State v. Stewart

Decision Date17 July 2001
Docket Number(AC 18813)
Citation780 A.2d 209,64 Conn. App. 340
CourtConnecticut Court of Appeals

Foti, Spear and Dupont, Js.

Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Eugene Callahan, state's attorney, and Steven G. Weiss, supervisory assistant state's attorney, for the appellee (state).



This case returns to the Appellate Court on remand from our Supreme Court. State v. Stewart, 255 Conn. 913, 763 A.2d 1039 (2000). The defendant, Glenn Stewart, originally appealed to this court from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1)1 and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a).2

In his original appeal to this court, the defendant asserted that the trial court improperly (1) denied his motion for a judgment of acquittal because the evidence was insufficient to convict him of either charge, (2) failed to instruct the jury, as required by statute,3 that it could draw no unfavorable inferences from his failure to testify, (3) precluded evidence that the child victim died because she and her safety seat were not properly secured, and (4) failed to instruct the jury adequately on the essential element of causation. We resolved issues one, three and four against the defendant, and resolved issue two in the defendant's favor, thereby reversing the judgment of conviction and remanding the case for a new trial. State v. Stewart, 60 Conn. App. 301, 759 A.2d 142, remanded, 255 Conn. 913, 763 A.2d 1039 (2000).

After the defendant filed his brief in the original appeal to this court, the state filed a motion for permission to file a late motion for articulation or rectification. The state sought an articulation from the trial court as to whether, during a charging conference held in chambers, the defendant's trial attorney had requested that the court omit from its charge the "no unfavorable inferences" instruction at issue in the appeal. On February 9, 2000, we denied the state's motion.

On October 10, 2000, we officially released our decision on the defendant's appeal. We held, with respect to the issue concerning the omission of the "no unfavorable inferences" instruction, that there was no record of any conference at which the defendant's attorney requested that the court omit the instruction from its charge and that the court's failure to so charge constituted plain error. Id., 309. We relied on our decision in State v. Suplicki, 33 Conn. App. 126, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994).

On December 5, 2000, our Supreme Court granted the state's petition for certification limited to the following issues: "1. Did the Appellate Court properly conclude that, under the facts of this case, the trial court's failure to give a `no unfavorable inferences' instruction was plain error requiring reversal of the conviction? 2. Is the failure to include such an instruction subject to harmless error analysis?" State v. Stewart, 255 Conn. 913, 763 A.2d 1039 (2000). Our Supreme Court also "ordered that the trial court articulate the facts concerning discussions, if any, among the state's attorney, defense counsel and the court during a charging conference, relative to the court's giving a `no unfavorable inferences' instruction to the jury in this matter." Id.

On December 14, 2000, the trial court filed its articulation.4 On January 25, 2001, after receiving the trial court's articulation, our Supreme Court remanded the matter to this court "for reconsideration of whether the failure to give the instruction, under the circumstances of this case, was plain error requiring the reversal of the conviction." Id. We answer that question in the negative and, accordingly, affirm the judgment of the trial court.

The defendant argues that the court committed plain, reversible error by omitting the "no unfavorable inferences" instruction from its jury charge.5 He asserts that the instruction implicated his fundamental right not to testify, which only he could exercise. As such, he argues, it necessarily follows that "the accused must personally waive his statutory right to the protections of General Statutes § 54-84 (b)." The defendant urges us to accept his interpretation of the statute, arguing that it "requires the court to ask the accused personally whether he or she desires to waive the otherwise mandatory instruction." The defendant argues that because the court never conducted that inquiry, it committed plain error.

The relevant facts underlying the defendant's conviction, as the jury reasonably could have found them, were set out in this court's first opinion in this matter. State v. Stewart, supra, 60 Conn. App. 301. A summary of those facts will suffice here. On April 8, 1996, Ioanna Schmidt and her four month old daughter, Arianna, were traveling on the southbound lane of Interstate 95 in Stamford. The weather conditions that evening were a wintry mix of snow and rain. Schmidt was driving a Toyota Corolla, and her daughter was buckled into her seat in the back of the vehicle. Lori Bonante was also traveling in the southbound lane at the same time as Schmidt.

Near exit two, Bonante, traveling in the right lane, noticed a large tractor trailer approach her from behind. The truck, operated by the defendant, maintained a distance of only a few inches from the rear of Bonante's vehicle for a distance of about one mile. After Schmidt, traveling in the center lane, passed the defendant's truck, the defendant moved from behind Bonante's vehicle into the center lane. Bonante decelerated her vehicle, affording Schmidt an opportunity to get out of the defendant's lane. As Schmidt moved from the center lane to the right lane, the defendant accelerated his tractor trailer, striking the left rear portion of her vehicle.

The impact caused Schmidt's vehicle to careen across the right lane, enter a grassy area and collide with a tree. Arianna was ejected from the vehicle as it collided with the tree. Arianna died from her injuries approximately six weeks after the accident.

After the accident, the defendant pulled his tractor trailer to the left lane, stopped and walked back to the scene of the accident. Shortly thereafter, he returned to his truck and drove away without speaking to anyone at the scene. Some ten months later, the state police determined that the defendant was operating the truck at the time of the accident. On February 23, 1997, the state police arrested the defendant who, after initially indicating that he possessed a poor recollection concerning the events surrounding the accident, admitted that he must have been the truck's operator. Id., 303-305.

At trial, the defendant did not raise the issue that the court improperly omitted the "no unfavorable inferences" instruction from its charge to the jury. On appeal, however, he concedes that his trial counsel specifically requested that the court take the action he now challenges. He nevertheless argues that the court committed plain error, which warrants the reversal of the judgment of conviction. Our Supreme Court has observed in several opinions that "`plain error is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992).' ... State v. Cassidy, 236 Conn. 112, 144, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), overruled on other grounds, State v. Alexander, 254 Conn. 290, 755 A.2d 868 (2000). Although, on rare occasions, we have granted plain error review for claims of improper jury instructions... we have done so only when the instruction in question either failed to include language from a mandatory charging statute, or when the instruction was so patently improper that to allow it to stand uncorrected would work a manifest injustice." (Citations omitted.) State v. Kelly, 256 Conn. 23, 58 n. 18, 770 A.2d 908 (2001); see also Practice Book § 60-5.6

The United States Supreme Court, in Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241

(1981), discussed the fundamental importance of a "no adverse inference" instruction and its relation to the constitutional privilege against self-incrimination embodied in the fifth amendment to the United States constitution. The Supreme Court noted that "the principles enunciated in our cases construing this privilege, against both statutory and constitutional backdrops, lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal trial judge must give a `no adverse-inference' jury instruction when requested by a defendant to do so." Id., 300.

The Supreme Court underscored the significance of such an instruction in light of the tendency of jurors to view a criminal defendant's fifth amendment privilege "as a shelter for wrongdoers ... and jurors who too readily assume that those who invoke it are ... guilty of crime...." (Internal quotation marks omitted.) Id., 302. The court stated that "a trial judge has a powerful tool at his disposal to protect the constitutional privilege—the jury instruction—and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum." Id., 303.

"The provisions of § 54-84 (b) are more stringent than the federal or state constitutions require.... While the...

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