State v. Nugent

• Decision Date: 06 May 1986
• Citation: 199 Conn. 537,508 A.2d 728
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Frederick NUGENT.

Page 728

508 A.2d 728

199 Conn. 537

STATE of Connecticut v. Frederick NUGENT.

Supreme Court of Connecticut.

Argued Feb. 4, 1986.

Decided May 6, 1986.

John R. Williams, New Haven, with whom, on brief, was Beth Merkin, Law Student Intern, for appellant (defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Michael Dearington, Asst. State's Atty., for appellee (state).

Before HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

The defendant was charged in a substitute information with kidnapping in the second degree, burglary in the third degree, and assault in the third degree. After a jury trial, he was convicted of kidnapping in the second degree in violation of General Statutes § 53a-94 ¹ and acquitted of the other two charges. The trial court sentenced the defendant to a term of imprisonment of four years, suspended the execution of the sentence and placed him on probation. The defendant was also assessed a fine in the amount of $2000.

The defendant claims on appeal that the trial court erred: (1) by failing to charge the jury on the defense of mistake of law under General Statutes § 53a-6, ² (2) by charging the jury that as a matter of law the restraint of the victim by the defendant was unlawful; and (3) by denying the defendant's motion for a judgment of acquittal at the close of the state's case. The defendant also claims that he was denied the effective assistance of counsel. We conclude that the trial court erred by charging the jury that the restraint of the victim by the defendant was unlawful as a matter of law. Since the disposition of this claim is dispositive of the case, we do not consider the defendant's other claims of error.

The defendant was a professional bail bondsman who wrote bail bonds as an agent for the Peerless Insurance Company. On June 3, 1983, he posted a bail bond in the amount of $500 for William Barraso. Prior to June 3, Barraso had been arrested under the name of William Shea and confined in lieu of bond in New Haven on charges of larceny in the sixth degree, and failure to appear in the second degree. On June 7, 1983, Barraso appeared in court and his case was continued until June 14, 1983. On June 14, Barraso failed to appear as scheduled in geographical area number six in New Haven. On that date, the court, Maiocco, J., called and forfeited the $500 bond posted by the defendant and ordered that a rearrest warrant be issued for Barraso. The defendant was notified of the bond forfeiture shortly thereafter and a rearrest warrant was issued on either June 28 or June 30, 1983.

On the evening of July 18, 1983, while the rearrest warrant was outstanding the defendant was notified by Robert McLellan that Barraso could be located in a rooming house at 73 Whitney Avenue in New Haven. McLellan resided at the same rooming house and had known Barraso for three or four years. He had induced the defendant to post Barraso's bond and was apprehensive that he might have some personal liability on the bond if Barraso did not fulfill his obligation to appear in court. After being contacted by McLellan, the defendant went to New Haven police headquarters that same evening and inquired of Sergeant Michael Sweeney, who was in charge of the detention area, whether there were outstanding warrants for Barraso. Sweeney called the records division on the telephone and, because he was busy, handed the phone to the defendant to allow him to ascertain the requested information for himself. The defendant testified that at that time he was told there were two outstanding arrest warrants for Barraso.

At about 10 p.m. the defendant met McLellan and they went to 73 Whitney Avenue. McLellan, who had a key, admitted them to the building and they proceeded to a room rented by James Shea. Shea was a friend of Barraso and Barraso frequently slept in his room. While McLellan was knocking on the door to gain admittance, James Shea arrived in the hallway outside his room, opened the door, and McLellan and the defendant entered. The defendant confronted Barraso, who had been sleeping, and requested him to dress and accompany him and McLellan to New Haven police headquarters to turn himself in. Barraso protested and told the defendant he would "straighten it out tomorrow." The defendant persisted and Barraso reluctantly dressed and accompanied the defendant and McLellan. Once outside the building he bolted, but after a short chase he was caught by the defendant, placed in the back seat of the defendant's automobile and driven to New Haven police headquarters.

When the trio arrived at headquarters at about 10:30 p.m., Sweeney was still on duty in the detention area. The defendant told Sweeney that Barraso had come to turn himself in voluntarily. After observing the situation and talking with Barraso, Sweeney concluded that Barraso had not appeared at headquarters voluntarily and inquired of the defendant whether he had a "bail piece." ³ See General Statutes § 54-65. The defendant said that he did not but that there were outstanding arrest warrants. Sweeney then checked with the records division and was told that the only active warrant for Barraso was a West Haven arrest warrant and that there were no New Haven warrants. The record is unclear as to the reason, but apparently the rearrest warrant issued at the end of June by the Superior Court in geographical area number six was not yet at New Haven police headquarters. At that point, Sweeney had Barraso arrested on the West Haven warrant and he arrested the defendant and McLellan for the unlawful restraint of Barraso.

At trial, in response to questions by the prosecutor, the defendant opined that he had no right because of his status as a professional bondsman to take Barraso into custody or restrain him despite the fact that Barraso had failed to appear in court on June 14, his bond had been forfeited, and a rearrest warrant issued. Nugent's defense rather was that Barraso had accompanied him and McLellan to police headquarters voluntarily and both he and McLellan testified to that effect. There was sufficient evidence, however, for the jury to find that Barraso had been restrained and forced to accompany the defendant and McLellan.

At the conclusion of the evidence, the trial court charged the jury that the defendant had no special arrest powers and no authority exceeding that of a private citizen to apprehend and detain Barraso. It also instructed the jury that the rearrest warrant was directed to a "proper officer," that the defendant was not a "proper officer" and had no authority by virtue of the warrant to arrest Barraso. The trial court then referred to the factual situation and charged the jury that, as a matter of law, the defendant had no authority to arrest Barraso. It defined "arrest" as meaning "to deprive another of his liberty. That is, to take custody of him."

The defendant contends that the trial court's instructions in this regard were erroneous and that the erroneous instructions created a conclusive presumption that the restraint of the victim was unlawful. Unlawful restraint of the victim is an essential element of the crime of kidnapping. See General Statutes § 53a-91(1) and (2). ⁴ The defendant argues, therefore, that he was deprived of due process of law because the instruction permitted the jury to convict him without finding a necessary element of the crime proved beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 517, 522, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979); In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); Morrisette v. United States, 342 U.S. 246, 275-76, 72 S.Ct. 240, 255-56, 96 L.Ed. 288 (1952). This claim was not raised at trial. Since the record adequately supports a claim that the defendant was deprived of a fundamental constitutional right and a fair trial, however, we will review it. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The common law confers on the surety ⁵ on a bail bond the right to apprehend and deliver his principal in discharge of his bail at any time. Taylor v. Taintor, 83 U.S. [16 Wall.] 366, 371, 21 L.Ed. 287 (1873); Read v. Case, 4 Conn. 166, 170 (1822). This right has been upheld when a bondsman forcibly entered his principal's home in the middle of the night; Read v. Case, supra, 170; when a bondsman pursued his principal beyond state lines; Fitzpatrick v. Williams, 46 F.2d 40, 41 (5th Cir.1931); and when the bondsman used physical force in the act of apprehending his principal. Nicolls v. Ingersoll, 7 Johns. 145 (N.Y.Sup.Ct.1810); see "The Hunters and The Hunted: Rights and Liabilities of Bailbondsmen," 6 Fordham Urb.L.J. 333 (1978).

Bail is considered a continuation of the original imprisonment. In Taylor v. Taintor, a case which arose out of a Connecticut bail bond, the United States Supreme Court said: "When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they may chose to do so, they may seize him and deliver him up in their discharge; and if that can not be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. [Citations omitted.] In [Anonymous, 6 Mod. 231 (1703),] it is said, 'The bail have their principal on a string, and may pull the string whenever they please and render him in their discharge.' " Taylor v. Taintor, supra, 371; Carlson v. Landon, 342 U.S. 524, 547, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Reese v. United States, 76 U.S. [...