State v. Rossier

• Decision Date: 30 May 1978
• Citation: 175 Conn. 204,397 A.2d 110
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John ROSSIER. STATE of Connecticut v. Gerald ROSSIER.

Page 110

397 A.2d 110

175 Conn. 204

STATE of Connecticut v. John ROSSIER.

STATE of Connecticut v. Gerald ROSSIER.

Supreme Court of Connecticut.

Argued Dec. 15, 1977.

Decided May 30, 1978.

Herbert Watstein, Bristol, with whom, on the brief, was Julius Watstein, Bristol, for appellants (defendants).

Richard F. Banbury, Chief Asst. State's Atty., with whom, on the brief were George D. Stoughton, State's Atty., and Richard E. Maloney, Asst. State's Atty., for appellee (state).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

SPEZIALE, Associate Justice.

The defendants, John Rossier (John) and Gerald Rossier (Gerald), were each charged in two-count informations with assault in the first degree, General Statutes § 53a-59(a)(3), ¹ and with threatening, General Statutes § 53a-62(a)(1). ² After a joint trial to a jury, each defendant was found guilty as charged and judgment was rendered on the verdict. The cases have been joined for the purpose of the defendants' appeals from those judgments. Practice Book § 606.

The incident which gave rise to the charges against John and Gerald occurred on September 2, 1975. The two men, who were admittedly intoxicated, were driving on Farmington Avenue in Bristol. They stopped for a red light and the vehicle operated by the complainant, Richard Zakas, stopped next to them. There followed an exchange of obscenities between the occupants of the two vehicles. This was repeated at the next intersection. Zakas then drove off, proceeding to a sports shop operated by an acquaintance, Richard J. Denney. He entered the shop, and John and Gerald entered shortly thereafter. Zakas was grabbed and beaten and admonished to refrain from the use of obscene gestures. There was testimony that Denney was told: "If you call the police we will kill you."

Later that evening, Zakas received out-patient treatment in the Bristol Hospital emergency room. The hospital records indicate that his x-rays were normal and his coordination and motor and sensory systems were intact. The diagnosis was multiple contusions and a sprain of the right ankle, for which he was given an ace bandage. He was discharged and referred to a Dr. Bagdasarian. Zakas subsequently sought further medical treatment from Dr. Russell S. Bower, a neurosurgeon, whom he first consulted on October 27, 1975, almost two months after the altercation. It was Dr. Bower's opinion that Zakas was suffering from an emotional problem resulting from the September assault. He referred Zakas to a psychiatrist, Dr. Jorge Leicach, who saw Zakas in February, 1976, and diagnosed his condition as "post-trauma reaction." At the trial, Dr. Bagdasarian was not called as a witness; the state did, however, introduce the records from Bristol Hospital and called both Dr. Bower and Dr. Leicach as witnesses.

Although the defendants have raised numerous claims of error, in view of our disposition of the case it is not necessary to review all of them. We first address the defendants' claim that the trial court erred in denying their motions to grant judgment n. o. v. on the assault charges. The ground for the motions was that the state failed to sustain its burden of proving the complainant suffered "serious physical injury" as a result of the assault. We agree.

General Statutes § 53a-3(4) defines "Serious physical injury" as " physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ." On the other hand, "physical injury," is defined in General Statutes § 53a-3(3) simply as "impairment of physical condition or pain." Although it may often be difficult to distinguish between the two, such a distinction must be drawn; a person can be found guilty of assault in the first degree under General Statutes § 53a-59(3) only if he "causes Serious physical injury to another person." (Emphasis added.)

Whether the physical injury sustained by Zakas was serious was a question of fact for the jury, assuming sufficient evidence had been introduced. Our task in reviewing the sufficiency of the evidence to support a jury verdict is to construe the evidence as favorably as possible with a view toward sustaining the verdict, and then to determine whether, based on such evidence, a jury could reasonably have reached its conclusion. State v. Jeustiniano, 172 Conn. 275, 281-82, 374 A.2d 209 (1977). In the case before us, the evidence of physical injury which consisted primarily of testimony relating to emotional trauma precipitated by the incident was simply not sufficient to support the jury's implicit conclusion that the physical injury sustained by Zakas was "serious" under the statutory definition. Compare State v. Robinson, 174 Conn. 604, 392 A.2d 475 (1978); State v. Sawicki, 173 Conn, 389. 395, 377 A.2d 1103 (1977); State v. Jeustiniano,supra. Consequently, it was error for the court to deny the defendants' motions to grant judgment n. o. v. on the charges of assault in the first degree.

The next claim of error is directed to the court's charge on the insanity defense raised by John. The state was notified prior to the trial that John intended to rely on a defense of insanity. ³ At trial, evidence was introduced that John had begun psychiatric treatment at the age of eight, and that, as an adolescent, he had received further psychiatric treatment at Children's Village, where he was a resident for three to four years. Dr. Montgomery Winship, a psychiatrist who had treated John at Children's Village, was produced by the defense as an expert witness. He testified that, in his opinion, as a result of mental disease or defect John had no capacity to conform his conduct to the requirements of law and lacked substantial capacity to appreciate the wrongfulness of his conduct. The court charged the jury regarding John's defense of insanity, but it did not instruct them that the state had the burden of proving John sane beyond a reasonable doubt.

"The state has a right, in the first instance, to rely on the presumption that the defendant was sane at the time of the offenses alleged in the . . . (information), and thereupon it becomes the privilege of the accused to offer such evidence as he desires upon the subject of his mental condition. As soon as substantial evidence tending to prove insanity comes into the case, the presumption loses all operative effect. The state may then rebut this evidence if it desires or submit the issue to the court upon the evidence offered. In either case, the issue having been raised, the burden rests upon the state, as it does in all other essential elements in the case, to prove beyond a reasonable doubt that the accused was legally sane and responsible at the time the offenses were committed. State v. Conte, 157 Conn. 209, 212, 251 A.2d 81, cert. denied, 396 U.S. 964, 90 S.Ct. 439, 24 L.Ed.2d 428; State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585; State v. Joseph, 96 Conn. 637, 639, 115 A. 85." State v. Davis, 158 Conn. 341, 355, 260 A.2d 587, 594 (1969).

Whether a...