State v. Theriault, 13046

• Decision Date: 27 October 1995
• Docket Number: No. 13046,13046
• Citation: 663 A.2d 423,38 Conn.App. 815
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mary THERIAULT.

Page 423

663 A.2d 423

38 Conn.App. 815

STATE of Connecticut v. Mary THERIAULT.

No. 13046.

Appellate Court of Connecticut.

Argued April 18, 1995.

Decided Aug. 22, 1995.

Certification Denied Oct. 27, 1995.

G. Douglas Nash, Public Defender, for appellant (defendant).

Nancy L. Gillespie, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and John J. Dropick, Assistant State's Attorney, for appellee (State).

Before LANDAU, SPEAR and FRANCIS X. HENNESSY, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics in violation of General Statutes § 21a-277(a). ¹ She claims that the trial court improperly (1) failed to charge the jury that the state's key witness had three particular prior felonies, (2) denied her motion for judgment of acquittal, (3) charged the jury as to the definition of "sale," and (4) failed to charge the jury as to the definition of "agent."

The jury could have reasonably found the following facts. On the evening of December 3, 1991, Nicholas Wassil and David Groleau went to the defendant's apartment building for the purpose of buying heroin. Wassil, who had had prior dealings with the defendant, went inside and knocked on the door of the defendant's apartment. When the defendant answered, Wassil stepped just inside the doorway and asked the defendant if she had "any dope." The defendant, who understood that Wassil meant heroin, answered "No." An unidentified woman, inside the apartment behind the defendant, said that she had some. In response, Wassil handed $40 to the defendant, who handed it to the woman. The woman then handed two bags of heroin to the defendant, who handed them to Wassil. Wassil and Groleau returned to Groleau's house, where they each injected a bag of heroin. Groleau died later that evening from acute combined drug toxicity.

The defendant was charged with manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3) ² and sale of narcotics. The jury found the defendant guilty of the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56(a)(1) ³ and sale of narcotics. ⁴ Following the verdict, the trial court granted the defendant's motion for judgment of acquittal as to the manslaughter charge, but denied it as to the sale of narcotics charge. This appeal followed.

I

The defendant first claims that the trial court inadequately applied the law to the facts of the case in its charge to the jury. Specifically, she argues that, while the court properly instructed the jury on the principle that a witness' prior felony conviction may be considered in assessing that witness' credibility, the court failed to charge that the state's key witness had been convicted of three specific felonies.

The following additional facts are relevant to this claim. Wassil, who testified on behalf of the state, was the only witness linking the defendant to the sale of the heroin. On direct and cross-examination, Wassil testified that he had felony convictions for larceny in the third degree, possession of narcotics and forgery in the second degree.

The defendant submitted a request to charge that specifically noted Wassil's felony convictions and their relevance to the jury's assessment of his credibility. ⁵ The trial court instructed the jury: "Now, there was testimony here of a previous felony conviction on the part of Nicholas Wassil. That evidence was offered and admitted for one purpose only, to address the question of credibility or believability of the witness Nicholas Wassil." The court then instructed the jury on the general law of how a jury may utilize a witness' prior felony convictions in appraising the witness' credibility. Following the charge, the defendant excepted, arguing that the trial court should have referred to and specified Wassil's three convictions, rather than mentioning a single, undesignated felony. The trial court declined to reinstruct the jury.

While jury instructions "need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury." (Internal quotation marks omitted.) Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 668, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991), quoting Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

"The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. Worden v. Francis, 153 Conn. 578, 579, 219 A.2d 442 [1966]; Deutsch v. LaBonne, 111 Conn. 41, 44, 149 A. 244 [1930]." Vita v. McLaughlin, 158 Conn. 75, 77, 255 A.2d 848 (1969). For this reason, "[a] charge cannot be given in the abstract without reference to the evidence sufficient to provide guidance to the jury in arriving at a just result." State v. Wolff, 29 Conn.App. 524, 531, 616 A.2d 1143 (1992); see also Shelnitz v. Greenberg, 200 Conn. 58, 72, 509 A.2d 1023 (1986). The court's instructions must "go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven." State v. Sumner, 178 Conn. 163, 170-71, 422 A.2d 299 (1979); State v. Wolff, supra. The trial court does not properly fulfill the role of giving proper jury instructions by simply laying down the general principles of law applicable to the case and then leaving it to the jury to apply them. State v. Wolff, supra. Rather, it is the trial court's obligation to inform the jury what the law is as applicable to the facts of the case. Id., at 532, 616 A.2d 1143.

"While [t]he degree to which reference to the evidence may be called for lies largely in the discretion of the court ... reference to the evidence is required sufficient to guide the [jurors] in their application of the stated law to the evidence before them." (Citation omitted; internal quotation marks omitted.) Mack v. Clinch, 166 Conn. 295, 297, 348 A.2d 669 (1974). If the issues presented to the jury are not complicated, the trial court must, at a minimum, refer to the essential facts surrounding each instruction. Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80 (1970). "Whether the trial court's charge adequately relates the issues of law to the facts of a case depends on the particular circumstances of that case." State v. Crosby, 36 Conn.App. 805, 814, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995).

In this case, the defendant does not contest that the trial court properly presented the general legal principles applicable to the jury's consideration of a witness' prior felony convictions. Rather, she argues that the court did not refer the jury to the essential facts surrounding that instruction. She asserts that the court erred by omission as well as by affirmative misstatement. That is, not only did the court fail to specify Wassil's three felony convictions, but it also charged the jury that "there was testimony here of a previous felony conviction on the part of Nicholas Wassil." (Emphasis added.)

The state argues that even if the challenged language in the court's charge did indirectly indicate to the jury that it should consider only a single, unspecified felony conviction in weighing Wassil's credibility, the remainder of the charge properly emphasized to the jury that its recollection of the evidence controlled. Consequently, because the jury had heard evidence that Wassil had convictions for larceny, forgery and possession of narcotics, it understood that those convictions could be considered in the assessment of Wassil's credibility.

Because Wassil was the only witness linking the defendant to the alleged sale of the heroin, the defendant's attack on Wassil's credibility was essential to her defense. General Statutes § 52-145 ⁶ provides that conviction of a crime may be shown for the purpose of attacking a witness' credibility. Our Supreme Court has held that " 'a conviction of a crime, whether or not the crime is denominated a felony, is admissible under § 52-145, only if the maximum permissible penalty for the crime may be imprisonment for more than one year.' " State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413, cert. denied, 469 U.S. 1112, 105 S.Ct. 793, 83 L. Ed.2d 786 (1984), quoting Heating Acceptance Corp. v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965).

"Under the standards that we have recognized, prior convictions that are admissible for impeachment purposes may be segregated into two general categories. First are those crimes that by their very nature indicate dishonesty or tendency to make false statement.... Beyond the obvious violations such as perjury or false statement, we have recognized that crimes involving larcenous intent imply a general disposition toward dishonesty such that they also fall within this category.... Convictions of this sort obviously bear heavily on the credibility of one who has been convicted of them.... The second category involves convictions for crimes that do not reflect directly on the credibility of one who has been convicted of them.... The theory behind the admissibility of these convictions as evidence of credibility posits that conviction of a crime demonstrates a bad general character, a general readiness to do evil and that such a disposition alone supports an inference of a readiness to lie in the particular case.... Convictions of crimes that fall within this second category blemish the character of one so convicted. A juror might reasonably conclude that such a witness lacks to some degree the moral rectitude from which a witness's oath of honesty derives its credibility." (Citations omitted; internal quotation marks omitted.) State v. Geyer, 194 Conn. 1, 12-13, 480 A.2d 489 (1984).

Wassil's larceny and forgery convictions fall within the first category of prior...