State v. Shaw

• Decision Date: 23 April 1991
• Docket Number: No. 8036,8036
• Citation: 589 A.2d 880,24 Conn.App. 493
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Arthuly S. SHAW.

Page 880

589 A.2d 880

24 Conn.App. 493

STATE of Connecticut v. Arthuly S. SHAW.

No. 8036.

Appellate Court of Connecticut.

Argued Dec. 11, 1990.

Decided April 23, 1991.

John F. Kavanewsky, Jr., Norwalk, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Stephen J. Sedensky III, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and DALY and LANDAU, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of four counts of conspiracy to commit forgery in the second degree in violation of General Statutes §§ 53a-48 and 53a-139(a)(3). He was tried with a codefendant, Romane Moore, who was found guilty of four counts of forgery in the second degree, in violation of General Statutes § 53a-139(a)(2). The charges against the codefendants arose out of the same factual circumstances, although Moore was not charged with conspiracy. ¹

This case involves a scheme to procure, for a profit, forged Connecticut drivers' licenses. The jury could reasonably have found certain facts. On January 19, 1983, the defendant accompanied Anthony Carswell to the department of motor vehicles in Bridgeport. The defendant obtained an application for a driver's license. Meanwhile, the codefendant, who was then employed as a clerk-typist at the department and was the defendant's live-in girl friend, retrieved from a computer the name, address and other relevant information of a person who had not renewed his license. The codefendant then gave this information to the defendant and Carswell. Carswell paid the codefendant $250, and, using the information provided by her, he filled out the application for a driver's license. Robin Hudson, another employee, vouched for the identification of Carswell as the person whose name had been retrieved from the computer by the codefendant. At the time, it was an accepted practice at the Bridgeport office to allow employees to identify license applicants for the purpose of verifying the applicant's identity. Carswell was then photographed, and his application was processed. As a result, Carswell received a license issued in another's name with Carswell's picture on it.

Substantially the same procedure was repeated on June 16, 1983. The defendant drove Carswell to the department of motor vehicles in Bridgeport. After Carswell had obtained an application, the codefendant supplied him with a name and the other necessary information. Carswell again filled out the application with the information provided by the codefendant and then either the codefendant or Hudson identified Carswell as that person. Carswell paid the codefendant or the defendant $250 for this license with Carswell's picture on it but with another's name.

After obtaining this license, Carswell left the building and returned to the defendant's car. From the defendant's car, he observed the defendant and Robert Carter conversing in Carter's car in the parking lot. Carswell followed the defendant and Carter into the motor vehicle office. He saw the codefendant hand Carter a piece of paper with a name and address on it and then watched Carter fill out an application for a driver's license. After an unidentified employee vouched for Carter's identity, he was photographed and his application for a driver's license was processed.

Carswell, after observing Carter obtain a license, then obtained a second license in a manner similar to that used earlier that day. He again paid either the codefendant or the defendant $250 for this second license bearing his picture but another's name. Carter was later arrested and found to possess a license, with his picture on it in the name of another person, issued in the Bridgeport office on June 16, 1983.

On appeal, the defendant has raised two issues. First, he challenges additional instructions given to the jury midway through its deliberations. Second, the defendant claims that the multiple convictions of conspiracy arising out of the events that occurred on June 16, 1983, were duplicative.

The defendant argues that his due process rights under both the federal and the state constitutions ² were violated when the trial court reinstructed the jury, midway through its deliberations, that it could find the defendant guilty of conspiracy if he conspired with the codefendant or, in the alternative, with "other parties." Specifically, the defendant claims that the court's reinstruction invited the jury to speculate and to render a verdict that was not based on any evidence in the case. The defendant contends that the only evidence of conspiracy related to his codefendant and that there was no evidence from which a jury could find, beyond a reasonable doubt, that a conspiracy existed with others. He further asserts that this instruction completely failed to recite the elements of conspiracy as applied to the participation and the intent of the "other parties."

The state asserts that the defendant's claim is not reviewable because he failed to preserve his claim by taking exception to the court's additional instructions. In the alternative, the state urges that if we review this claim, the charge, when considered in its entirety, properly guided the jury in reaching a verdict. The state also argues that there was evidence from which the jury could conclude that the defendant conspired with others.

Although we agree with the state that the defendant did not properly preserve his claim, we, nonetheless, will review it because "the defendant claims that the effect of the objectionable clause was to invite a jury verdict predicated upon speculation and conjecture thus resulting in a fundamental due process violation." State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986); see State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). State v. Golding, supra, establishes that a defendant cannot prevail on an unpreserved constitutional claim unless all of four conditions are met, any one of which may be considered first. The defendant here can prevail on his unpreserved constitutional claim if a fundamental constitutional right clearly exists and he has been clearly deprived of a fair trial. Id., at 240, 567 A.2d 823.

In its initial charge to the jury, the court set forth properly the elements of conspiracy and adequately explained how those elements would apply to a conspiracy between the defendant and the codefendant. Shortly thereafter, the court, in response to a jury question that sought a definition of conspiracy, reinstructed the jurors on the elements of conspiracy and again stated that the agreement, if any, was between the defendant and the codefendant.

Immediately after the court had given the supplemental instruction, the codefendant objected, and argued that the information charging the defendant did not specifically charge conspiracy with the codefendant but rather charged conspiracy "with one or more persons." The defendant did not, however, object to the supplemental instruction. The court then further instructed the jury, with the agreement of all of the parties, including the defendant. This further instruction was as follows: "Ladies and gentlemen of the jury, it's come to my attention from counsel that in my charge on conspiracy I said that conspiracy--Mr. Shaw is charged with four counts of conspiracy and I said the conspiracy was between Mr. Shaw and Miss Moore. The conspiracy, if you find it, can be between Mr. Shaw and other parties, if you find it. It's not restricted solely to Miss Moore; okay?"

It is well established that the trial court should not submit to the jury any issue that is foreign to the facts in evidence or for which no evidence was offered. State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985); State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972). In the present case, however, there was evidence of a conspiracy with persons other than the codefendant from which the jury could conclude "beyond a reasonable doubt that [the defendant] and another person agreed to engage in conduct constituting a crime." ³ State v. Grullon, 212 Conn. 195, 203, 562 A.2d 481 (1989). The jury could have found that persons other than the codefendant, "with culpable intent, agreed with the defendant to violate the law...." Id., at 203, 562 A.2d 481.

The defendant also asserts that the court's instruction completely failed to recite the elements of conspiracy as applied to the participation of persons other than the codefendant. The defendant does not claim, nor could he, that the elements of conspiracy were not carefully explicated by the court, as applied to the codefendant.

The court stated that the jury must find, beyond a reasonable doubt, an agreement between the defendant and the codefendant to engage in conduct constituting a crime that was entered into with criminal intent to do an unlawful act either as a means or an end and that was followed by an overt act by either one of them to effect the object of their agreement. The jury could have rationally applied the elements of conspiracy, as defined correctly by the court, to others as well as to the codefendant. When the court refers to "other parties," that phrase as used in the context of the entire charge can include only a finite number of persons. The words, contrary to the contention of the defendant, cannot logically refer to an infinite number of unnamed persons not involved in this trial.

The additional instruction must be viewed in the context of the entire charge, and we must determine whether the whole charge sufficiently guided the jury to a proper verdict. State v. Grullon, supra, 212 Conn. at 204, 562 A.2d 481; State...