State v. Taxiltaridis

Decision Date18 September 1984
Docket NumberNo. 2709,2709
Citation481 A.2d 98,2 Conn.App. 617
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Steve TAXILTARIDIS.

Ira B. Charmoy, Bridgeport, with whom, on the brief, was James Nugent, Bridgeport, for appellant (defendant).

C. Robert Satti, Asst. State's Atty., with whom was Joseph Marcello, Asst. State's Atty., for appellee (state).

Before DUPONT, BORDEN and SPALLONE, JJ.

PER CURIAM.

The jury found the defendant guilty of assault in the second degree in violation of General Statutes § 53a-60a, of threatening in violation of General Statutes § 53a-62, and of reckless endangerment in the first degree in violation of General Statutes § 53a-63. From the judgment rendered on the verdict, he has appealed, claiming error in the charge to the jury on the defense of the use of justifiable force and in the trial court's comments on the evidence. The defendant also claims error in the denial of his motion for a view of the premises. 1

Despite conflicting testimony, the jury might reasonably have found the following facts: The victim, a former employer of a diner owned by the defendant, loaned the defendant $2000. Sometime thereafter, a dispute arose over the repayment of the loan. The dispute intensified over a period of eighteen months, culminating in the defendant's summoning of the victim to the diner for a meeting. An altercation arose and in the course of an ensuing physical encounter between the two in the office of the diner, the defendant pointed a gun at the victim, placed the gun in his mouth, and struck him with a fist and with the gun, and threatened to kill him. During the confusion, the gun was discharged and a bullet lodged in the office ceiling. Although the victim received bruises and scratches, there were no other injuries.

The defendant's first and second claims of error arise from the trial court's instructions to the jury. The transcript discloses that after the court delivered its charge, the defendant took exception on several grounds including the court's failure to charge on the justifiable use of physical force pursuant to General Statutes §§ 53a-20 and 53a-21 and the court's comments on the evidence. The court reconvened the jury and gave a supplemental charge. The defendant neither reasserted his objection to the initial charge nor objected to the supplemental charge as insufficient to cure the errors initially claimed. The defendant's attorney contends that he began to except to the supplemental charge but was cut off in mid-sentence by the trial court. Our review of the transcript reveals that this "exception" did not comply with our rules of practice. Practice Book § 315 states that " '[c]ounsel taking the exception shall state distinctly the matter objected to and the ground of the objection.' " (Emphasis added.) Giglio v. Hamilton Heights, Inc., 1 Conn.App. 165, 167, 469 A.2d 416 (1984). "The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial.... [T]he defendant's failure to except to the supplementary charge is not a mechanical barrier to review. Rather, when viewed in the context of defense counsel's participation in fashioning the supplementary charge, the failure to except supports the trial court's conclusion that the defendant accepted the supplemented charge as correct." State v. Jones, 193 Conn. 70, 88-89, 475 A.2d 1087 (1984).

The court "shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing." Practice Book § 854; see also Practice Book §§ 3060F(c)(1) and (2); 3063. Because claims not distinctly raised at trial are considered waived; State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982); State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973); such claims will be reviewed on appeal "[o]nly in most exceptional circumstances." State v. Evans, supra, 69, 327 A.2d 576; State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984); State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); see State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981). Claims of error not brought to the attention of the trial court will be reviewed only if either a new constitutional right not readily foreseeable has arisen between the time of trial and appeal or if the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 165 Conn. 70, 327 A.2d 576. The defendant argues that the second exceptional circumstance exists as to both claims of error in the present case.

He contends that the charge on §§ 53a-20 and 53a-21 was contradictory and misleading and so confused the jury as to deprive him of his constitutional right to a fair trial. The court's instruction as to § 53a-20 closely followed the language of that statute: "A person in possession or control of premises is 'justified' in using 'reasonable' physical force upon another person when, and to the extent that he 'reasonably' believes it is necessary to prevent or terminate a commission or attempted commission of a criminal trespass by such other person in or upon the premises." The court also tracked the statutory language when it charged on § 53a-21: "A person is 'justified' in using 'reasonable' physical force upon another when and to the extent he reasonably believes it necessary to prevent an attempt by such other person to commit criminal mischief involving property." The court further stated that "if you believe that [the victim] meant to do anything to damage the property or if you think that he intended to steal anything, commit a larceny, and that's covered by that section that I was just reading to you, then Mr. Taxiltaridis would have, depending on the circumstances, whether it was 'reasonable' and so forth, as you find. It [sic] might have the defense of 'justification' available to him. I would emphasize to you again, that in all of these matters concerning 'justification,' self-defense, defense of the person, the property or premises, the word is 'reasonable.' "

In considering a charge, critical dissection is not required. The charge as a whole must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. Reid, 193...

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10 cases
  • State v. Pollitt, 12431
    • United States
    • Connecticut Supreme Court
    • September 1, 1987
    ... ... Presumably, they were cured by the court's charge, not once but several times, [205 Conn. 157] that the jury's recollection of the evidence controlled. 13 See id.; State v. Taxiltaridis, 2 Conn.App. 617, 621-22, 481 A.2d 98 (1984) ...         The court fairly and adequately told the jury that it, not the court, decided the facts and that the court's concern with the evidence was only "to put [the evidence] in context with the law as I give it ... Page 138 ... to ... ...
  • State v. Foshay, 4663
    • United States
    • Connecticut Court of Appeals
    • October 21, 1987
    ... ...         A charge to the jury must be reviewed as a whole and considered from the standpoint of its probable effect upon the jurors in guiding them to a proper verdict in the case. State v. McKnight, 191 Conn. 564, 582, 469 A.2d 397 (1983); State v. Taxiltaridis, ... Page 625 ... Conn.App. 617, 620, 481 A.2d 98 (1984). For this reason, we are not bound by the views of the court or counsel in resolving this issue. In this case, the court preceded its instruction on accessory liability; by stating: "Now, as to Robert Foshay, the same principle of ... ...
  • State v. Flynn, s. 4132
    • United States
    • Connecticut Court of Appeals
    • April 5, 1988
    ...within the sound discretion of the trial court. Mackin v. Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982); State v. Taxiltaridis, 2 Conn.App. 617, 622, 481 A.2d 98 (1984). In this case, the trial court's denial of the motion to view was not an abuse of discretion. Although a viewing of the......
  • State v. Servello
    • United States
    • Connecticut Court of Appeals
    • April 12, 1988
    ...in guiding them to a proper verdict in the case; State v. McKnight, 191 Conn. 564, 582, 469 A.2d 397 (1983); State v. Taxiltaridis, 2 Conn.App. 617, 620, 481 A.2d 98 (1984); we conclude that the jury was not misled or improperly instructed on the concept of "without paying the purchase pric......
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