State v. Reddick, No. 14336

CourtSupreme Court of Connecticut
Writing for the CourtBerdon; Before PETERS; BORDEN; In this opinion PETERS; BERDON
Citation619 A.2d 453,224 Conn. 445
PartiesSTATE of Connecticut v. Michael C. REDDICK.
Docket NumberNo. 14336
Decision Date26 January 1993

Page 453

619 A.2d 453
224 Conn. 445
STATE of Connecticut
v.
Michael C. REDDICK.
No. 14336.
Supreme Court of Connecticut.
Argued Sept. 22, 1992.
Decided Jan. 26, 1993.

Berdon, J., filed dissenting opinion.

Page 454

[224 Conn. 446] Donald D. Dakers, Sp. Public Defender, for appellant (defendant).

[224 Conn. 447] Rita M. Shair, Asst. State's Atty., with whom were Mary M. Galvin, State's Atty., and, on the brief, Russell L. Case, Law Student Intern, for appellee (state).

Before [224 Conn. 445] PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

[224 Conn. 447] BORDEN, Associate Justice.

The defendant, Michael Reddick, appeals 1 from the judgment of conviction, after a jury trial, of robbery in the second degree in violation of General Statutes § 53a-135, 2 and, following a plea of nolo contendere, of being a persistent dangerous felony offender in violation of General Statutes § 53a-40(a). 3 The defendant claims that the trial court improperly: (1) failed to notify him of the [224 Conn. 448] contents of the second part of the amended information

Page 455

charging him with being a persistent dangerous felony offender; (2) with regard to the charge of robbery in the second degree, failed to instruct the jury that it must unanimously agree beyond a reasonable doubt on the same aggravating factor; and (3) denied the defendant's request to waive his presence at a hearing on his motion to suppress a witness' photographic identification of him. We affirm the judgment.

The jury reasonably could have found the following facts. On January 24, 1990, Edward Singer and the defendant, both black men, entered a branch office of the Bank of Boston on Orange Avenue in West Haven. After stopping at a counter, Singer and the defendant approached two teller windows that were closed. Singer handed a bank employee, William Murray, a slip of paper. Murray informed the men that he was not a teller. Singer and the defendant then approached the teller window of Sheila Carlquist. Brunilda Lopez, the teller supervisor, was standing behind Carlquist. Lopez had been trained to remain calm and to observe carefully any suspicious activity. Lopez observed that Singer and the defendant were whispering to Carlquist, and that the two men were sweating and acting nervously. Lopez later described Singer to investigating officers as 5 feet 8 inches to 6 feet 2 inches tall, and the defendant as approximately 5 feet 4 inches tall and wearing wide rimmed plastic glasses. The defendant stared at Lopez as she observed both men.

Singer displayed a gun and threatened Carlquist. The defendant then demanded the money in the teller's drawer. Carlquist gave the money to the defendant, along with a dye pack set to explode if taken from the bank's premises. 4 Singer and the defendant left the [224 Conn. 449] bank and attempted to flee in a motor vehicle. Lopez saw the dye pack explode, and saw both men escape from the vehicle and flee on foot. Singer was arrested within one hour of the robbery, and subsequently implicated the defendant. Among the evidence recovered at the bank during the police investigation was the slip of paper handed to Murray. The slip of paper had the name "Reddick" printed on its face.

On February 7, 1990, Federal Bureau of Investigation agents located the defendant in a third floor apartment in Hamden. The defendant attempted to avoid arrest by leaping from a window across an alley to the roof of an adjoining building. The defendant was apprehended after a short chase.

I

The defendant first claims that he is entitled to a new trial on the second part of the information, charging him with being a persistent dangerous felony offender, because the clerk failed, in violation of Practice Book § 648, to notify him of the contents of the second part of the information. Practice Book § 648 provides: "Prior to the time the defendant enters a guilty plea or, if the defendant pleads not guilty, prior to the commencement of the trial, the clerk shall notify the defendant, in the absence of the judicial authority, of the contents of the second part of the information. The clerk shall enter on the docket the time and place of the giving of such notification and, where necessary, shall include entry thereof in the judgment file." 5 [224 Conn. 450] We disagree

Page 456

that the clerk's failure entitled the defendant to a new trial.

The record in the present case reveals that the defendant repeatedly received actual notice of the persistent dangerous felony offender charge prior to the trial on the underlying charge. On February 5, 1991, the state notified the court at a pretrial hearing, in the presence of the defendant and his attorney, that the defendant was charged with both robbery in the second degree and with being a persistent dangerous felony offender. The defendant himself also indicated to the court that he was fully aware of the contents of the second part of the information. On February 6, 1991, while addressing the court regarding removal of his court appointed attorney, the defendant demonstrated that he was on notice of the persistent dangerous felony offender charge: "Because of the nature of the charges, the fact that the state is pursuing persistent offender here, I believe I have a right to make sure that counsel is prepared ... the nature of the charges [is] very serious. The state is pursuing persistent offender ... I think that [the state's attorney] has pursued this very seriously and she has been the one who has presented the issue of persistent offender." (Emphasis added.) Finally, on February 20, 1991, after the defendant had moved for a bill of particulars, the state replied that there was a long form information supplemented by a second part of the information charging the defendant with being a persistent dangerous felony offender. The defendant's counsel thereafter[224 Conn. 451] requested a copy of the second part of the information from the court.

Despite the defendant's actual notice of the persistent dangerous felony offender charge prior to trial, he still claims that the clerk's failure to comply completely with the particular notice provisions of Practice Book § 648 entitles him to a new trial. We note, however, that the defendant, having had actual notice of the contents of the second part of the information, did not contest the persistent dangerous felony offender charge. Instead, he pleaded nolo contendere to it. The general rule is that, absent a statutory exception, a plea of guilty or nolo contendere constitutes a waiver of all defects in the prosecution except those involving the canvass of the plea and the court's subject matter jurisdiction. See, e.g., McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Lott v. United States, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961); State v. Madera, 198 Conn. 92, 97, 503 A.2d 136 (1985). This waiver is fatal to the defendant's claim and he therefore is not entitled to a new trial on the second part of the information.

II

The defendant next claims that the trial court improperly failed to instruct the jury that, in order to find robbery in the second degree to have been proven beyond a reasonable doubt, it had to agree unanimously on one of the aggravating factors that distinguishes robbery in the second degree from robbery in the third degree. This claim is without merit.

The following facts are relevant to this claim. In instructing the jury as to the elements of robbery in the second degree, the trial court first read the text of § 53a-135 to the jury. After defining robbery generally, the trial court explained that the state's information alleged both of the aggravating factors, pursuant to [224 Conn. 452] § 53a-135, that could elevate the crime of robbery in the third degree to robbery in the second degree.

The trial court then instructed the jury: "[The n]ext element you must find for robbery in the second degree ... is that, one, he is aided by another person actually present, or, two, in the course of the commission of the crime or immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument. The state claims that it has proven both of these ways of committing robbery in the second degree.... If you find, beyond a

Page 457

reasonable doubt, that a robbery was committed by the defendant, and he was, one, aided by another person actually present, who would be Edward Singer, or, two, in the course of the commission of the crime or immediate flight therefrom he or another who participated in the crime displayed or threatened the use of what he represented by his words or conduct to be a deadly weapon or dangerous instrument, you will return a verdict of guilty of robbery in the second degree." The trial court did not explicitly instruct the jury that it must find unanimously that one of the aggravating factors was proven beyond a reasonable doubt. The trial court, however, did instruct the jury four times that its verdict must be unanimous.

The defendant did not preserve this claim at trial. He contends, however, that he should prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Specifically, the defendant claims that the trial court's failure to give a specific instruction that the jury must unanimously agree that the same aggravating factor had been proven beyond a reasonable doubt violated his sixth amendment right 6 to the unanimous verdict [224 Conn. 453] of a six member jury. 7 See Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979).

As we have previously held, a specific unanimity charge is not constitutionally required in every case in which criminal liability is premised on alternative subsections of a statute. State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991); State v. Jennings, 216 Conn. 647, 662-63, 583 A.2d 915...

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71 practice notes
  • State v. Artis, No. 32048.
    • United States
    • Appellate Court of Connecticut
    • July 10, 2012
    ...an unreliable identification violates a person's rights to due process under both the federal and state constitutions.” State v. Reddick, 224 Conn. 445, 478, 619 A.2d 453 (1993) ( Berdon, J., dissenting). In assessing a claim [47 A.3d 432]on appeal that evidence of both an out-of-court pret......
  • State v. Wooten, No. 14419
    • United States
    • Supreme Court of Connecticut
    • September 7, 1993
    ...identification confrontation is his right to cross-examination...." (Emphasis added; internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 470, 619 A.2d 453 (1993); State v. Tatum, supra, 219 Conn. at 731, 595 A.2d 322; State v. Smith, [227 Conn. 698] Generally, under the appl......
  • State v. Ceballos, (SC 16901)
    • United States
    • Supreme Court of Connecticut
    • October 21, 2003
    ...a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test." (Emphasis added.) State v. Reddick, 224 Conn. 445, 454, 619 A.2d 266 Conn. 420 453 (1993); State v. Dyson, 238 Conn. 784, 793, 680 A.2d 1306 (1996). Indeed, if "the trial court did not sanct......
  • State v. Figueroa, No. 15104
    • United States
    • Supreme Court of Connecticut
    • August 15, 1995
    ...able to rely on it at trial without much, if any, assistance from its successor." (Internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 468, 619 A.2d 453 Thus, evidence regarding the uncharged misconduct, which may be admissible to prove the perpetrator's identity, was irrele......
  • Request a trial to view additional results
71 cases
  • State v. Artis, No. 32048.
    • United States
    • Appellate Court of Connecticut
    • July 10, 2012
    ...an unreliable identification violates a person's rights to due process under both the federal and state constitutions.” State v. Reddick, 224 Conn. 445, 478, 619 A.2d 453 (1993) ( Berdon, J., dissenting). In assessing a claim [47 A.3d 432]on appeal that evidence of both an out-of-court pret......
  • State v. Wooten, No. 14419
    • United States
    • Supreme Court of Connecticut
    • September 7, 1993
    ...identification confrontation is his right to cross-examination...." (Emphasis added; internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 470, 619 A.2d 453 (1993); State v. Tatum, supra, 219 Conn. at 731, 595 A.2d 322; State v. Smith, [227 Conn. 698] Generally, under the appl......
  • State v. Ceballos, (SC 16901)
    • United States
    • Supreme Court of Connecticut
    • October 21, 2003
    ...a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test." (Emphasis added.) State v. Reddick, 224 Conn. 445, 454, 619 A.2d 266 Conn. 420 453 (1993); State v. Dyson, 238 Conn. 784, 793, 680 A.2d 1306 (1996). Indeed, if "the trial court did not sanct......
  • State v. Figueroa, No. 15104
    • United States
    • Supreme Court of Connecticut
    • August 15, 1995
    ...able to rely on it at trial without much, if any, assistance from its successor." (Internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 468, 619 A.2d 453 Thus, evidence regarding the uncharged misconduct, which may be admissible to prove the perpetrator's identity, was irrele......
  • Request a trial to view additional results

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