State v. Roque

• Decision Date: 17 May 1983
• Citation: 460 A.2d 26,190 Conn. 143
• Court: Connecticut Supreme Court
• Parties: , 39 A.L.R.4th 1158 STATE of Connecticut v. Luis ROQUE.

Page 26

460 A.2d 26

190 Conn. 143, 39 A.L.R.4th 1158

STATE of Connecticut v. Luis ROQUE.

Supreme Court of Connecticut.

Argued Jan. 13, 1983.

Decided May 17, 1983.

Paul T. Nowosadko, law student intern, with whom was Michael R. Sheldon, West Hartford, for appellant (defendant).

Donald B. Caldwell, State's Atty., for appellee (state).

Before HEALEY, SHEA, GRILLO, SPONZO and BIELUCH, JJ.

ARTHUR H. HEALEY, Associate Justice.

After a trial to the jury, the defendant was convicted of one count of rioting at a correctional institution in violation of General Statutes § 53a-179b (Rev. to 1977). ¹ This appeal followed.

That part of the information filed by the state which charged the violation of General Statutes § 53a-179b stated as follows: "DONALD B. CALDWELL, State's Attorney for the Judicial District of Tolland, accuses LOUIS [sic] ROQUE of Somers, Connecticut, of RIOTING AT CORRECTIONAL INSTITUTION and charges that at the Town of Somers, in said District, on or about the 17th day of December, 1978, the said LOUIS [sic] ROQUE did incite, connive, aid, abet, assist or take part in a disorder, disturbance, riot or other organized disobedience to the rules and regulations of such institution in violation of Section 53a-179b of the General Statutes."

Some time prior to trial the defendant filed and the court granted his motion for a bill of particulars which sought the following: "A. Place, date and time where the offense allegedly was committed. B. The manner or means by which the offense was allegedly committed giving the specific acts and conduct of the defendant." The state's bill of particulars directed to the first count ² of the information which charged the violation of § 53a-179b was the following:

"A. The defendant committed the crime of Rioting at Correctional Institution on December 17, 1978, at about 11:15 a.m., in the West Mess Hall and adjoining hallway at Connecticut Correctional Institution, Somers, Connecticut.

"B. The defendant committed the crime of Rioting at a Correctional Institution by taking part in a disorder, disturbance or organized disobedience of the rules and regulations of the Institution. An inmate, Harper, commenced a disturbance in the mess hall by refusing to leave the hall when directed, shouting and attacking corrections [sic] officers. The defendant along with other inmates joined the disturbance. The defendant fought with, assaulted, disobeyed and resisted correctional officers."

The defendant filed a request to charge which included a recitation of the entire content of § 53a-179b and in which he requested a charge that the state had to prove that the disorder or disturbance was one that was organized (preplanned) by the participants. After the court's charge to the jury, ³ the only exception taken by the defendant was: "I would except to that portion of the charge in its entirety as relating to Section 53a-179b and also to the Court's decision not to include my request to charge as to that portion of the statute." During their deliberations, the jury requested "a rereading of the definition of 'riot.' Can we have that, please?" The court then reread General Statutes § 53a-179b and instructed them that they would "have to first find that there was indeed a disturbance or disorder ... that you had to find it had been proven ... that this defendant either incited, instigated, organized, connived at, caused, aided, assisted, or took part in any such disorder or disturbance." ⁴ At that time the defendant excepted saying: "I want to take exception to the second charge, the same as the first one, concerning 53a-179b."

On appeal, the defendant claims that the court erred and violated his constitutional rights by instructing the jury that they might find him guilty of § 53a-179b under any one of nine theories of criminal liability set forth in that statute after the state's bill of particulars "precisely delineating ['taking part in'] ... the specific statutory theory of liability upon which it would base its prosecution," the state thus limiting itself to "proving him guilty ... under that specific theory of liability to the exclusion of all others." He claims that this statute is a "separable statute which is violated by any person who associates himself in any [one] of nine discrete, statutorily specified manners with any disorder, disturbance ... [at] a Connecticut Correctional Institution." The state having thus limited itself to the "taking part in" manner, the defendant goes on to argue that the challenged instruction permitted the jury to find him guilty on one or more of the statutory theories of liability not contained in the bill of particulars. It follows, he claims, that because a defendant cannot be constitutionally convicted on the basis of "an uncharged statutory theory of liability," there is a reasonable possibility that the jury may have been misled by the court's instructions on the basis of "just such an uncharged statutory theory of liability [and] his conviction ... must be reversed."

The defendant's brief concedes that the constitutional claims which he now makes were not properly preserved in the trial court for appellate review. He, however, argues for such review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), maintaining that the record adequately supports his claim of deprivation of fundamental "constitutional rights and a fair trial."

Initially, the state argues that this court should deny review of the errors asserted by the defendant on appeal. In so doing, it points out that these claims were not raised by him in the trial court, and that the broad language of his exception to the charge on § 53a-179b could hardly have alerted the trial court to the claims of error made for the first time on appeal. It, therefore, claims that such errors cannot be reviewed under the doctrine of State v. Evans, supra.

In regard to the merits of the defendant's claim, the state, after reviewing the purpose of a bill of particulars, argues that it was responsive to the motion not only by setting forth the place, date and time where the offense took place but also in "stating that the defendant took part in the disorder, disturbance or organized disobedience and then stating some of the specific acts and conduct of the defendant." The state maintains that if the defendant wanted to limit the state further, he could have done so by a request in the original motion for the bill or a supplemental bill if he was not satisfied with the original bill of particulars. In addition, it claims that the bill as filed "adequately informed" the defendant of the crime charged and that "clearly" he was not subjected to "prejudicial surprise" at the trial. It points out that the record discloses no indication of surprise by the defendant as to the evidence offered at the trial by the state. It also notes that the only exception to the court's instructions addressed the state's obligation to prove that the disturbance or disorder had to be organized. Under the circumstances, including the motion for and the bill of particulars itself, the state argues that the court could not possibly have misled the jury by its instructions which were correct.

Concededly, the defendant did not raise below the claims he now asks us to review under Evans. Because, however, the claims he now raises generate issues of constitutional dimension, we find that they come within one of the "exceptional circumstances" permitting our review under Evans. We refer to that circumstance spelled out in Evans which allows review where the record, as here, is sufficiently complete to consider the claims on the merits and where the claims involve a fundamental constitutional right. State v. Evans, supra, 70, 327 A.2d 576; see State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980) cert. denied, 450 U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981).

Central to the defendant's arguments on appeal is that General Statutes § 53a-179b is a "separable statute which is violated by any person who associates himself in any [one] of nine discrete, statutorily specified manners with any disorder, disturbance, strike or riot ... or ... other organized disobedience to the rules and regulations of a Connecticut Correctional Institution." These "nine discrete, statutorily specified manners" in this "separable statute" are, he argues, the nine verbs: "incites, instigates organizes, connives at, causes, aids, abets, assists or takes part in ...."

The use of nine verbs, in what the defendant calls the "moving or proscriptive clause" of the statute with the word "or" before "takes part in," does show, he claims, with "substantial certainty" that the legislature intended the parts of the statute to be separate and not cumulative. Cf. Sestito v. Groton, 178 Conn. 520, 525, 423 A.2d 165 (1979). We do not agree.

Certain general rules of statutory construction should be set out here. "It is true that in the interpretation of statutes, the intent of the legislature is to be found not in what it meant to say, but in what it did say." Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). A statute should be construed so that no word in it is treated as superfluous or insignificant. Kulis v. Moll, 172 Conn. 104, 111, 374 A.2d 133 (1976). "Insofar as it is possible, the entire enactment is to be harmonized, each part made operative." State v. Grant, supra. As a general principle, words used in statutes "shall be construed according to the commonly approved usage of the language." General Statutes § 1-1(a); see Rosnick v. Aetna Casualty & Surety Co., 172 Conn. 416, 422, 374 A.2d 1076 (1977). "In construing a statute, common sense must be used, and courts will assume that the legislature intended to accomplish a reasonable and rational result." Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). "A statute is not to be interpreted to...