State v. Payne

• Decision Date: 15 September 1987
• Docket Number: No. 4876,4876
• Citation: 530 A.2d 1110,12 Conn.App. 408
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Frederick PAYNE.

Page 1110

530 A.2d 1110

12 Conn.App. 408

STATE of Connecticut v. Frederick PAYNE.

No. 4876.

Appellate Court of Connecticut.

Argued June 11, 1987.

Decided Sept. 15, 1987.

John F. Kavanewsky, Jr., for appellant (defendant).

Robert J. O'Brien, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and Margot Rubin and William K. Lietzau, Legal Interns, for appellee (State).

Before BORDEN, DALY and BIELUCH, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of larceny in the second degree in violation of General Statutes (Rev. to 1981) §§ 53a-119(8) and 53a-123(a)(1). ¹ The sole issue raised on this appeal is whether the trial court erred by failing to instruct the jury on each essential element of the crime with which the defendant was charged. We find error.

The defendant was charged by an information which stated in pertinent part as follows: "On or about the 7th day of April, 1981, between 12:00 p.m. and 1:00 p.m. the said FREDDY PAYNE was in possession of property, to wit: a Kawasaki motorcycle stolen from 320 Alden Avenue on April 6, 1981, knowing that it had probably been stolen or believing that it had probably been stolen, in violation of Section 53a-123(a)(1) of the Connecticut General Statutes."

The evidence supported a finding that sometime between 6 p.m. on April 6, 1981, and 8:30 a.m. on April 7, 1981, an orange-red Kawasaki motorcycle belonging to James Thibault was taken from its parked position in front of his residence in New Haven. At about noon on April 7, 1981, Detective John Sirocco of the Hamden police department observed two black men aboard a motorcycle. When he began to pursue it in order to view the registration number, it took off at a high rate of speed. He continued pursuit, and during the chase the hat of the passenger blew off and was later retrieved by another officer. It was determined to contain a tag bearing the name of Douglas Antrum. Sirocco soon lost sight of the motorcycle in the Dixwell Avenue and Orchard Street vicinity of New Haven. Meanwhile, Detective William White of the New Haven police department, who had been advised to look out for a motorcycle with two black males aboard, proceeded to the area of Dickerman Street in New Haven. When he arrived, he found behind a house a motorcycle which fit the description of the one Sirocco had chased. A concerned citizen advised White that he had seen two black males jump off the motorcycle and run to the second floor of a house at 45 Dickerman Street. White went to 45 Dickerman Street and discovered the defendant and Antrum on the third floor, and placed them under arrest. Shortly thereafter, Sirocco arrived on the scene and identified the defendant and Antrum as the two he had seen on the motorcycle. Additionally, he identified the motorcycle as the one on which he had earlier seen them. Moreover, latent fingerprints removed from the motorcycle were identified as belonging to the defendant. Thibault identified the motorcycle as the one that was taken from his house.

The defendant presented evidence that he had been at his girlfriend's apartment at 45 Dickerman Street since the evening of April 6 and until the time the police arrived. Antrum testified on the defendant's behalf and stated that he had been a passenger on the motorcycle in question which was driven not by the defendant, but by a person known as Dezzel. Antrum further testified that he and Dezzel abandoned the motorcycle on Dickerman Street, and that he proceeded to the defendant's girlfriend's apartment where he and the defendant were later arrested.

The trial court instructed the jury that "[a] person is guilty of larceny in the second degree when the property consists of a motor vehicle. A motorcycle is considered a motor vehicle under the statute." ² Thereafter, the court charged the jury on the general definition of larceny under General Statutes § 53a-119, see footnote 1, supra; and defined various terms including "property ," "owner," "deprive," "appropriate," "intent," "wrongful," "withhold." The court's final summary to the jury with regard to the larceny charge was as follows: "Thus, to find the defendant guilty of larceny in the second degree, the state must prove that the property consisted of a motor vehicle; secondly, the state must prove that the defendant had the intent to deprive the owner of the motor vehicle permanently or he intended to appropriate that motor vehicle to himself or a third person on a permanent basis who was not the owner; thirdly, the state must prove beyond a reasonable doubt that the defendant did in fact wrongfully take, obtain or withhold such motor vehicle from the rightful owner."

The defendant claims that the information charged him with larceny by receiving stolen property in violation of General Statutes (Rev. to 1981) § 53a-119(8) ³ and that the trial court erred by failing to instruct the jury on the essential elements of that statute. We view this as a claim that the defendant was denied his right not to be convicted except upon proof beyond a reasonable doubt as to each element of the crime charged, under the due process clause of the federal constitution. U.S. Const., amend. XIV; see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Vessichio, 197 Conn. 644, 500 A.2d 1311 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). The defendant did not raise this claim at trial, and seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The defendant's claim clearly implicates a fundamental constitutional right adequately supported by the record, and is reviewable. State v. Vessichio, supra, 197 Conn. at 648-49, 500 A.2d 1311; State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978).

The information filed by the state charged the defendant with larceny by receiving, even though it did not specifically enumerate General Statutes (Rev. to 1981) § 53a-119(8). The language in the information was virtually identical to the language contained in the statute. The comments to § 53a-119 point out that it contains both a broad definition of larceny and an enumeration of ten specific ways of committing the offense, including larceny by receiving. Moreover, the comments state that "the receiver is treated, not as a principal to the theft itself, but as a separate offender. Thus, he must be charged as such." Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (West), p. 39. In this case, by adopting the language of subsection (8) for use in the information, it must be assumed that the state intended to charge the defendant as a receiver.

Having elected to charge the defendant as a receiver, the state was required to present proof on the following elements: (1) the receipt or retention by the defendant of a motorcycle; (2) knowing that it has probably been stolen or believing that it has probably been stolen; and (3) that the property is not received or retained for the purpose of restoring it to its owner. General Statutes § 53a-119(8). See D. Borden & L. Orland, Connecticut Criminal Jury Instructions, § 13.2; see generally, State v. Anonymous (83-FG), 190 Conn. 715, 463 A.2d 533 (1983). Our review of the jury charge leads us to conclude that the trial court entirely failed to instruct the jury on these essential elements.

"In a criminal case, the state must prove, and the trial court must instruct the jury on, each essential element of the crime charged. See Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319, [2324] 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881, [1889] 44 L.Ed.2d 508 (1975); In re Winship, [supra, 397 U.S. at 364, 90 S.Ct. at 1072]; see also Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, [1038] 89 L.Ed. 1495 (1945); State v. Griffin, [supra, 175 Conn. at 162-63, 397 A.2d 89]. A trial court's failure to instruct on any of these elements warrants reversal regardless of whether the defendant objected at trial. See State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982)." State v. Harman, 198 Conn. 124, 133-34, 502 A.2d 381 (1985). "It cannot be considered harmless error for a jury 'to find an accused guilty without even knowing what are the essential elements of the crimes charged.' State v. Griffin, supra, [175 Conn. at] 162-63 .... Put another way, the failure to instruct a jury on an essential element of a crime charged is error because it deprives the defendant of the right 'to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.' United States v. Natale 26 F.2d 1160, 1167 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976), citing United States v. Fields, 466 F.2d 119, 121 (2d Cir.1972). Of course, any such error is not cured just because an appellate court is satisfied after the fact of conviction that sufficient evidence was before the jury so that it would or could have found that the state proved the missing element had the jury been properly instructed. After all, 'when [the defendant] exercised his constitutional right to a jury, he put the [state] to the burden of proving the elements of the crimes charged to a jury's satisfaction, not to ours....' " State v. Gabriel, 192 Conn. 405, 414, 473 A.2d 300 (1984).

It is clear that the trial court erred by failing to instruct the jury on all the essential elements of the crime charged. It is beyond peradventure that it was reasonably possible that the jury was misled by the court's instructions. This is because the jury was not provided with the pertinent principles of substantive law to apply to the facts of the case and, therefore, could not have found each essential element proven beyond a reasonable doubt. State v. Griffin, supra, 175 Conn. at 163, 397 A.2d 89. This case...