State v. Rouleau

• Decision Date: 30 June 1987
• Docket Number: No. 12934,12934
• Citation: 528 A.2d 343,204 Conn. 240
• Parties: STATE of Connecticut v. Louis ROULEAU.
• Court: Connecticut Supreme Court

Page 343

528 A.2d 343

204 Conn. 240

STATE of Connecticut v. Louis ROULEAU.

No. 12934.

Supreme Court of Connecticut.

Argued Feb. 6, 1987.

Decided June 30, 1987.

G. Douglas Nash, Asst. Public Defender, with whom, on brief, was Joette Katz, Public Defender, for appellant (defendant).

Ann H. Rubin, Sp. Asst. State's Atty., with whom, on brief, was John Connelly, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and KULAWIZ, JJ.

ARTHUR H. HEALEY, Justice.

After a trial to the jury, the defendant, Louis Rouleau, was found guilty of one count of each of the following crimes: aiding robbery in the first degree in violation of General Statutes §§ 53a-134(a)(2) and 53a-8; ¹ conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-48; ² aiding kidnapping in the first degree with a firearm in violation of General Statutes §§ 53a-92(a) ³ and 53a-8; and conspiracy to commit murder in violation of §§ 53a-54a and 53a-48(a). ⁴

On appeal, the defendant's sole claim is that the trial court erred in its instructions to the jury on the defense of duress. General Statutes § 53a-14. ⁵ Essentially, the defendant claims that the trial court erred in its instruction on this nonaffirmative defense because it did not instruct that the burden of proof was on the state to disprove that defense beyond a reasonable doubt and/or because it stated that the burden of proof on that defense was on the defendant. In addition to claiming plain error, he also maintains that these errors violated his constitutional rights and, alternatively, his statutory rights. We find error in the charge on duress and order a new trial except for the count on which the defendant was convicted of conspiracy to commit robbery, where we deem the error to have been harmless beyond a reasonable doubt.

Initially, we note that the defendant did not submit a request to charge on the applicable burden and standard of proof and did not except in the court's instruction on duress. The state therefore contends that the claimed error is not reviewable either as plain error; see Practice Book § 4185 (formerly § 3063); or under the Evans bypass rule. See State v. Evans 65 Conn. 61, 327 A.2d 576 (1973). The defendant claims review under both. We will review this claim under the Evans rule and, so, need not address the plain error rule. We do so under the second "exceptional circumstance" of Evans because "the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." Id., 70, 327 A.2d 576.

A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). This fundamental constitutional right includes proper jury instructions on the burden of proof on the defense of duress so that the jury may ascertain whether, under all the circumstances, the state has met its burden of proving beyond a reasonable doubt that the crimes charged were not committed under duress. "Duress ... [is a] recognized [defense] to [a] criminal [charge] because [it] ... implicate[s] the volitional aspect of criminality." State v. Pierson, 201 Conn. 211, 217, 514 A.2d 724 (1986); see State v. Miller, supra, 186 Conn. at 660-61, 443 A.2d 906. The state's burden of proof beyond a reasonable doubt encompasses, in an appropriate case, a burden of disproving duress beyond a reasonable doubt. See General Statutes § 53a-12(a); see also State v. Pierson, supra; State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); State v. Miller, supra. We note that the state does not claim that an instruction on duress should not have been given; indeed, the trial judge himself decided that there was evidence that justified such an instruction.

Before focusing on the defendant's specific claims of error, it is helpful to set out certain evidence that was before the jury. About noon on April 13, 1985, Paris Zeller, Richard Atherton and the defendant were riding around Waterbury in Atherton's van. They met Stacey Moss in a parking lot. Moss was upset because her boyfriend, KK, could not get out of jail and she wanted to help him out. Moss asked them to help her get one hundred dollars to get KK out on bond. At the time this request was made, Moss, Moss's Uncle Burt, Atherton, Zeller and the defendant were present. Moss, Atherton, Zeller and the defendant then drove around to see if they could find Danny Edwards or "someone to get some money." After dropping off Moss and Atherton at a Pathmark store, Zeller and the defendant, who was now driving the van, came upon Edwards. They told Edwards that KK was in jail and that they "needed some money to get him out." Edwards had no money. These three then picked up Atherton and Moss. Edwards and Moss left the van for a time; Moss did so in an endeavor to obtain some money in return for performing an act of prostitution. Edwards returned with Robert Perugini, and Moss also reappeared but she had no money. There were now six persons in the van, Atherton, Edwards, Perugini, Moss, Zeller and the defendant, who was then the driver. They talked about robbing a store, about picking up a "faggot" and they finally "decided on picking up a whore and taking her money." All six agreed to do this. No one got out of the van, no one asked to get out and no one was forced to stay in the van. They decided to put up a blanket so that when they picked up the prostitute, she could not see anyone in the back of the van. After they put up the blanket, Zeller, Moss, Perugini, Edwards and the defendant got in the back behind the blanket. Atherton stayed in the front and drove.

It was now approximately 1:45 a.m. on April 14, 1985. The victim, who was a prostitute, left her Waterbury apartment to go to a convenience store to buy some cigarettes. After buying the cigarettes, she began walking toward her house; she had about nineteen dollars on her person. She was approached by a van in which she observed only one person, the male driver, whom she did not know. He offered her a fee to have sex with him. She got into the van and he offered her twenty dollars which she took. She could not see into the back as there "was a curtain or something there." She directed him to a parking lot and when they got there and shortly after she had instituted oral sex, she "had a gun pointed [at her] from the back [of the van]." She saw and felt the gun "because it was right to [her] temple." She was pulled into the back of the van; her eyes were covered by "their hands." Once in the back, a plastic bag was placed over her head ⁶ and she was made to lie on her stomach. The defendant and Edwards held the victim down and searched her for money. As they searched her, they kept telling her, "You're a hooker. [We] know you have more money than this on you." They took her clothes partially off and took her money, including nineteen dollars from her shoe. While the victim was being held down, the two women, Moss and Zeller, moved to the front of the van. Although the victim could only see shadows through the plastic bag, she determined from the voices that there were four men and two women in the van. ⁷ The victim was forced to engage in sexual intercourse five times during which her hands were tied and the van was moving. The gun was still present in the back of the van as "they like had me feeling it and they kept saying, you know, '[i]t's still here.' "

After the two women had joined Atherton in the front of the van, Atherton stopped the van and got in the back. ⁸ Atherton "asked" the defendant to drive. While the defendant was driving the van, he stopped at a store, Moss and Zeller left the van to purchase some soda and then returned. After the sexual assaults, Moss and Zeller, who had been riding in front, told the defendant that they wanted to be dropped off so that they could go home. The defendant dropped off the two women and Edwards in downtown Waterbury. At the time Moss, Zeller and Edwards got out of the van, one of the women said, "You might as well go ahead and kill her. She's going to go to the police." No one else tried to get out of the van at that time.

The defendant drove the van for some time until Atherton told him to stop. When he did so, they were in a secluded wooded area in Thomaston. Atherton and Perugini then took the victim out of the van, leaving the defendant alone in the van. At that time, the plastic bag was still over the victim's head and her hands were still tied. The victim was walked by Atherton and Perugini through some bushes, over some gravel, over railroad tracks into more gravel and then to "clear ground." In the clearing, the bag was removed from her head and Atherton pointed a gun at her. ⁹ As he held the gun on her, Atherton told her that "he didn't want to do it but he had to." The first shot that he fired hit a can opener that she had in her jacket pocket and "just bruised" her chest. He fired again, grazing her finger. During this time, the defendant stayed in the van and waited. He testified that he heard three gunshots, not two, and that "he started the van up" after he heard the first shot.

After the shots had been fired at her, the victim attempted to run into a nearby river but came back out because the water was too deep and she couldn't swim because her hands were still tied. The two men then tried to choke her with some wire but she prevented them from doing so. One of them then struck her on the head with a "boulder," cutting her. They also beat her with a board with nails in it cutting her buttocks. She then picked up a "large stick" and a rock and started chasing the two men. She did not know at that time where the van was. The defendant then saw her chasing after them. The two men got in the van and,...