State v. Tinsley

• Decision Date: 09 July 1991
• Docket Number: No. 8122,8122
• Citation: 591 A.2d 448,24 Conn.App. 685
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Larry TINSLEY.

Page 448

591 A.2d 448

24 Conn.App. 685

STATE of Connecticut v. Larry TINSLEY.

No. 8122.

Appellate Court of Connecticut.

Argued Dec. 12, 1990.

Decided May 28, 1991.

Certification Denied July 9, 1991.

Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief, were G. Douglas Nash, Public Defender, and Joseph G. Bruckmann, Asst. Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and John C. Smriga, Asst. State's Atty., for appellee (State).

Before SPALLONE, FOTI and LAVERY, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of the General Statutes § 53a-60(a)(2), criminal possession of a pistol in violation of General Statutes § 53a-217(a), and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37(b). The defendant claims that (1) the trial court's instructions on inferences and circumstantial evidence violated his federal and state constitutional rights to due process of law and (2) the trial court's instruction on assault violated his federal and state constitutional rights to due process of law. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At about 8 p.m. on June 29, 1987, three brothers, Mark, Michael and Joseph Tracy, were walking through an alley near their home in Bridgeport. When they entered the alley, they saw the defendant and two other males at the opposite end. As the two groups approached the middle of the alley, the defendant pulled a gun, cocked it, and told the Tracys not to move. One of the other males hit Joseph in the arm with a black bag and the third attempted to remove a gold chain from Joseph's neck. Joseph ran to the end of the alley, turned to see his brother Michael running toward him and saw the defendant shoot Michael in the hand. Mark, who was still standing in the alley, also saw the defendant shoot Michael. After the shooting, Mark ran home and Joseph called the police from an emergency call box. Michael stayed by the call box holding his wounded hand while Joseph ran home to get their mother. When Joseph returned, the police and an ambulance had arrived. Michael was taken to the hospital where he was treated for the bullet wound. Joseph and Mark accompanied Officer Travis James, a Bridgeport policeman, in a police cruiser to look for the assailants. The officer, Joseph and Mark cruised the Beardsley Terrace Housing project until Joseph identified the defendant, who was leaning against a truck, as his brother's assailant. Mark also recognized the defendant. Upon seeing the police cruiser, two other individuals standing with the defendant ran behind a building and the defendant walked to a pickup truck. James exited his patrol car and walked toward the defendant. As he approached, the officer saw the defendant place a hat in the bed of the truck. James frisked the defendant but found no weapon. The defendant then reached for his hat and as he did James grabbed for the hat. James felt an object in the hat and wrestled it away from the defendant. The object was a gun that contained one spent shell in the chamber and an empty clip. The officer then brought the defendant to the patrol car, where both Mark and Joseph identified him as the man who had had the gun and shot Michael.

I

The defendant's first claim is that the court's instructions on circumstantial evidence and the inferences drawn therefrom were defective in that they imposed on the defendant the burden of proving certain inferences beyond a reasonable doubt, thereby diluting the state's burden of proof. The defendant concedes that he did not properly preserve this claim at trial, but argues that because his claim implicates a fundamental constitutional right it is, nevertheless, reviewable under the Evans- Golding doctrine. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

In Golding, our Supreme Court reformulated the test of reviewability in Evans. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim "only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis omitted.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823. When any one of these conditions is not met, the defendant cannot prevail. Id., at 240, 567 A.2d 823. The reviewing court is, therefore, free to focus its attention on whichever element is most relevant to the circumstances before it. Id. If on review any one of these conditions is found to be absent, the defendant's claim will fail. Id. We conclude that the defendant's claim cannot prevail because the state has met its burden of demonstrating that the alleged constitutional violation was harmless beyond a reasonable doubt.

The jury charge at issue was given as follows: "Circumstantial evidence is offered to prove a certain fact from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of the law are satisfied. One that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt.... Secondly, you must be satisfied that the fact to be inferred has been proved beyond a reasonable doubt...." The court did not instruct the jury to differentiate between circumstantial evidence offered by the state and circumstantial evidence offered by the defendant.

In challenging this jury charge, the defendant, in essence, is seeking a separate instruction to apprise the jury that he may rely on circumstantial evidence for his defense, and that facts inferable from that evidence need be only reasonable and logical. This challenge is at bottom the same as challenges recently raised and decided by the Supreme Court in State v. Ortiz, 217 Conn. 648, 667-69, 588 A.2d 127 (1991), and by this court in State v. Rivera, 24 Conn.App. 670, 591 A.2d 440 (1991) and State v. Willis, 24 Conn.App. 678, 591 A.2d 445 (1991). In both Ortiz and Rivera it was held that such an additional instruction had the potential of misleading a jury and diluting the burden borne by the state to prove every element of the crime charged beyond a reasonable doubt. In Willis, we declined review because the claim was not preserved and failed under the fourth prong of Golding.

In this case, the jury was properly instructed as to the presumption of innocence afforded the defendant and the burden was squarely placed on the state to prove every element of the crime beyond a reasonable doubt. The state's case, for the most part, was dependent on the issue of identification and the credibility of the witnesses. The charge did not dilute the burden of proof placed on the state but rather increased it. State v. James, 211 Conn. 555, 581, 560 A.2d 426 (1989). The defendant bore no burden of proof and there is no reasonable possibility that the jury was misled. State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S.Ct. 1775, 76 L.Ed.2d 347 (1983). Although the court was incorrect in charging that each fact leading to an inference must be proven beyond a reasonable doubt this error was harmless beyond a reasonable doubt. State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1079, 99 L.Ed.2d 238 (1988). The defendant's claim does not meet the fourth prong of Golding, and we decline to review it.

II

The defendant next claims that because there was no supporting evidence to establish that the defendant caused physical injury by means of a deadly weapon to anyone other than Michael Tracy, the trial court should not have instructed the jury on alternative forms of committing assault as set forth in General Statutes § 53a-60(a)(2). ¹ Before taking up the merits of the defendant's claim we must again address the issue of reviewability because the defendant did not file a request to charge nor did he except to the charge when given. State v. Williams, 202 Conn. 349, 362-63, 521 A.2d 150 (1987).

It is clear that the defendant's claim is reviewable under the Evans- Golding bypass doctrine because...