State v. Payne

• Decision Date: 25 May 1993
• Docket Number: No. 10997,10997
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Freddy PAYNE.

Page 231

625 A.2d 231

31 Conn.App. 370

STATE of Connecticut v. Freddy PAYNE.

No. 10997.

Appellate Court of Connecticut.

Argued April 2, 1993.

Decided May 25, 1993.

Neal Cone, Asst. Public Defender, with whom, on the brief, were G. Douglas Nash, Public Defender, and Carolyn M. Jones, Certified Legal Intern, for appellant (defendant).

Jack W. Fischer, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty. and Elpedio Vitale, Asst. State's Atty., for appellee (State).

Before DALY, EDWARD Y. O'CONNELL and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit burglary in the second degree in violation of General Statutes §§ 53a-49 and 53a-102(a) and conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-48(a) and 53a-102(a). On appeal, he claims that the trial court improperly (1) allowed testimony that the complainants' window was broken by a rock the night before the incident at issue, (2) failed to instruct the jury on criminal trespass in the second degree as a lesser included offense, (3) instructed the jury on intoxication, (4) instructed the jury on reasonable doubt, and (5) instructed the jurors on their duties. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On December 16, 1988, at about 3 a.m., Wesley Smith and his wife were sleeping in the living room of their apartment in the Prospect Garden Apartments [31 Conn.App. 372] at 470 Prospect Street in New Haven. Smith woke up and heard the front storm door opening and the doorbell ringing. Smith arose and looked out his front window to see who was at the door. At the time, no lights were on either inside or outside of the house. Smith saw two males at the door. He did not recognize them, and he asked his wife to call the police, which she did.

From where Smith was at a window, it would have been possible to hear voices at the front door but not discern a conversation. Smith did not hear voices and did not hear any names being called out. After ringing the doorbell repeatedly, the men knocked on the door. After the men stopped knocking, Smith heard them jiggle the doorknob. One of the men then opened the mail slot and reached in with his hand as far as the wrist and moved it back and forth. Smith then heard the front door creak as if someone was leaning on it.

At this point, the police arrived. A few minutes had passed between Smith's first seeing the two men and the arrival of the police.

On December 16, 1988, Frederick Hurley, a New Haven police detective, was working with another police detective, Mel Cartoceti. At about 3 a.m., they were in a car parked at the intersection of Prospect and Canner Streets, approximately 200 yards from 470 Prospect Street. After being informed of a burglary in progress, Hurley and Cartoceti arrived at the scene in about ten seconds.

The detectives saw two males with their backs to the street between the open storm door and the closed front door at 470 Prospect Street. Both detectives exited their car, drew their revolvers and approached the two men. When Hurley and Cartoceti were about fifty feet away from them, the suspects turned around and walked away in different directions. The detectives did not hear anything until the defendant saw Cartoceti and yelled to him, "Yo, Mellie, Mel."

At that point, Cartoceti recognized the defendant and approached him. A patdown search of the defendant revealed a sock rolled up with a latex glove between his inner and outer jackets. Cartoceti also found a knife case in a back pocket of the defendant's pants and the defendant's knife on the ground next to the front stoop at 470 Prospect Street.

The other suspect was apprehended by Hurley. That individual initially gave Hurley a false name but subsequently was identified as Douglas Antrum. A pat-down search of Antrum revealed a screwdriver in a pocket and one half of a plastic gun in his waistband. Hurley found small pry marks around the Smiths' front door jamb near the lock and door handle.

The defendant testified at trial, consistent with his statements to the police detectives immediately after being apprehended, that he had gone out that night in search of his girlfriend, who was supposed to be with a woman known to the defendant as "Pumpkin" at Pumpkin's Shelton Terrace apartment. He claimed to have mistakenly gone to the Smiths' apartment thinking that he was on Shelton Terrace. On the way, he met Antrum and together they went to the Smiths' front door thinking that it was Pumpkin's. Once at the front door, according to the defendant, the two men yelled out for Pumpkin and also yelled for her through the mail slot. The defendant claimed that he had the latex glove with him because he had been fixing a water bed earlier in the evening and had used the glove to protect a cut on his hand. He denied any knowledge of the sock the officers claimed to have found with the glove. Finally, the defendant testified that he had been drinking that evening and that, although he had been intoxicated, it had not affected his memory.

The defendant's first claim pertains to testimony by Wesley Smith that was admitted by the trial court over the defendant's objection. Smith testified that at about 1:30 a.m. on December 15, 1988, the night before the alleged burglary attempt, a rock had been thrown through his living room window. The state claimed that the evidence was admissible to show why the Smiths were sleeping in their living room the following night. ¹ The defendant argued that the prejudicial effect of this evidence outweighed any probative value it might have. After the trial court overruled the objection, the defendant took an exception.

The defendant claims that the trial court should not have permitted Smith to testify regarding the rock damage to his living room window. He argues that the reason the Smiths were sleeping in the living room was not a material fact in issue and that any probative value of the evidence was far outweighed by its prejudicial effect. The prejudice he claims is that the jury might have concluded that the rock throwing incident was an attempted burglary in which the defendant was involved. ² We disagree.

"[A] trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission.... We will not overturn the court's determination of this issue absent an abuse of discretion." (Citation omitted.) State v. Busque, 31 Conn.App. 120, 128-29, 623 A.2d 532 (1993).

The trial court's ruling was well within its discretion. The testimony concerning the rock throwing was relevant because it showed not only why Smith was very close to the front door at the time of the crime, but also that he had a heightened awareness of the sounds coming from just outside his apartment. This testimony foreclosed the jury from resorting to speculation on the question of why the Smiths happened to be present in their downstairs living room at 3 a.m. on December 16 when they normally slept in their bedroom on the second floor. This testimony also assisted the jury in understanding the witness' ability to perceive the events about which he testified. The challenged evidence, then, was admissible because it "tend[ed] to support a relevant fact even in a slight degree...." State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985). We must now consider whether the probative value of the evidence was outweighed by its prejudicial impact. State v. Morowitz, 200 Conn. 440, 445-46, 512 A.2d 175 (1986); State v. Morrill, supra.

The testimony here was far from prejudicial. This case does not involve evidence of the defendant's involvement in other criminal activity; compare State v. Payne, 219 Conn. 93, 98-106, 591 A.2d 1246 (1991); where the trial court's discretion to admit such evidence is limited. State v. Baldwin, 224 Conn. 347, 356, 618 A.2d 513 (1993). There was no suggestion in Smith's testimony that the rock throwing was an attempted burglary. ³ Consequently, the defendant's reliance on Eberhardt v. State, 550 So.2d 102 (Fla.App.1989), rev. denied, 560 So.2d 234 (Fla.1990), is misplaced. There, the victim testified that there had been a burglary at the same premises the night before. In addition, there was no suggestion in Smith's testimony that it was the defendant who had been involved in the rock throwing incident. In argument to the court, outside the presence of the jury, the state specifically disclaimed any "intention to argue in front of the jury that Mr. Payne and Mr. Antrum had anything to do with the incident the night before." The defendant's suggestion of improper influence through innuendo notwithstanding, we conclude that the trial court properly admitted the challenged testimony, which was clearly understood by the jurors to be in the nature of background information to help them understand the circumstances under which Smith made his observations.

The defendant next claims that the trial court improperly refused to grant his request that it instruct the jury on the crime of attempted criminal trespass in the second degree in violation of General Statutes §§ 53a-49 and 53a-108, ⁴ as a lesser included offense of the crime of attempted burglary in the second degree in violation of General Statutes §§ 53a-49 and 53a-102. ⁵ The state contends, inter alia, that the defendant cannot succeed on this claim because he failed to submit an appropriate request to charge. We agree with the state.

To establish entitlement to a charge on a claimed lesser included offense, the defendant must meet the four requirements set forth by our Supreme Court that "(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater...