State v. Rutan

CourtSupreme Court of Connecticut
Writing for the CourtPETERS
Citation479 A.2d 1209,194 Conn. 438
Decision Date04 September 1984
PartiesSTATE of Connecticut v. Ronald A. RUTAN.

Page 1209

479 A.2d 1209
194 Conn. 438
STATE of Connecticut
v.
Ronald A. RUTAN.
Supreme Court of Connecticut.
Argued June 12, 1984.
Decided Sept. 4, 1984.

Page 1210

Joseph Dimyan, Danbury, for appellant (defendant).

Andrew Wittstein, Asst. State's Atty., with whom, on the brief, were Dennis A. Santore, State's Atty., and Carl J. Schuman, Asst. State's Atty., for appellee (state).

Before PETERS, PARSKEY, SHEA, GRILLO and DALY, JJ.

[194 Conn. 439] PETERS, Associate Justice.

The principal issue presented by this appeal is whether the state presented sufficient evidence to support the defendant's conviction of burglary and attempted larceny. The defendant, Ronald A. Rutan, was charged by information with burglary in the third degree, in violation of General Statutes § 53a-103, 1 and with criminal attempt to commit larceny in the second degree, in violation of General Statutes § 53a-123. 2 The jury found the defendant guilty on both counts and the trial court rendered judgment in accordance with the jury verdict. The defendant appeals from the judgment of conviction.

The defendant raises three issues on appeal. He claims that the trial court erred (1) in denying his motion for judgment of acquittal at the close of the state's case; (2) in admitting evidence procured by dog tracking without a proper foundation; and (3) in failing to charge the jury that they could consider the dog tracking evidence only for purposes of corroboration. We find no error.

I

The defendant's first claim of error challenges only the sufficiency of the evidence adduced by the state in its case in chief. Although the defendant raised his claim of insufficient evidence on three separate occasions in the trial court--at the close of the state's case, at the [194 Conn. 440] close of all the evidence and after the jury had returned its verdict of guilty--he has appealed only from the trial court's denial of his first motion for acquittal. At oral argument the defendant expressly waived any objection to the sufficiency of all the evidence.

Before we can reach the merits of the defendant's challenge to the sufficiency of the state's case, we must determine whether such a claim is reviewable at all, in light of the defendant's introduction of evidence in his own behalf and his concession that the evidence as a whole was sufficient to support his conviction. The defendant urges us to reconsider the waiver rule which forecloses appellate review of the sufficiency of the state's case whenever the defendant has elected to introduce evidence of his own. State v. Brown, 172 Conn. 531, 532-33, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S.Ct. 153, 54 L.Ed.2d 114 (1977); State v. L'Heureux, 166 Conn. 312, 324, 348 A.2d 578 (1974); State v. Boucher, 119 Conn. 436, 437, 177 A. 383 (1935); Maltbie, Conn.App.Proc. (2d Ed.1957) § 212.

Under the waiver rule, when a motion for acquittal at the close of the state's case is denied, a defendant may not secure appellate review of the trial court's ruling without foregoing the right to put on evidence

Page 1211

in his or her own behalf. The defendant's sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state's evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto. The defendant then runs the risk that the testimony of defense witnesses will fill an evidentiary gap in the state's case. The waiver rule, therefore, forces the defendant to choose between waiving the right to a defense and waiving the right to put the state to its [194 Conn. 441] proof. It is doubtful whether a criminal defendant should be placed in such a dilemma.

Our previous cases have applied the waiver rule without any discussion of the rule's effect on the defendant's right to have the state prove his or her guilt beyond a reasonable doubt. State v. Brown, supra, 172 Conn. 532-33, 375 A.2d 1024; State v. Ralls, 167 Conn. 408, 415 n. 2, 356 A.2d 147 (1974); State v. Dubina, 164 Conn. 95, 101, 318 A.2d 95 (1972); State v. Anderson, 152 Conn. 196, 198, 205 A.2d 488 (1964); State v. Boucher, supra, 119 Conn. 437, 177 A. 383. See Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). Our case law arose under former rules of practice which made no distinction between the motions for directed verdict in a civil trial and a criminal prosecution. 3 In our courts, as in other jurisdictions, the waiver rule was imported from the civil to the criminal sphere along with the motion for directed verdict itself. See Cephus v. United States, 324 F.2d 893, 896-97 (D.C.Cir.1963); comment, "The Motion for Acquittal: A Neglected Safeguard," 70 Yale L.J. 1151, 1151-52 (1961); Maltbie, supra. Our current [194 Conn. 442] rules of procedure, 4 however, reflect a heightened awareness of the constitutional differences between civil and criminal fact finding under which the survival of the waiver rule is doubtful.

Page 1212

We note that courts in a number of other jurisdictions have, in recent years, questioned the validity of the waiver rule. Although the majority of the federal courts still adhere nominally to the waiver rule; McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971), reh. denied, 406 U.S. 978, 92 S.Ct. 2407, 32 L.Ed.2d 677 (1972); United States v. Calderon, 348 U.S. 160, 164 and n. 1, 75 S.Ct. 186, 188, 99 L.Ed. 202 (1954); United States v. Keuylian, 602 F.2d 1033, 1040-41 (2d Cir.1979); 2 Wright, Federal Practice and Procedure (1982) § 463; the rule has come under increasing attack as incompatible with the constitutional requirement of due process that the prosecution must introduce sufficient evidence to justify a conviction[194 Conn. 443] before the defendant may be required to respond. "One of the greatest safeguards for the individual under our system of criminal justice is the requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense. 'Ours is the accusatorial as opposed to the inquisitorial system.... Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence...

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67 practice notes
  • State v. Castonguay
    • United States
    • Supreme Court of Connecticut
    • September 4, 1984
    ...content of the opinion or the impact it had on the juror is clearly impermissible. Aillon v. State, supra, 168 Conn. 551-52, 363 A.2d 49. [194 Conn. 438] There is error on the defendant's appeal, the case is remanded to the trial court for further proceedings consistent with this opinion. T......
  • State v. Roy, No. 12281
    • United States
    • Appellate Court of Connecticut
    • June 21, 1994
    ...v. Simino, 200 Conn. 113, 118 n. 5, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984). Our Supreme Court has continued to apply the waiver rule and......
  • State v. Amarillo
    • United States
    • Supreme Court of Connecticut
    • January 14, 1986
    ...denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); see State v. Morrill, 197 Conn. 507, 513, 498 A.2d 76 (1985); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 With respect to the sufficiency of the evidence, the defendant argues that the identifications by the victim and by the......
  • State v. Glenn, No. 11031
    • United States
    • Appellate Court of Connecticut
    • April 6, 1993
    ...State v. Simino, 200 Conn. 113, 118 n. 5, 509 A.2d 1039 (1986; State v. Lizzi 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984); it is still accepted as the law in Connecticut and we wi......
  • Request a trial to view additional results
66 cases
  • State v. Castonguay
    • United States
    • Supreme Court of Connecticut
    • September 4, 1984
    ...content of the opinion or the impact it had on the juror is clearly impermissible. Aillon v. State, supra, 168 Conn. 551-52, 363 A.2d 49. [194 Conn. 438] There is error on the defendant's appeal, the case is remanded to the trial court for further proceedings consistent with this opinion. T......
  • State v. Roy, No. 12281
    • United States
    • Appellate Court of Connecticut
    • June 21, 1994
    ...v. Simino, 200 Conn. 113, 118 n. 5, 509 A.2d 1039 (1986); State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984). Our Supreme Court has continued to apply the waiver rule and......
  • State v. Amarillo
    • United States
    • Supreme Court of Connecticut
    • January 14, 1986
    ...denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); see State v. Morrill, 197 Conn. 507, 513, 498 A.2d 76 (1985); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 With respect to the sufficiency of the evidence, the defendant argues that the identifications by the victim and by the......
  • State v. Glenn, No. 11031
    • United States
    • Appellate Court of Connecticut
    • April 6, 1993
    ...State v. Simino, 200 Conn. 113, 118 n. 5, 509 A.2d 1039 (1986; State v. Lizzi 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984); it is still accepted as the law in Connecticut and we wi......
  • Request a trial to view additional results
1 books & journal articles
  • Rethinking Police Expertise.
    • United States
    • Yale Law Journal Vol. 131 Nbr. 2, November 2021
    • November 1, 2021
    ...(1949); United States v. Mandujano, 425 U.S. 564, 597 (1976) (Brennan, J., concurring) (quoting Watts, 338 U.S. at 54); State v. Rutan, 479 A.2d 1209, 1212 (Conn. 1984) (same); People v. Dunbar, 958 N.Y.S.2d 764, 770 (App. Div. 2013) (373.) United States v. Russell, 411 U.S. 423,444 n.2 (19......

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