State v. Nixon, 11201
| Decision Date | 27 July 1993 |
| Docket Number | No. 11201,11201 |
| Citation | 32 Conn.App. 224,630 A.2d 74 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Irving NIXON. |
Kathleen M. Paul, Certified Legal Intern, with whom were Timothy H. Everett and, on the brief, Mark Sheehan and Rachel L. Todd, Legal Interns, for appellant (defendant).
James M. Ralls, Asst. State's Atty., with whom, on the brief, was Patricia Swords, State's Atty., for appellee (state).
Before HEIMAN, FREDERICK A. FREEDMAN and SCHALLER, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to assault an employee of the department of correction; General Statutes §§ 53a-48 and 53a-167c(a)(1); 1 assault of an employee of the department of correction; General Statutes §§ 53a-8 and 53a-167c(a)(1); second degree assault; General Statutes §§ 53a-8 and 53a-60 (a)(5); 2 and rioting at a correctional institution. General Statutes § 53a-179b. 3
The defendant claims that the trial court (1) should have stricken the added counts charged by the state in the substitute information and granted the defendant a continuance, (2) arraigned the defendant in the presence of the jury in violation of his right under the fifth amendment to the United States constitution not to be compelled to testify against himself, 4 (3) allowed cross-examination that was irrelevant and beyond the scope of direct examination, (4) convicted and sentenced the defendant in violation of the double jeopardy clause of the fifth amendment to the United States constitution, 5 (5) improperly instructed the jury on issues of concurrency and unanimity, (6) should have set aside the conviction of rioting due to insufficient evidence, and (7) improperly instructed the jury on the charge of rioting. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. The defendant was incarcerated in the segregation unit of the Somers correctional institution. On the morning of January 11, 1991, correction employees Moses Williams, John Pearson, Stewart Felton and Michael Rutkowski were on duty when the defendant returned to his cell unit.
When he reentered the segregation unit, the defendant proceeded to cell number seventy-eight where another inmate, Francis Anderson, was incarcerated. Anderson was a particularly dangerous inmate. While correction employees were attempting to cuff Anderson's hands behind his back and shackle his feet, the defendant yelled "pop seventy-eight," a term used to request a correction employee to open a cell. In response, a prison employee mistakenly heeded the defendant's request. Anderson emerged from the cell unrestrained and proceeded toward a staircase. He ignored repeated orders to return to his cell.
Pearson sought to restrain the defendant, but the defendant was unwilling to cooperate and obey orders. Pearson was concerned that the defendant posed a greater threat than did Anderson. As the defendant began to walk away, he asked Anderson to assault a correction employee in exchange for $200 in cash. 6 Anderson agreed and punched Pearson in the jaw. Anderson tried to strike Pearson again while several other employees attempted to restrain him. In the course of the scuffle, Anderson threw Williams from his back and struck Rutkowski. As a result of Anderson's punch, Rutkowski sustained an injury to his forehead. Finally, with the help of the defendant, the officers regained control of Anderson and returned him to his cell.
After the jury returned a guilty verdict, the defendant filed a motion for judgment of acquittal. The court denied the motion, 7 and this appeal ensued.
The defendant claims that the trial court improperly refused to strike the state's substitute information or, alternatively, to grant the defendant a continuance. The defendant's argument is predicated on the assertion that by bringing additional charges immediately before jury selection, the state prejudiced the defendant's substantive rights. We disagree.
On May 7, 1991, the state charged the defendant with four criminal offenses: two counts of conspiracy to assault a correction employee and two counts of conspiracy to commit second degree assault. On October 28, 1991, the day before jury selection, 8 the state filed a substitute information that set forth three new charges: accessory to assault of a correction employee, accessory to second degree assault, and rioting. 9
Before jury selection, the defendant objected to the additional charges and sought a continuance. While defense counsel stated to the court that the added counts would affect his questioning of potential jurors, he did not specify at any time how the new charges would affect the voir dire. The court overruled the defendant's objection and noted an exception to the ruling. The state called its first witness seven days later.
"[F]or purposes of Practice Book §§ 623 and 624, a criminal trial begins with the voir dire of the prospective jurors." State v. Cole, 8 Conn.App. 545, 551-52, 513 A.2d 752 (1986). Before the commencement of a criminal trial, § 623 controls the alteration of charges brought against a criminal defendant. This section provides that (Emphasis added.) Practice Book § 623.
In this case, it is undisputed that the substitute information was filed prior to the commencement of the voir dire. Consequently, § 623 governed the trial court's analysis. State v. Cole, supra. The critical question therefore is whether the substitute information prejudiced the defendant's rights to the extent that the trial court abused its discretion when it chose not to strike the added counts or to grant the defendant a continuance.
In State v. Huff, 10 Conn.App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987), this court considered a similar issue in a virtually identical context. In Huff, the state originally charged the defendant with robbery in the first degree. Id., 10 Conn.App. at 344, 523 A.2d 906. Immediately prior to the voir dire, however, the state filed a substitute information and added the charge of assault in the second degree. The defendant moved to strike the added count or, alternatively, for a one week continuance. The trial court denied both motions, and the presentation of evidence began two days later. Id. at 346-47, 523 A.2d 906.
The issue before this court in Huff was whether the added charge prejudiced the defendant's substantive rights. Id., at 345, 523 A.2d 906. We held that it did not, reasoning that (1) the additional count involved the same "factual matrix" as the first count, (2) the defendant was able to prepare sufficiently for the trial on the basis of his access to police reports in the state's attorney's file, and (3) the defendant did not dispute the commission of the crime, but rather claimed that he was not involved. Id., at 346, 523 A.2d 906.
In the present case, the trial court's ruling is fully consistent with our decision in State v. Huff, supra, at 344-47, 523 A.2d 906. Clearly, the added counts of accessorial liability and rioting arose out of the same factual matrix as the initial charges. Further, because the defendant at all times knew of the alleged facts underlying the added crimes and because he had notice of the added charges a full week prior to the commencement of the state's case, we are convinced that the defendant had ample opportunity to prepare for trial. Moreover, the defendant never claimed that Anderson did not commit the assault of the correction employee. 10 Instead, he claimed that he was not involved with the commission of the crime. We conclude that the sound reasoning of State v. Huff, supra, is equally applicable to the present case.
The defendant argues that the trial court's decision impeded his ability to conduct a meaningful voir dire, especially since the new counts subjected him to significantly greater sentencing exposure. We reject this contention for several reasons. First, the defendant never explained to the trial court how the added counts would alter his questioning of the potential jurors. We noted in State v. Waterman, 7 Conn.App. 326, 334-35, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986), that the defendant must make a specific showing of prejudice to establish a violation of due process. Here, the defendant's bare assertion of prejudice was not enough to establish a violation of due process.
Second, while it is true that the state did not officially apprise the defendant of the added charges until shortly before voir dire, the defendant had an opportunity to question the potential jurors on matters pertaining to the added charges during the voir dire. Additionally, we are aware that the state has broad authority to amend its charge prior to voir dire. State v. Cole, supra, 8 Conn.App. at 550, 513 A.2d 752. Indeed, § 623 of our rules of practice offers the state a vehicle through which to expose a defendant to greater criminal liability, provided that the state does not prejudice the defendant's substantive rights.
We conclude that, in light of State v. Huff, supra, the added criminal charges did not prejudice the defendant's substantive rights. The trial court acted within its discretion, and we will not substitute our judgment for that of the trial court. See Fisher v. Fisher, 28 Conn.App. 483, 487, 611 A.2d 440 (1992).
The defendant claims that his arraignment in the presence of the jury violated his constitutional right not to be compelled to testify against himself. We disagree.
On...
To continue reading
Request your trial
-
State v. Hamilton
...is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives. See State v. Nixon, 32 Conn.App. 224, 630 A.2d 74 (1993); Fisher v. Fisher, 28 Conn.App. 483, 487, 611 A.2d 440 The judgment of the Appellate Court is affirmed. In this opinion K......
-
State Of Conn. v. Courchesne, No. 17174.
...been drastically changed since Swift's time”; State v. Van Allen, 140 Conn. 586, 589, 102 A.2d 526 (1954); see also State v. Nixon, 32 Conn.App. 224, 246, 630 A.2d 74 (1993) (refusing to engraft common-law definition of rioting requiring participation of at least three participants, as desc......
-
State v. Clark, 15715
...correctness. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979)." (Internal quotations marks omitted.) State v. Nixon, 32 Conn.App. 224, 234, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). "It is well settled that the scope of cross-examination is limited to matt......
-
State v. Ingram, 14844
...717, 89 S.Ct. 2072, 2076-77, 23 L.Ed.2d 656 (1969). The presumption is, however, not a conclusive presumption. State v. Nixon, 32 Conn.App. 224, 238-39, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995); State v. Russell, 25 Conn.App. 243, 251, 594 A.2d 1000 (1991). Rather, it ......