State v. Smith

• Decision Date: 07 August 1984
• Citation: 194 Conn. 213,479 A.2d 814
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John SMITH.

Page 814

479 A.2d 814

194 Conn. 213

STATE of Connecticut v. John SMITH.

Supreme Court of Connecticut.

Argued June 7, 1984.

Decided Aug. 7, 1984.

Jon C. Blue, Asst. Public Defender, with whom, on brief, was Jean E. Blue, Asst. Public Defender, for appellant (defendant).

Steven M. Sellers, Deputy Asst. State's Atty., with whom were John M. Massameno, Asst. State's Atty., and, on brief, Rudolph Shupik, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, HEALEY, SHEA and GRILLO, JJ.

SPEZIALE, Chief Justice.

After a jury trial, the defendant, John Smith, was convicted of the crimes of burglary in the third degree in violation of General Statutes § 53a-103 and criminal impersonation in violation of General Statutes § 53a-130. Each charge was based on a separate information. The defendant now brings a combined appeal from the judgments, claiming the trial court erred: (1) in its instructions to the jury on the burglary charge; and (2) in its denial of the defendant's motion for judgment of acquittal of criminal impersonation because of insufficient evidence. ¹ We find no error in the trial court's burglary instructions but we agree the trial court did err in not granting the defendant's motion for judgment of acquittal on the impersonation charge because of the insufficiency of the evidence.

The jury could reasonably have found the following facts: On October 20, 1979, at approximately 3 a.m. Patrolmen Thomas Russell and Henry Richards of the Bridgeport police were dispatched to the Hitchcock Gas Engines Company shipyard in Bridgeport to investigate the activation of a burglar alarm. Ten or fifteen minutes later a Hitchcock employee who had also been notified of the alarm arrived at the shipyard. The employee let the policemen into the shipyard and then into the main shop building. The employee and the two policemen had just started up the stairs to the office area of the building when Russell saw someone run across the back of the building. Russell gave chase and caught the man later identified as the defendant as he was trying to get out a back door. The chase lasted approximately ten to fifteen seconds. A subsequent search of the premises revealed a ladder propped against an open window and marks of an unsuccessful attempt of forcible entry on one of the doors. Several padlocked drawers containing employees' tools had been broken open inside the shop. A Hitchcock employee later discovered the loss of a set of keys which he had left in a pair of pants inside the building. These keys were recovered from the Bridgeport police.

The defendant was taken to Bridgeport police headquarters and turned over to the booking officer. The defendant was searched and his personal effects, which included a set of keys, ² were inventoried and stored. When the defendant was asked his name, he refused to answer for fifteen to twenty minutes and then identified himself as Sam James. He was fingerprinted and photographed and his true name was eventually established through his fingerprints. The defendant was then interviewed by a bail commissioner and told the commissioner his true name. The defendant had a prior criminal record, had once failed to appear for a court appearance, and was on probation at the time of his arrest. Once this information was made available to the bail commissioner through the revelation of the defendant's true name, the defendant's bail bond was set at $10,000. According to the testimony of the bail commissioner, if the defendant had been able to convince the police that he was in fact someone without a criminal record, his bail would have been substantially lower.

I

The defendant's first claim of error concerns the trial court's charge to the jury on the burglary count. General Statutes § 53a-103(a) provides that "[a] person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein." The state argued at trial that it need not prove what crime the defendant intended to commit inside the building. The trial court did not explicitly instruct the jury on any particular crime in its charge regarding this element of burglary. The defendant asserts that this lack of specificity in the jury instructions deprived him of due process of law because it allowed the jury to find him guilty without necessarily finding all of the elements of burglary to have been proved beyond a reasonable doubt.

The defendant admits he did not request a bill of particulars, did not submit a request to charge on the definition of burglary, and failed to except to the trial court's instructions. ³ Because this issue was not properly raised below; Practice Book § 854; ⁴ this court is not bound to consider the defendant's challenge to the instructions on appeal unless the defendant's allegations raise a claim that he has clearly been deprived of a fundamental constitutional right and a fair trial. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The right to be acquitted unless proven guilty beyond a reasonable doubt of each element of the charged offense is a fundamental constitutional right protected by the due process clauses of the federal and Connecticut constitutions. U.S. Const., amend. XIV; Conn. Const., art. I § 8; see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984). This court has consistently held that colorable claims that jury instructions violated this aspect of due process are appealable even when not raised below. See, e.g., State v. DeMatteo, 186 Conn. 696, 705-706, 443 A.2d 915 (1982); State v. Perez, 181 Conn. 299, 311, 435 A.2d 334 (1980); State v. Arroyo, 180 Conn. 171, 173-74, 429 A.2d 457 (1980).

Here, the trial court explained to the jury that the state had to prove the defendant guilty beyond a reasonable doubt of every element of the charged offenses. The court also instructed the jury on intent generally. The jury was further instructed that burglary consisted of the following elements: "For a conviction you must find it proved to your satisfaction beyond a reasonable doubt that the defendant knowingly entered or remained unlawfully in Hitchcock Gas Engines building. And, that the premises constitute a building that he entered. And, that the unlawful entry or remaining was effected or occurred with the defendant's intent to commit a crime in that building."

The court later emphasized that intent to commit a crime in the building was a separate element of burglary: "You must find that the unlawful [entry] or remaining was effected or occurred with the defendant's intent to commit a crime in that building. Burglary is an intent crime. In other words regardless of the nature of the intrusion claimed and even when it may be proved that the defendant entered or remained unlawfully within the building, it must be further proved that he had done so with intent to commit a crime therein."

Finally, the court reviewed the evidence from which the jury could infer an intent to commit a crime: "However, if you disbelieve the defendant's testimony as to the purpose of being there you may look at the other evidence to determine whether or not there was an intent to commit a crime. There was testimony to the fact that lockers were open. There's no testimony that anything was taken from the lockers except the possibility of the keys. In other words there's no testimony that cash was taken, clothes, tools, engines. Whether or not there was an opportunity to take them is another question for you to determine. One does not have to actually commit a crime to go on a premises with intent to commit a crime. You may have intent to commit a crime but never get the chance to do it."

The trial court, however, did not instruct the jury what specific crime or crimes this evidence might show an intent to commit and did not explain the elements of such crimes. The defendant argues, therefore, that the jury may have based its burglary verdict on a finding of intent to commit an act which was either part of the other elements of burglary or wholly noncriminal. We disagree.

An alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled. State v. Ruiz, 171 Conn 264, 273-74, 368 A.2d 222 (1976); State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975). "Whether a charge is possibly misleading depends on the substance rather than the form of what is said." State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). Although the trial court did not explicitly instruct the jury on what crimes it could find the defendant had an intent to commit in the building, the charge was not misleading. First, the court clearly indicated that intent to commit a crime was an element of burglary separate from breaking into or remaining unlawfully in a building. The jury could not have been misled into using evidence of the defendant's entry of and presence in the shop building to find that the defendant intended to commit a crime therein. Second, the court's review of the evidence regarding the opportunity to take property clearly guided the jury to consider whether the defendant intended to commit larceny. Given the court's careful relation of the evidence to the elements of the burglary charge, it is not reasonably possible that the jury were misled by the court's failure to read the statutory name and definition of larceny.

"The charge must give 'the jury a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.' State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974)." State v. Kurvin, supra, 186 Conn. at 573, 442 A.2d 1327 (Speziale, C.J., dissenting). Taken as a whole and specifically related to the facts of this case, it was not reasonably possible that ...