State v. Thurman

• Citation: 10 Conn.App. 302,523 A.2d 891
• Decision Date: 31 March 1987
• Docket Number: No. 3383,3383
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Charles THURMAN.

Page 891

523 A.2d 891

10 Conn.App. 302

STATE of Connecticut v. Charles THURMAN.

No. 3383.

Appellate Court of Connecticut.

Argued Dec. 2, 1986.

Decided March 31, 1987.

Motion for reargument pending.

Eugene J. Riccio, Public Defender, for the appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on the brief, were Dennis Santore State's Atty., and Mary K. Miller, Legal Intern, for the appellee (State).

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

DUPONT, Chief Judge.

After a trial to a jury, the defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59(a)(1). On appeal from the judgment of conviction, the defendant challenges the trial court's charge to the jury. The defendant claims that the trial court erred (1) by failing to instruct the jury that it could draw no unfavorable inferences from the defendant's failure to testify in his own behalf at trial, (2) by failing to define certain terms contained in the charge regarding the defense of lack of criminal responsibility by reason of mental disease or defect, and (3) by failing to provide an unambiguous and adequate instruction on the defense of diminished capacity.

The jury could have reasonably found certain facts. The victim of the assault was married to, but separated from, the defendant at the time of the incident. The couple had an infant son who was in the victim's care and custody. The defendant was frustrated at not being able to see his child. Prior to the incident, the defendant had made numerous threats in the presence of others indicating that he would kill or hurt the victim.

On June 19, 1983, the defendant went to the victim's residence to dissuade her from pursuing divorce proceedings. Upon his arrival, the victim summoned the police. When a patrol car arrived, the defendant became upset and pulled out a knife. He grabbed the victim by the hair and stabbed her in the head and facial area. While the victim was on the ground, the defendant stabbed her in the back of her neck.

The defendant subsequently went into the victim's house to retrieve his infant son. He returned to the victim, kicked her in the face, and told the baby that he had "killed his fucking mother." The defendant was ultimately restrained by additional police officers and taken into custody. As a result of the defendant's attack, the victim suffered multiple stab wounds in the neck and posterior pharynx, severe injury to the spinal cord and extensive laceration from the face to the neck.

The defendant did not testify at his trial. His defense consisted of the testimony of two expert witnesses. ¹ A neuropsychologist who had examined the defendant and conducted a series of neuropsychological tests prior to trial testified that the defendant suffered from brain damage. The neuropsychologist revealed that as a result of the brain damage, the defendant's visual motor ability and skills were impaired and were equivalent to that of a six year ten month old child. The neuropsychologist further testified that she had found the defendant's IQ to be in the borderline mentally retarded range, and that his emotional level was that of a six or seven year old child. She concluded that the defendant acted on a very impulsive primitive level.

The defendant's second expert witness qualified as both a psychiatrist and a neurologist. He testified that he had conducted a complete neurological and psychiatric evaluation of the defendant, and that the results indicated that the defendant had limited intellectual functioning. On the basis of his examination, this expert witness concluded that the defendant suffered from "intermittent explosive disorder," a condition which prevented the defendant from controlling violent impulses. In addition, he testified that the defendant suffered from organic mental disorder resulting from brain damage. The expert witness concluded that, in his opinion, the defendant's organic mental disease rendered the defendant substantially incapable of conforming his behavior to the requirements of law.

In rebuttal, the state introduced the expert testimony of a psychiatrist who also had examined the defendant prior to trial. The state's psychiatrist testified that, in his opinion, the defendant did not manifest the symptoms of intermittent explosive disorder, and that he functioned at a level well beyond that of a seven year old. Although the psychiatrist agreed that the defendant was brain damaged and troubled, he concluded that the defendant had the capacity to appreciate the wrongfulness of his conduct at the time of the incident.

I

In his first claim of error, the defendant alleges that the trial court erred in failing to instruct the jury pursuant to General Statutes § 54-84(b). That statute provides in relevant part that "[u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify." The defendant neither requested a charge on the statute, nor did he take an exception to the trial court's failure to give it.

Our analysis of the defendant's claim necessarily involves three stages of inquiry. " ' Is the defendant entitled to raise this claim when he did not raise it at trial? If this claim is properly here, was the instruction given by the trial court erroneous? If the instruction was in error, was the error harmless?' " State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986), quoting State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985).

The defendant's challenge to the trial court's failure to include the statutorily mandated instruction is two-fold. First, he claims that such failure violated his constitutional rights guaranteed under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ² In addition, he alleges that the omission of the instruction violated his rights under General Statutes § 54-84(b). The state maintains that both of the defendant's claims are unreviewable because of his failure to submit a request to charge or to except to the charge as given. We conclude that the defendant's constitutional claim is reviewable under State v. Evans, 165 Conn. 61, 70-71, 327 A.2d 576 (1973), and that his second statutory claim is reviewable under the plain error doctrine.

Because our cases have not been uniform in defining the proper standards in an Evans claim; compare, e.g., State v. Cosby, 6 Conn.App. 164, 504 A.2d 1071 (1986), with State v. Newton, 8 Conn.App. 528, 513 A.2d 1261 (1986); we here clarify our formulation. We "must ask a series of questions when an Evans claim is made and answer each in the affirmative before continuing to the succeeding question." State v. Newton, supra, 531, 513 A.2d 1261. "The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." Id.

First, does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? This question looks solely to whether the label which the defendant places on the claim is constitutional in nature.

Second, is the defendant's constitutional claim adequately supported by the record? This question requires that we review the record in a limited way and determine, on the basis of that limited review, whether the defendant's claim is truly of constitutional proportions or is simply characterized as such by the defendant. In those instances in which our Supreme Court or this court has already clearly indicated that the particular claim is or is not of constitutional proportions and therefore reviewable or not reviewable, a summary "yes" or "no" answer may be sufficient.

Third, "was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant?" State v. Newton, supra. This question requires that we fully review the defendant's claim to determine whether a fundamental constitutional right of his was violated.

Fourth, "did the deprivation deny the defendant a fair trial, thereby requiring" that his conviction be set aside? Id. This question requires that we determine, under appropriate standards of harmless error or other similar doctrines, whether the error requires reversal.

In State v. Boulware, 183 Conn. 444, 441 A.2d 1 (1981), our Supreme Court held that a claim alleging a deprivation of a constitutional right resulting from the trial court's failure to include the "no adverse inference" instruction is reviewable under the familiar Evans bypass because "it amounts to a claim that the defendant was deprived of a fundamental constitutional right and a fair trial and the record is sufficiently complete for us to consider the claim on the merits. State v. Evans, [supra, 165 Conn. at 70-71, 327 A.2d 576]." State v. Boulware, supra, 446, 441 A.2d 1. ³ Thus, we answer, in a summary fashion, the first two questions of our formulation with a "yes."

Since the defendant's constitutional claim is reviewable under State v. Evans, we now consider whether the instruction given by the trial court was erroneous. We note that our federal and state constitutions afford the defendant the right to have the court instruct the jury that no adverse inferences may be drawn from his failure to testify only upon the defendant's proper request. Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121, 67 L.Ed.2d 241 (1981); State v. Boulware, supra, 183 Conn. at 447, 441 A.2d 1. Thus, when a defendant requests such a charge, the trial court has a constitutional obligation to include it. State v. Cohane, 193 Conn. 474, 482-83, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); State v. Carrione, 188 Conn. 681, 683-84, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S.Ct. 1775, 76 L.Ed.2d 347 (1983). When no request is made by the defendant, however, the court has no such...