State v. Moye

• Decision Date: 09 October 1979
• Citation: 177 Conn. 487,418 A.2d 870
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert MOYE.

Page 870

418 A.2d 870

177 Conn. 487

STATE of Connecticut v. Robert MOYE.

Supreme Court of Connecticut.

Argued Dec. 12, 1978.

Decision Released May 15, 1979.

Certiorari Granted Oct. 9, 1979. See 100 S.Ct. 199.

John R. Williams, New Haven, with whom, on brief, was Sue L. Wise, New Haven, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty. and John J. Kelly, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LOISELLE, Associate Justice.

The defendant, Robert Moye, was indicted by a grand jury for the crime of murder in violation of § 53a-54a(a) of the General Statutes. Upon a trial to the jury, the defendant was found guilty as charged. From the judgment rendered on the verdict, the defendant has appealed to this court.

The claims the defendant has raised on this appeal are that the court erred (1) in its charge on intent; (2) in allowing testimony related to the defendant's postarrest silence; (3) in admitting evidence of prior bad acts and criminal conduct by the defendant; (4) in failing to grant the defendant's motion to suppress; and (5) in refusing to grant the defendant's motion to set aside the verdict.

The defendant's first claim is that the trial court's instruction on intent denied him the protection of the presumption of innocence and due process of law. His objection is directed to the following portion of the charge: "Every person is presumed to intend the natural and necessary consequences of his own actions." He contends that this instruction shifted the burden of proof of the essential element of intent from the state to him in violation of Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Defense counsel failed to request a charge on this issue or to except to the charge that was given. Such an omission ordinarily would preclude us from reviewing the claimed error. See Practice Book, 1978, §§ 315, 3063; State v. Fredericks, 154 Conn. 68, 72, 221 A.2d 585 (1966); State v. Rafanello, 151 Conn. 453, 456, 199 A.2d 13 (1964). An exception to this rule, however, permits a claim to be raised for the first time on appeal where it involves the defendant's constitutional right to a fair trial. State v. Adams, 176 Conn. 138, 145, 406 A.2d 1 (1978); State v. Hauck, 172 Conn. 140, 148, 374 A.2d 150 (1976); State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). This assignment of error, if correct, would amount to such a deprivation; see Cool v. United States, 409 U.S. 100, 93 S.Ct. 354, 34 L.Ed.2d 335 (1972); and will therefore be considered.

The defendant admitted the shooting and killing of Thomas McDuffie, but insisted that the shooting was not intentional. He claimed that he was twirling a gun and it went off accidentally while both were in the defendant's apartment. The issue of intent, therefore, was paramount in this case.

" 'The test to be applied to any part of a charge is whether the charge considered as a whole presents the case to the jury so that no injustice will result.' State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645, 649; Siladi v. McNamara, 164 Conn. 510, 515, 325 A.2d 277. It is well established that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Crawford, 172 Conn. 65, 69, 372 A.2d 154; State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147." State v. Roy, 173 Conn. 35, 40, 376 A.2d 391, 394 (1977); see also Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The issue then is whether the charge taken as a whole was correct in law and sufficient for the instruction of the jury. Filakosky v. Valente, 175 Conn. 192, 397 A.2d 95 (1978).

It is unquestioned that under General Statutes § 53a-54a(a) the state must prove beyond a reasonable doubt that an accused possessed the specific intent to cause death because intent to achieve this end is an essential element of the crime charged. State v. Holley, 174 Conn. 22, 25-26, 381 A.2d 539 (1977); State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973). "Since a determination of the defendant's intent involves an examination of his mental state, however, it necessarily must be proved by his statements or actions. State v. Sober, 166 Conn. 81, 93, 347 A.2d 61; State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381; State v. Mazzadra, 141 Conn. 731, 735, 109 A.2d 873. 'Intent may be, and usually is, inferred from conduct'; State v. Cofone, supra." State v. Holley, supra, 174 Conn. 25-26, 381 A.3d 541. This court in some of its opinions has stated that every person is conclusively presumed to intend the natural and necessary consequences of his acts; State v. Holley, supra, 26, 381 A.2d 539; State v. Smith, 157 Conn. 351, 354, 254 A.2d 447 (1969); but it has never ruled on the issue raised in this appeal-the constitutionality of the use of this presumption in the charge to the jury.

The defendant claims that this charge impermissibly shifted the burden of proof in violation of Mullaney and Patterson. In United States v. Robinson, 545 F.2d 301, 305-306 (2d Cir. 1976), the Second Circuit Court of Appeals decided that the "natural and probable consequences" charge was reversible error and reiterated its continued disapproval of this charge on the ground that it appeared to shift the burden of proof. It should be noted, however, that the charge under fire in Robinson was coupled (p. 305) with the phrase: "So, unless the contrary appears from the evidence, the jury may draw the inference that the defendant intended all the consequences which one in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the defendant." It is the combination of the two phrases which the Second Circuit Court of Appeals found to magnify the potential for burden shifting. United States v. Robinson, supra, 306. Where the second part of the instruction, " 'unless the contrary appears from the evidence,' " was not included in the charge, as is the case in this appeal, the courts have disapproved of the charge but have not found reversible error, if sufficient additional instructions on the issue of intent were given to ensure that the jury understood which side had the burden of proof. See United States v. Erb, 543 F.2d 438, 447 (2d Cir. 1976); United States v. Barash, 365 F.2d 395, 402-403 (2d Cir. 1966). In Mann v. United States, 319 F.2d 404 (5th Cir. 1963), cert. denied, 375 U.S. 986, 84 S.Ct. 520, 11 L.Ed.2d 474 (1964), on which the defendant has relied heavily, the court found plain error because the instruction complained of there was coupled with the phrase " 'unless the contrary appears from the evidence.' "

In United States v. Garrett, 574 F.2d 778, 781-82 (3d Cir.), cert. denied, 436 U.S. 919, 98 S.Ct. 2265, 56 L.Ed.2d 759 (1978), the court commented that part of the charge had the potential of "confusing" the jury, but found nevertheless that the charge as a whole, which included instructions on the presumption of innocence, the burden of proving guilt beyond a reasonable doubt, the defendant's and prosecution's respective responsibilities for producing evidence, proving intention and calling witnesses, fully informed the jury of the government's burden of proof on the question of intent. Further, it found (p. 782) that the "natural and probable consequences" charge, without the " 'unless the evidence of a case leads you to a contrary conclusion' " clause, was not improper.

In this regard, the Superior Court in the present case charged the jury on the presumption of innocence, the burden upon the state to prove the defendant guilty beyond a reasonable doubt, and the burden upon the state to prove every essential element of the crime charged beyond a reasonable doubt. The court also charged shortly after the "natural and necessary consequence" statement that "the only way in which a jury can determine what a person's purpose or intention was at any given time, and from his own testimony, is by determining what his conduct was and what the circumstances were surrounding that conduct and from these infer or conclude what his purpose or intention was."

In view of the fact that the charge was balanced by other portions clearly delineating the state's burden of proof, and that it was not coupled with the more prejudicial portion mentioned above, the charge did not deprive the defendant of any fundamental constitutional right or a fair trial.

The defendant's second assignment of error is that the trial court infringed on his fifth and sixth amendment rights to silence and to the assistance of counsel by permitting the state to prove that the defendant, during police interrogation, had invoked his right to remain silent after consulting with his attorney, and that the defendant's attorney had objected to certain testing procedures conducted at police headquarters. The second half of this claim is addressed first.

The defendant's argument is that the prosecution violated his constitutionally protected right to counsel by eliciting, on cross-examination of one of the detectives involved in the investigation, that defense counsel had objected to the performance of a neutron test on the defendant's hands. The defendant's claim is that the introduction of this testimony was an abridgement of his constitutional right to counsel, which, taken in conjunction with the testimony that he relied on the advice of counsel in ceasing to give his statement, amounted to a pattern on the part of the prosecution of eliciting evidence of constitutionally protected conduct that would prejudice the jury against him.

The defendant, however, makes only passing reference to this incident in his brief. He also...