State v. Thompson, 6656

• Decision Date: 21 February 1989
• Docket Number: No. 6656,6656
• Citation: 554 A.2d 297,17 Conn.App. 490
• Parties: STATE of Connecticut v. Willie E. THOMPSON.
• Court: Connecticut Court of Appeals

Page 297

554 A.2d 297

17 Conn.App. 490

STATE of Connecticut v. Willie E. THOMPSON.

No. 6656.

Appellate Court of Connecticut.

Argued Dec. 7, 1988.

Decided Feb. 21, 1989.

John S. Pinney, with whom, on the brief, was Thomas E. Gaffey, Bloomfield, for appellant (defendant).

Mary H. Lesser, Deputy Asst. State's Atty., with whom, on the brief, was Richard Schatz, Former Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and SPALLONE and NORCOTT, JJ.

NORCOTT, Judge.

The defendant appeals from a judgment of conviction of three counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), three counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95, one count of possession of a sawed-off shotgun in violation of General Statutes § 53a-211, and one count of burglary in the third degree in violation of General Statutes § 53a-103(a). ¹ On appeal the defendant raises three claims of instructional error: (1) that the trial court failed to follow the mandate of General Statutes § 54-84(b) regarding the silence of the defendant; (2) that it unconstitutionally diluted the state's burden of proving guilt beyond a reasonable doubt in instructing the jury on circumstantial evidence; and (3) that it misled the jury in its instruction on the element of possession for the crime of possession of a sawed-off shotgun.

From the evidence presented at trial, the jury reasonably could have found the following facts. On January 23, 1983, at about 8:30 p.m., a robbery occurred at Scooby's Restaurant in Groton. On that evening, Michael Thompson, Diana Sliker and Gretchen Crowley were employed there. While they were in the process of closing the restaurant, two masked men entered; one of the men carried a shotgun. The intruders forced the three employees to lie on the floor and bound their hands with coat hangers and their feet with an extension cord. After they searched Thompson's back pockets but found no money, they emptied the safe and the cash register, took the money from the other employees' pocketbooks and fled.

On February 7, 1983, detectives from the Waterford police department interviewed the defendant. During this interview, the defendant confessed to his participation in the Scooby's Restaurant robbery. He told the police that he was wearing a ski mask and gloves and was carrying a shotgun. The defendant also told the police that he and his accomplice then went to New London where they split up the money and that, thereafter, he arranged for someone to dispose of the shotgun.

In addition to the defendant's confession, two other witnesses, Dinah McNair, the defendant's niece, and Susan Pemberton, the defendant's former girlfriend, testified that the defendant had told them that he had committed the robbery. The jury also heard additional testimony regarding the shotgun. Pamela Delome, the defendant's neighbor, testified that the defendant had kept the shotgun under her mattress during January, 1983, and that she often had seen him leave and return with it. She also testified that the defendant had kept masks, ammunition, knives and dynamite in her apartment. Arthur Hewitt, the defendant's brother-in-law, testified that he had found the shotgun under his bed on February 6, 1983, and had thrown it in the Thames River, where the police located it on February 22, 1983. Michael Gomez, another brother-in-law of the defendant, identified the shotgun as his but testified that it had not been sawed off the last time he saw it. He also testified that in January he had hired the defendant to work for him and that he had discovered the shotgun missing sometime in February. The defendant presented no evidence at trial.

The defendant first contends that the trial court erred in its instructions to the jury by failing to follow the mandate of General Statutes § 54-84(b) regarding the silence of the defendant. We first note that at trial the defendant did not request an instruction regarding his failure to testify and did not take exception to this portion of the charge. The defendant claims review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and under the plain error doctrine. Practice Book § 4185.

Our Supreme Court has repeatedly held that "a claim of trial court noncompliance with § 54-84(b) is reviewable on appeal even though the defendant, as in this case, did not at trial except to the charge as given. The statute 'serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial'; State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); and it is 'plain error for a trial judge not to comply with [its] mandate.' State v. Tatem, 194 Conn. 594, 595-96, 483 A.2d 1087 (1984)." State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988). Accordingly, we will afford this claim plain error review.

General Statutes § 54-84(b) provides in pertinent part that the trial court "shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify." The trial court gave the following instruction to the jury regarding the defendant's decision not to testify: "Now an accused person is not obliged to take the witness stand, or to offer any evidence in his own behalf, and no inference of guilt may be drawn from the failure of the defendant to testify in this case." The defendant argues that the trial court's use of the words "of guilt" allowed the jury to speculate on the defendant's bad character or possible criminal record even though the instruction prohibited an inference of guilt. ² We disagree.

Judicial noncompliance with § 54-84(b) does not automatically warrant a reversal and a new trial. State v. Townsend, supra. A minor departure from the language of the statute is not reversible error. State v. Thurman, 10 Conn.App. 302, 309, 523 A.2d 891 (1987). "We must decide, on a case by case basis, whether a trial court's failure fully to comply with the statute was harmless. State v. Cobb, 199 Conn. 324-25, 507 A.2d 457 (1986). Because such an error is of constitutional dimension, '[t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled.' State v. Sinclair, supra, [197 Conn. at] 584 ; State v. Cobb, supra, [199 Conn. at] 325 ; State v. Tatem, supra, [194 Conn. at] 599 . In the present context, the state must show that the charge as given conveyed to the jury the substantive meaning of the statutory requirement. State v. Cobb, supra; State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985)." State v. Townsend, supra, 206 Conn. at 625-26, 539 A.2d 114.

In the present case, the trial court repeatedly instructed the jury that the state alone bore the burden of proving the defendant's guilt beyond a reasonable doubt and that the defendant was presumed innocent until proven guilty and stood before the jury "free from any bias, prejudice, or burden arising from his position as the defendant." Additionally, the trial court specifically instructed the jury that it was the state's evidence alone which must establish the defendant's guilt. We also note that the court's pretrial instructions were replete with references to the aforementioned principles of law concerning the presumption of innocence and thereby served to emphasize the court's later jury instructions.

We find that the court's deviation from the statutory language of General Statutes § 54-84(b) was not the type that, in the context of the entire charge, would mislead the jurors by suggesting that it was permissible for them to consider the defendant's silence in deciding the case; see State v. Townsend, supra; State v. Tatem, supra. The charge, as given, conveyed to the jury the substantive meaning of General Statutes § 54-84(b). Accordingly, we find that the defendant's claim must fail.

The defendant's second claim of instructional error is that the trial court's "more probable than not" reference concerning circumstantial evidence impermissibly diluted the state's burden that it prove every essential element of the crime charged beyond a reasonable doubt. ³ Again, the defendant took no exception to the court's instruction, but we routinely grant Evans review to these claims that involve the fundamental constitutional right that the state establish each element of the defendant's guilt beyond a reasonable doubt. See State v. Mercer, 208 Conn. 52, 72, 544 A.2d 611 (1988); State v. Flinter, 16 Conn.App. 402, 405, 548 A.2d 1 (1988).

It is axiomatic that an instruction that dilutes the state's burden to prove each and every element of the crime charged is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984). Jury instructions similar to the one before us in which the trial court instructs the jury that it may infer facts based on a "more probable than not" standard are erroneous. See State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987); State v. Whelan, 200 Conn. 743, 513 A.2d 86 (1986), cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1987); see also State v. DeMatteo, 13 Conn.App. 596, 538 A.2d 1068 (1988). "We have repeatedly disapproved of the use of the more probable than not standard in instructions on circumstantial evidence. [State v. Gonzalez, 205 Conn. 673, 692, 535 A.2d 345 (1987) ]; State v. Robinson, 204 Conn. 207, 211, 527 A.2d 694 (1987). In resolving the further question of whether such instructions were harmful beyond a reasonable doubt, we have applied a bifurcated standard of review. ' " 'Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, "we will closely scrutinize the court's instructions" on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court...