State v. Silano, 12909

Citation204 Conn. 769,529 A.2d 1283
Decision Date11 August 1987
Docket NumberNo. 12909,12909
PartiesSTATE of Connecticut v. John SILANO.
CourtSupreme Court of Connecticut

Richard Emanuel, for appellant (defendant).

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

Before PETERS, C.J., and HEALEY, SHEA, CALLAHAN and COVELLO, JJ.

SHEA, Justice.

The defendant was convicted after a jury trial of arson in the first degree in violation of General Statutes § 53a-111. 1 In his appeal from the judgment the defendant claims that the trial court erred: (1) in instructing the jury concerning (a) the inferences it might draw from circumstantial evidence and (b) the elements of the crime of arson in the first degree; (2) in allowing the state to ask a question on cross-examination concerning his postarrest silence after Miranda warnings had been given; and (3) in denying his motion for a judgment of acquittal filed on the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We find no error.

The jury could reasonably have found from the evidence that on September 3, 1984, a fire started in the basement of the Lanza Market in Bridgeport, where the defendant worked as a butcher. His brother owned the store, which sold groceries. Lieutenant Andrew Fardy of the Bridgeport fire department received two calls, one on August 30 and the other on the afternoon of September 3, informing him that someone was going to burn down the Lanza Market. On the date of the fire, Fardy and Bridgeport police detective Albert Fedorek saw the defendant go down the basement stairway. Shortly before the fire had begun, Fardy observed the defendant run from the rear of the store. The two officers subsequently apprehended the defendant and arrested him. Following his conviction, the defendant was sentenced to a term of twelve years, execution of that term suspended after seven years, and then to a term of probation for five years.

I
A

The defendant challenges the charge to the jury upon the use of circumstantial evidence and upon the elements of the crime of arson in the first degree. The defendant claims that the trial court's instructions concerning circumstantial evidence impermissibly diminished or diluted the requisite constitutional standard for proof of guilt beyond a reasonable doubt. Ordinarily the defendant's failure to except to this portion of the court's charge, or to file a request to charge on circumstantial evidence would preclude review. Practice Book §§ 854, 4185. We shall review his claim, however, because it implicates the fundamental constitutional right that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The defendant objects to portions of the charge in which the court used the phrase "reasonable and logical" as the criterion for drawing inferences from circumstantial evidence. The following excerpt from the charge is illustrative: From the circumstantial evidence "you are asked to draw whatever inference or conclusion is reasonable and logical. If it's not reasonable, it's not logical, then you cannot draw it. If it is reasonable and is logical, you should draw it, but you don't have to. That's a jury's prerogative. They are asked to do it. They should do it. But whether you do or not, is up to you." The defendant maintains that this instruction, allowing jurors to draw "reasonable" and "logical" inferences from circumstantial evidence, implies an even lower standard of proof in a criminal case than the impermissible "more probable than not" test. In State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, --- U.S. ----, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986), and in State v. Rodgers, 198 Conn. 53, 56-59, 502 A.2d 360 (1985), we found constitutional error where a portion of the charge may have implied that a jury should draw inferences from circumstantial evidence concerning a defendant's criminal intent if those inferences were more probable than not.

After giving the quoted instruction, the court told the jury that inferences could be drawn only if both the basic facts and the inferred facts were proved beyond a reasonable doubt. "Of course, [in] passing upon the guilt of an accused person on the basis of circumstantial evidence, you must be satisfied beyond a reasonable doubt first, that certain facts or circumstances exist and second, that the existence of those facts or circumstances do beyond a reasonable doubt, reasonably and logically lead you to other facts establishing that the crime was committed by the accused." This instruction, closely following the reference to drawing inferences from circumstantial evidence when "reasonable and logical," leaves little basis for the defendant's constitutional challenge to that language.

We have often said that the charge should be read as a whole. "It is well established ... that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977)." State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert . denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986); State v. Miller, supra, 202 Conn. at 491-92, 522 A.2d 249; State v. Whelan, supra, 200 Conn. at 757, 513 A.2d 86; State v. Widget, 11 Conn.App. 47, 52, 525 A.2d 548 (1987).

In the course of a charge on drawing inferences from circumstantial evidence, a court may correctly instruct a jury that it has the prerogative to draw inferences that are "reasonable" and "logical." Such an instruction, at least when qualified, as in this case, by a caveat that both the ultimate inference of guilt and the facts essential to that inference must be proved beyond a reasonable doubt, does not dilute the constitutional standard of proof in a criminal case. We do not perceive the same potential for confusion of the jury in the "reasonable" and "logical" language that we have found in the "more probable than not" phrase. We note that three recent Appellate Court decisions have rejected claims that an instruction permitting a jury to draw "reasonable and logical" inferences is improper. State v. Widget, supra; State v. Wylie, 10 Conn.App. 683, 691-92, 525 A.2d 528 (1987); State v. Wright, 9 Conn.App. 275, 280-82, 518 A.2d 658 (1986). "The statement that inferences should be reasonable and logically drawn is not, in and of itself, erroneous. In fact, such an instruction, it has previously been recognized, is 'entirely proper.' State v. Wright, supra [at], ; see State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); D. Borden & L. Orland, Connecticut Criminal Jury Instructions § 2.5, pp. 43-44." State v. Wylie, supra, 10 Conn.App. at 691, 525 A.2d 528.

Although we do not believe that the disputed instructions, in the context of those immediately following, implied a "more probable than not" standard, even if they did suggest such a test the charge as a whole still met constitutional standards as applied to the issues in this case. We have affirmed convictions even though the court employed "more probable than not" language in the charge. State v. Miller, supra, 202 Conn. at 490-91, 522 A.2d 249; State v. Reddick, supra, 197 Conn. at 131-33, 496 A.2d 466. Even where we have reversed a conviction because of an erroneous use of a probability standard for drawing inferences, this court has employed the "reasonable and logical" terminology: "The inference drawn must be reasonable and logical, and not the result of speculation or conjecture. State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980)." State v. Rodgers, supra, 198 Conn. at 57, 502 A.2d 360. There is nothing inherently objectionable about a judge permitting, but not requiring, a jury to draw "reasonable and logical" inferences from circumstantial evidence so long as it is made clear that the ultimate inference of guilt as well as the facts essential thereto must be established beyond a reasonable doubt.

B

The defendant claims that the trial court erred in its instructions to the jury on one of the essential elements of arson in the first degree, the requirement that "at the scene of such fire or explosion a peace officer or firefighter [be] subjected to a substantial risk of bodily injury." General Statutes § 53a-111(a)(4). During the course of the charge the trial court stated: "It is sufficient that at the time the fire was set, a reasonable person could have foreseen that the risk of bodily injury was substantial." The defendant contends that this isolated instruction was erroneous, and claims that a conviction for arson in the first degree requires that the fire which actually develops must pose a substantial risk to a peace officer or firefighter.

The defendant took no exceptions to the trial court's charge. More importantly, the defendant filed a request to charge in which he requested that the trial judge employ the definition of "substantial risk" used in State v. Parmalee, 197 Conn. 158, 496 A.2d 186 (1985). 2 In Parmalee, this court declared that "[t]he very act of setting the fire and...

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