State v. Rodgers

• Decision Date: 17 December 1985
• Citation: 198 Conn. 53,502 A.2d 360
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bruce E. RODGERS.

Page 360

502 A.2d 360

198 Conn. 53

STATE of Connecticut v. Bruce E. RODGERS.

Supreme Court of Connecticut.

Argued Oct. 2, 1985.

Decided Dec. 17, 1985.

John J. Kindl, Sp. Public Defender, for appellant (defendant).

Corinne L. Klatt, Deputy Asst. State's Atty., with whom were Peter D. Markle Asst. State's Atty., and, on brief, John A. Connelly, State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and KLINE, JJ.

DANNEHY, Associate Justice.

A jury found the defendant guilty of sexual assault in the first degree; General Statutes § 53a-70(a); and of criminal attempt to commit murder. General Statutes §§ 53a-54a(a) and 53a-49(a). He claims on appeal that the trial court erred: (1) in instructing the jury on the issue of insanity when no instruction was requested and no evidence of insanity was presented; (2) in instructing the jury on circumstantial evidence; (3) in instructing the jury on sexual assault in the first degree when the uncontroverted evidence revealed that the victim was unconscious when penetration occurred; (4) in instructing the jury that under the evidence presented it could find the defendant possessed the requisite intent to commit both sexual assault and murder; (5) in denying his motion for severance and his motions for judgment of acquittal and for a new trial. We agree with the defendant's first and second claims and, accordingly, vacate the judgment and remand for a new trial. Our disposition of this case makes it necessary to consider only those claims and other matters which could possibly arise on a subsequent retrial of the case.

The defendant did not take the witness stand in his own behalf or offer any direct evidence at trial. The victim testified that on the night of August 14, 1980, she had been working at a stag party. When the party ended, she accompanied her employer and his wife to a local bar. There she met the defendant. They talked and consumed several beers. After about an hour, the victim and the defendant left on the defendant's motorcycle for a second bar where they tarried until closing time. Shortly after they exited the second bar, it began to rain. They then proceeded to the defendant's house in order to get his car.

The victim testified that while riding in the defendant's car she fell asleep. She awoke to find the defendant with his hands around her throat, choking her. The victim testified that during the time the defendant was choking her, "[h]e was asking me where my friends were. Where are they now? What are they going to do and how are they going to help me." As to the actions of the defendant, she stated, "[h]e was squeezing [my neck], squeezing it to the point where I couldn't talk or breathe anymore. Then I blacked out." When the victim regained consciousness, she found herself on a pile of rocks on the side of the road, with her shoes, underpants and purse scattered nearby. Her rectum was very sore. On cross-examination, the victim reasserted that she had no pain in her rectum prior to being rendered unconscious and that she was positive that the injury was not caused by any person other than the defendant.

Several witnesses corroborated the victim's testimony that she had been with the defendant on the evening of August 14, 1980, and that they had left the second bar together. An examination of the victim's dress and underpants, which had been washed prior to the incident, revealed the presence of seminal stains. Further testimony established that the victim had sustained permanent injury to her third vertebra, explained in medical testimony as a broken neck.

We address first the defendant's claim that the trial court committed reversible error by instructing the jury on the issue of insanity. At trial, the defendant did not raise the defense of insanity, and the record demonstrates that the state presented no evidence that placed the defendant's sanity in issue for resolution by the jury. Indeed, the state, along with the defendant, excepted to this portion of the trial court's charge.

The trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence. State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972); see State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 (1975). The test usually applied in determining whether there is error in a charge is that the charge must be correct in law, adapted to the issues and sufficent for the guidance of the jury. State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). If the charge meets this test it will ordinarily be sustained though not in all respects exhaustive, perfect, or technically accurate. Although this case was tried before the 1983 amendments to General Statutes § 53a-13 made the defense of insanity an affirmative defense, our case law was nonetheless well settled that the issue of insanity is not properly raised until "substantial evidence" tending to prove insanity has come into the case. State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978); State v. Davis, 158 Conn. 341, 355-56, 260 A.2d 587 (1969); State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585 (1947). In this case the defendant would not have been entitled to an instruction on the issue of insanity because the question of his sanity never came into the case. For the same reason, the trial court erred by submitting that issue, sua sponte, to the jury. Cf. State v. Young, 191 Conn. 636, 648-49, 469 A.2d 1189 (1983). We do not consider the state's claim that this error was harmless because it is unnecessary in view of the result reached on the defendant's second claim of error.

The defendant next claims that the trial court erred in its instructions to the jury regarding circumstantial evidence. The defendant duly excepted to the following italicized portions of the trial court's charge: "Now, circumstantial evidence. Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of the law are satisfied. One, that the fact from which you are asked to draw the inference has itself been proved beyond reasonable doubt. Two, that the inference that has to be drawn is not only logical and reasonable but is strong enough so that you can find that it is more probable that the fact to be inferred is true." (Emphasis added.) The defendant claims that the requisite standard of proof beyond a reasonable doubt was impermissibly diluted by the trial court's instruction that an inference may be drawn provided "that it is more probable that the fact to be inferred is true." We agree.

Circumstantial evidence is evidence offered to prove a certain fact from which the jury is asked to infer, and so to find, the existence of another fact in issue. The jury must initially find that the state has proved the basic fact, from which the jury is asked to draw the inference, beyond a reasonable doubt. If and only if the jury finds the basic fact to have been proved beyond a reasonable doubt may it go on to consider the inference. The inference drawn must be reasonable and logical, and not the result of speculation or conjecture. State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980). Further, the jury must be satisfied that the fact to be inferred has been proved beyond a reasonable doubt. The state argues that " '[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.' " State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); see State v. Martin, 195 Conn. 166, 173, 487 A.2d 177 (1985). While this is unquestionably true, it is not meant to imply that the jury may find the existence of inferred facts by less than proof beyond a reasonable doubt. The law makes no distinction as to the probative effect of direct and circumstantial evidence. State v. Englehart 58 Conn. 117, 119, 256 A.2d 231 (1969); State v. Reid, 154 Conn. 37, 40, 221 A.2d 258 (1966). By the same token, the standard of proof as to inferred facts is no less than that applied to basic facts. ¹

Ordinarily, for a determination of whether the jury has been misled, a charge is to be read as a whole, and detached clauses are not to be considered by themselves but in connection with the whole. State v. Marra, 195 Conn. 421, 440-41, 489 A.2d 350 (1985). We cannot bring the case within the purview of this rule. Much of the evidence produced by the state was circumstantial evidence, especially that bearing on the issue of criminal intent as it related to the crimes charged in the substitute information. The instruction challenged is contained in that portion of the charge dealing with the general principles of law applicable in a criminal case, ² when the trial judge was engaged in defining to the jury the important subject of burden of proof. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). The present case particularly called for a correct instruction on the meaning and utilization of circumstantial evidence in a criminal case. There exists such a contradiction between the erroneous instruction and the admixture of correct doctrine that as a whole it cannot be said that the incorrect statement did not influence the jury.

A final argument raised by the state also merits consideration. We have consistently rejected the claim "that when any circumstance offered in evidence is susceptible to two inferences, one of which is in favor of guilt and the other of innocence, the circumstance...