State v. Peruta

Decision Date12 June 1991
Docket NumberNo. 9060,9060
Citation591 A.2d 140,24 Conn.App. 598
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Edward A. PERUTA.

C. Michael Budlong, with whom, were Steven R. Dembo and, on the brief, Terence S. Ward and Kathleen A. Murrett, Hartford, for appellant (defendant).

Jack W. Fischer, Deputy Asst. State's Atty., with whom, on the brief, were John T. Redway, state's attorney, and Philip Scarpellino, Assistant State's Atty., for appellee (State).

Before DUPONT, C.J., and LANDAU and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a. 1 The defendant claims that (1) the trial court improperly instructed the jury on the element of intent, (2) the trial court improperly denied the defendant's request for a continuance, (3) the jury rendered a verdict that was contrary to law, (4) the trial court improperly failed to charge the jury on the effects of General Statutes §§ 7-313b and 7-313e, (5) the prosecutor's closing remarks were prejudicial, and (6) the trial court improperly allowed a surprise witness to testify. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. During peak morning traffic hours on October 23, 1989, the Cromwell police were called to the scene of a fatal automobile accident at the intersection of Route 72, Industrial Park Road and the southbound ramp of Interstate 91. Officer Kevin Vandersloot, the first officer to arrive at the scene, gave medical attention to the accident victims until additional emergency personnel arrived.

When Lieutenant Anthony Salvatore arrived a few minutes later, an ambulance, police vehicles and volunteer fire personnel were at the scene. One of the accident victims was on the ground receiving CPR and Salvatore was informed that the Life Star helicopter was en route to transport this victim to a hospital. The vehicles that had been involved in the accident were in the middle of the intersection and traffic was nearly at a standstill.

Salvatore, who was treating the area as a major crime scene, began to attempt to maintain some limited traffic flow so he could clear a portion of the road to establish a landing zone for the Life Star helicopter. Salvatore was also concerned that the accident area be kept secure so his officers could gather all necessary evidence from the scene. To accomplish the latter, it was essential that all unnecessary personnel and onlookers be kept from the immediate vicinity of the accident. To assist in controlling traffic and to aid in the investigation, Salvatore recalled two officers from the midnight shift and asked for assistance from the Middletown and state police departments. Salvatore also called the news media and requested a broadcast to notify motorists to avoid the area.

The defendant, who is the chief photographer for American News and Information Services, arrived shortly after Salvatore. When Salvatore noticed that the defendant was videotaping from the center of the westbound traffic lane, he asked the defendant to move to either shoulder of the roadway. The defendant and Salvatore exchanged words for four or five minutes before the defendant finally moved to the westbound shoulder of the road.

A few minutes later, Salvatore noticed that Vandersloot, the main investigator, was involved in a confrontation with the defendant, who was now videotaping from the narrow space between Vandersloot's car and Salvatore's car, in the immediate vicinity of the accident. Salvatore approached the men, relieved Vandersloot, and asked the defendant to stay out of the area, telling him that he would be arrested if he did not comply with that request. The defendant refused to move, insisted that the chief of police had given him permission to be where he was and told Salvatore that he had a constitutional right to be there and asserted that Salvatore had no authority to tell him to leave. At this point, Salvatore ordered Detective Ronald Cornell, who had just arrived at the scene, to arrest the defendant.

I

The defendant first claims that the trial court's charge was constitutionally infirm because (1) the jury was not instructed that intent was an element of the crime, (2) the court's comments on intent were ambiguous, and (3) there was no general instruction on intent that would have cured the first two infirmities. The defendant failed to raise this claim at trial by objecting to the jury instructions that were given, or by filing an appropriate request to charge. Practice Book § 852. He now seeks appellate review under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Our Supreme Court has held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) State v. Golding, supra. In this case, we will assume a constitutional violation, 2 and then engage in a harmless error analysis under the fourth Golding prong, because a defendant cannot prevail if the state can demonstrate that any error was harmless beyond a reasonable doubt. State v. Dyson, 217 Conn. 498, 505-506, 586 A.2d 610 (1991).

In its general instructions to the jury, the trial court stated: "There are two essential elements of the crime of interfering with an officer: (1) that the defendant has obstructed, resisted, hindered, or endangered a police officer, and (2) that the conduct of the defendant occurred while the police officer was in the performance of his duties.... Now, from the evidence you've heard, you should consider whether the defendant obstructed, resisted, hindered a peace officer. In addition, you must then consider whether the defendant intended to interfere with the performance of the officer's duty. Accidental or inadvertent interference is not enough. You should consider the defendant's intention whether the defendant's intention was to get a better view to permit him to videotape the incident and whether he was far enough away so as to not disturb the evidence, and whether, from all the evidence, it was his intent to hinder, obstruct, or resist a peace officer in the performance of his duties. The purpose of the statute, which had its origin in the common law, is to enforce orderly behavior in the important mission of preserving the peace, and any act that is intended to thwart the purpose is violative of the statute. The defendant, however, must have acted with the intent to interfere with the performance of the officer's duties." (Emphasis added.)

"It is, of course, constitutionally axiomatic that the jury be instructed on the essential elements of the crime charged." State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). When reviewing a claim involving jury instructions that implicate a defendant's constitutional right, " '[t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled.' State v. Sinclair, [197 Conn. 574, 584, 500 A.2d 539 (1985) ]." State v. Townsend, 206 Conn. 621, 626, 539 A.2d 114 (1988).

Before the state can obtain a conviction for interference with an officer, one of the essential elements it must prove beyond a reasonable doubt is that the defendant's interference was intentional. State v. Flynn, 14 Conn.App. 10, 18, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 217 (1988). "A person acts 'intentionally' with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such a result or to engage in such conduct...." General Statutes § 53a-3(11).

In the present case, both parties have directed our attention to State v. Wilson, 17 Conn.App. 104, 550 A.2d 643, cert. denied, 210 Conn. 803, 553 A.2d 616 (1988). In that case, the defendant was charged with the same crime and we concluded that the jury charge on intent was not constitutionally infirm. The state claims that the charge in the present case was nearly identical to that given in Wilson. The defendant, on the other hand, contends that although portions of the charge in this case are identical to that given in Wilson, this charge contained ambiguous remarks that could have misled the jury and included no general instructions on intent.

In the past, this court has ruled favorably on jury instructions on the charge of interfering with an officer only when the court has specified that intent is an essential element of the crime, or when it has given the definition of general intent as found in General Statutes § 53a-3(11); see State v. Wilson, supra; see also State v. Moore, 23 Conn.App. 479, 482-83, 581 A.2d 1071 (1990). In the present case, the court neither instructed the jury that intent is an essential element of the crime of interfering with an officer, nor informed it of the statutory definition of intent.

To require reversal, an error in the court's charge to the jury must be harmful to the appellant. State v. Concaugh, 170 Conn. 95, 100, 365 A.2d 395 (1976). Despite the deficiency of the instructions in the present case, we conclude that any error in the court's charge was...

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