L. Sondak, Certified Legal Interns, and, on the brief, Michael R. Sheldon, for appellant (defendant).

Harry Weller, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and John Malone, Sr. Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and SANTANIELLO, JJ.

CALLAHAN, Associate Justice.

The defendant, Lawrence D. McMurray, was charged in a substitute short form information with one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) and 53a-54a(a), one count of attempted murder in violation of General Statutes §§ 53a-49(a)(2) and 53a-54a(a), one count of acting as an accessory to assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-59(a)(1), and one count of acting as an accessory to kidnapping in the first degree in violation of General Statutes §§ 53a-8 and 53a-92(a)(2)(A) and (B). ¹ In response to the defendant's motion for a bill of particulars, the state filed a substitute long form information and bill of particulars charging the defendant with the same offenses.

A jury acquitted the defendant of conspiracy to commit murder and attempted murder, but convicted him as an accessory to both assault in the first degree and kidnapping in the first degree. He was sentenced to twenty years imprisonment for the assault conviction and twenty-five years imprisonment for the kidnapping conviction, with the sentences running consecutively, for a total effective term of forty-five years. The defendant appealed to this court pursuant to General Statutes § 51-199(b)(3). ²

The defendant claims that he is entitled to a new trial because: (1) his convictions as an accessory to both assault in the first degree and kidnapping in the first degree must be set aside because the substitute long form information failed to charge him with an essential element of each of those offenses; (2) the trial court's references to the information in its instructions to the jury made it reasonably possible that the jury was misled as to the required mental state for those crimes; and (3) the trial court improperly denied him access to a psychiatric report concerning the victim. We reject each of these claims and affirm the judgment of the trial court.

The charges in this case arose out of an attack perpetrated on Charles Gluck on January 16, 1987. The jury could reasonably have found that, in the fall of 1986, Linda Gluck, the victim's wife, began using cocaine with the defendant. In December 1986, Linda and the victim agreed to allow the defendant to administer a self-styled "step-down" program designed to reduce gradually Linda's dependence on the drug. On January 13, 1987, the victim and his wife had a heated argument in their home concerning her continued addiction to cocaine, during which the victim threatened to strike his wife and to take their children. The defendant, who was present during this argument, then threatened the victim, who responded by ordering the defendant to leave. Because the victim and his wife were worried by the defendant's threat, Linda pursued the defendant and persuaded him to return and reconcile his differences with her husband.

When the victim awoke early the next morning to go to work, the defendant, who had spent the night at the Gluck home, told him that he had chased two men whom he had seen tampering with the propane tanks at the rear of the house. Because the victim's position with the Navy required him to be gone overnight, it was decided that Linda and the two children would stay at the defendant's home in West Hartford until the defendant investigated the incident involving the propane tanks.

Linda and the children stayed with the defendant on January 14 and 15, 1987. On January 14, 1987, Linda overheard the defendant, who was talking on the telephone, say, "we have to do something about Charlie." On the same day the defendant discovered Linda calling her husband to warn him that he was in danger. The next day he persuaded her to call the victim back to tell him that everything was fine.

On January 15, the defendant spent a portion of the day trying to locate Arthur Salley. Linda feared that the defendant had asked Salley to harm her husband. At approximately 2 a.m. on January 16, the victim, armed with a shotgun, came to the defendant's home in order to pick up his wife and children. Arthur Salley and his brother, Howard Salley, arrived at the defendant's home shortly thereafter. Inside the home, the defendant handcuffed the victim when the victim's attention was diverted. As the defendant did so, the victim jerked backwards and fell unconscious when the handcuffs hit him in the face. Arthur, with the assistance of his brother, put the victim into Arthur's motor vehicle.

After the defendant told Arthur that the victim's car had to be disposed of, Arthur drove off in his vehicle with the victim while Howard followed in the victim's car. During this ride Arthur told the victim, who was semiconscious, that his wife wanted to stay where she was, and that he was going to teach the victim a lesson for interfering with the wrong people. After leaving the victim's car in a parking lot, Howard joined his brother and they drove the victim to Keney Park in Hartford where the victim tried to escape when he was taken out of the vehicle. Arthur, however, caught the victim and hit him three times with a metal "j-hook," ³ inflicting a blow that pierced his skull. The two brothers then left the victim lying in the park. The victim subsequently managed to revive sufficiently to get help at a nearby apartment building. ⁴ As a result of the assault, the victim suffered serious injuries, including damage to the area of the brain that controls speech.

I

The defendant argues that counts three and four ⁵ of the substitute long form information failed to charge an essential element, namely the requisite mental state, of the offenses of accessory to first degree assault and accessory to first degree kidnapping, and that this alleged omission violated his right to be informed of the nature and cause of the accusation against him guaranteed under the sixth and fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution. ⁶ The defendant asserts that these counts failed to charge that he, personally, had to possess the specific intent required for commission of assault in the first degree and kidnapping in the first degree. We disagree.

The underlying purpose of the constitutional right to be informed of the nature and cause of a criminal charge is to inform "the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise" and to make the charge "definite enough to enable [the defendant] to plead his acquittal or conviction in bar of any future prosecution for the same offense...." State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979), citing Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). The defendant does not claim that the alleged failure by the state to charge an essential element of these offenses caused any surprise or prejudiced his defense in any way, nor does he contend that the information was insufficient for double jeopardy purposes. He does contend, however, that because of the defect in the information, the trial court lacked jurisdiction to impose a valid judgment, regardless of whether there was any prejudice. ⁷ Although the defendant raises this claim for the first time on appeal, it is reviewable pursuant to Practice Book § 811. ⁸ When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state. See Hagner v. United States, 285 U.S. 427, 433, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Hooker, 841 F.2d 1225, 1228-29 (4th Cir.1988); United States v. Previte, 648 F.2d 73, 80 (1st Cir.1981); United States v. Fistel, 460 F.2d 157, 161 (2d Cir.1972). Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is " 'so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had.' " United States v. Fistel, supra, 161, quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir.1965), cert. denied, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966).

Because the defendant makes the same argument in alleging that both the third and fourth counts of the information fail to contain an essential element of the charged offenses, namely specific intent, ⁹ and because both counts are similarly worded, our analysis of the third count will also dispose of the defendant's claim with respect to the fourth count. The relevant portion of the third count states that "Lawrence D. McMurray, acting with the mental state required for commission of the crime of ASSAULT IN THE FIRST DEGREE, did solicit, command, importune and intentionally aid Arthur K. Salley and others to engage in conduct which constituted the crime of ASSAULT IN THE FIRST DEGREE in that the said Lawrence D. McMurray or others, with intent to cause serious physical injury ... caused such injury ... by means of a dangerous instrument...." (Emphasis added.) The defendant focuses on the emphasized language in arguing that the information must be interpreted to state that the defendant could be convicted as an accessory to assault even if he did not personally intend to cause serious physical injury to the victim, as long as one of the principals possessed that intent.

The...