State v. Townsend

• Decision Date: 22 March 1988
• Docket Number: No. 13175,13175
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John D. TOWNSEND.

Page 114

539 A.2d 114

206 Conn. 621

STATE of Connecticut v. John D. TOWNSEND.

No. 13175.

Supreme Court of Connecticut.

Argued Feb. 4, 1988.

Decided March 22, 1988.

Jon C. Blue, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Mary H. Lesser, Deputy Asst. State's Atty., with whom, on the brief, were Kevin McMahon and James G. Clark, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, GLASS, COVELLO and HULL, JJ.

PER CURIAM.

The defendant, John D. Townsend, appeals from his conviction, after a trial by jury, of the crime of robbery in the first degree in violation of General Statutes §§ 53a-133 ¹ and 53a-134(a)(4). ² As a consequence of this conviction, the defendant pled guilty to the charge of being a persistent dangerous felony offender under General Statutes § 53a-40(a). ³ We find no reversible error in the defendant's robbery conviction.

The jury could reasonably have found the following facts. On the evening of August 14, 1985, the defendant entered a Windsor convenience store. Brandishing a gun, he forced a clerk to open the store's cash drawer, whose contents he appropriated, and to hand over bags of money kept under the store counter. Some days later, the defendant returned to the store at a time when the clerk was there with another employee. The clerk told her fellow worker that the defendant was the person who had robbed her.

At the defendant's trial, the state offered only two witnesses. The clerk testified about the circumstances of the crime and made an in-court identification of the defendant as the person who had committed the robbery. Over objection by the defendant, Windsor police detective John Parlapiano, Jr., testified that he had shown the clerk eight color photographs from which she had selected that of the defendant as depicting the man who had robbed her. The defendant neither testified nor put on any other testimony in his own behalf.

The trial court denied motions of acquittal filed by the defendant both at the end of the state's case and after the jury's verdict finding him guilty of robbery as charged. On appeal, the defendant alleges that the trial court erred: (1) in permitting Parlapiano's testimony concerning the clerk's out-of-court photographic identification of the defendant; (2) in instructing the jury about the defendant's failure to testify; and (3) in instructing the jury about the charge of larceny.

The defendant's challenge to Parlapiano's testimony concerning the clerk's out-of-court photographic identification of the defendant cannot be sustained in light of our recent decision in State v. Weidenhof, 205 Conn. 262, 533 A.2d 545 (1987). There, as here, the victim of a crime made an in-court identification that was corroborated by a police officer's testimony of an out-of-court identification consisting of the victim's selection of the defendant's picture from a photo array. Relying on State v. McClendon, 199 Conn. 5, 11, 505 A.2d 685 (1986), and State v. Frost, 105 Conn. 326, 341, 135 A. 446 (1926), we held that such testimony comes within an exception to the hearsay rule for testimony that is reliable and can be tested by cross-examination of the relevant witnesses. State v. Weidenhof, supra, 205 Conn. at 274, 533 A.2d 545. There, as here, "[t]he defendant has not challenged the underlying reliability of the victim's out-of-court identifications and had ample opportunity to cross-examine both the victim and [the police officer]." Id.

The defendant next contests the propriety of the trial court's instruction to the jury concerning the defendant's failure to testify. In such circumstances, General Statutes § 54-84(b) requires a court, in the absence of a contrary request by the accused, to instruct the jury "that they may draw no unfavorable inferences from the accused's failure to testify." ⁴ Instead of using the statutory language verbatim, the trial court charged the jury: "I would warn you at this time that you can draw no inference, which means you cannot discuss or otherwise consider his reasons for not testifying." The defendant maintains that this instruction is fatally defective because the jury might have understood it as prohibiting only group discussion without forbidding any juror's private consideration of the defendant's decision not to testify. The state, while conceding that the court's departure from the literal mandate of § 54-84(b) was erroneous, urges us to hold the court's phraseology to be a minor and harmless deviation that does not constitute reversible error.

At the outset, we note that we have repeatedly held that a claim of trial court noncompliance with § 54-84(b) is reviewable on appeal even though a 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).

Judicial noncompliance with § 54-84(b) does not, however, automatically warrant a reversal and a new trial. 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. 322, 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, 500 A.2d 539; State v. Cobb, supra, 199 Conn. at 325, 507 A.2d 457; State v. Tatem, supra, 194 Conn. at 599, 483 A.2d 1087. 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).

Examining the charge in this case from this perspective, we conclude that the trial court's minor deviation from the literal wording of § 54-84(b) was harmless error. We are persuaded that it was not reasonably possible that the jury would have understood the court to be permitting any inferences whatsoever to be drawn from the defendant's failure to testify. If there was any latent ambiguity in the instruction forbidding either group discussion or individual consideration of the reasons for the defendant's not testifying, that ambiguity was dispelled by the very next sentence in the court's instructions, which reminded the jury: "Your determination must be made solely on the basis of whether or not the State has sustained its burden of proof, as previously discussed."

The defendant's final claim of error relates to the trial court's charge on larceny. Because robbery is the commission of larceny by force, the trial court was required to define the meaning of larceny for the jury. In so doing, the court read the statutory definition of larceny in General Statutes § 53a-119, without excising those parts that had no factual relevance to the present trial. The court thus instructed the jury that "[a] person commits larceny, when with intent to deprive another of property, or to appropriate the same to himself or a third person, he wrongfully takes, obtains, or withholds such property from an owner," even though there was no evidence of the involvement of a third person and only circumstantial evidence, if any, of the withholding of property. The defendant did not take an exception to this charge at trial.

We have repeatedly disapproved of a trial court's reading of an entire statute when the defendant has been formally charged under less than the statute as a whole. State v. Franko, 199 Conn. 481, 493, 508 A.2d 22 (1986); State v. Carter, 189 Conn. 631, 645, 458 A.2d 379 (1983). In this case, however, the information did not specify those aspects of the underlying charge of larceny on which the state was relying. The defendant has pointed to no prejudice attributable to the court's over-inclusive instruction which did not adversely...