State v. Trotter, MV

• Decision Date: 27 January 1967
• Docket Number: No. MV,MV
• Citation: 230 A.2d 618,4 Conn.Cir.Ct. 185
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. William M. TROTTER. 17-10335.

Page 618

230 A.2d 618

4 Conn.Cir.Ct. 185

STATE of Connecticut v. William M. TROTTER.

No. MV 17-10335.

Circuit Court of Connecticut, Appellate Division.

Argued Nov. 21, 1966.

Decided Jan. 27, 1967.

Howard R. Steeg, Bristol, for appellant (defendant).

Robert P. Sneideman, Prosecuting Atty., for appellee (state).

LEVINE, Judge.

In a trial to the jury, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor and of reckless driving, in violation of §§ 14-227a and 14-222 of the General Statutes. His appeal assigns error in the denial of his motion for a directed verdict, in the failure to charge the jury on his right to counsel, and in the court's conclusion that the defendant's constitutional right were not violated. The appeal was submitted upon an agreed statement of facts which was approved by the court rather than upon the usual finding in a jury case providing the claims of proof of the parties. There is nothing in the record to indicate that a motion for a directed verdict was made. In fact, the evidence discloses that the defendant made a 'motion to dismiss on the following grounds' at the conclusion of the state's case and thereafter, on the denial of the motion, proceeded to submit evidence. A motion for a directed verdict may be submitted only when hte case is ready to be committed to the jury by the court. Practice Book § 480. This means that both sides must rest and neither thereafter can submit evidence. In this case, after his motion to dismiss was denied, the defendant submitted his complete defense, including two witnesses and two exhibits. The defendant's titling of the motion as one for a directed verdict is not sufficient to change the motion from its real nature as a motion to dismiss, the denial of which is not appealable. The claim of error with respect to the charge cannot be considered since the defendant failed to submit any requests to charge, made no objections, and took no exception at the conclusion of the charge. Practice Book § 249; Antz v. Coppolo, 137 Conn. 69, 73, 75 A.2d 36; State v. Buteau, 136 Conn. 113, 125, 68 A.2d 681; Albrecht v. Rubinstein, 135 Conn. 243, 246, 63 A.2d 158, 7 A.L.R.2d 1022.

The last claim of error is directed to the denial of the defendant's constitutional right to an attorney. The facts agreed upon disclose that the defendant was arrested December 19, 1965, in the city of Bristol, for the two offenses previously enumerated, at about 6:07 p.m. and was at that time orally advised of his right to counsel and his right to remain silent. He was then taken to the Bristol police station at 6:15 p.m. and sometime after his arrival there requested the right to telephone counsel on more than one occasion. The officer replied that the defendant could call his lawyer when he was through with him. Thereafter, at 7:05 p.m., tests were performed on the defendant and an alcohol influence report filled out. At 7:30 p.m. the defendant was given a uniform traffic ticket, and at 7:40 p.m. he signed the WA 1 form, which acknowledged that he had been advised of his constitutional rights.

The defendant failed to address motions to the verdict as is required in a criminal case tried to the jury. The appeal may not be taken from the verdict; rather error may be assigned in the action of the trial court on motions directed to the verdict such as a motion to set aside the verdict, a motion for judgment non obstante veredicto or a motion in arrest of judgment. Practice Book §§ 600, 1023; State v. Schofield, 114 Conn. 456, 459, 159 A. 285; State v. Frost, 105 Conn. 326, 331, 135 A. 446; State v. McCoy, 4 Conn.Cir.Ct. 109, 115, 226 A.2d 116; State v. Butrewich, 3 Conn.Cir.Ct. 352, 214 A.2d 489; Maltbie, Conn.App.Proc. §§ 181, 182, 201, 207. Had the defendant made a motion for a directed verdict as he claims, its denial could be reviewed only by his making the further motion to set aside the verdict. H. Wales Lines Co. v. Hartford City Gas Light Co., 89 Conn. 117, 126, 93 A. 129; see Practice Book §§ 255, 800.

The question of the defendant's constitutional rights should have been raised by a motion to suppress illegally obtained evidence or by objection to the introduction of evidence allegedly obtained in violation of his constitutional right to an attorney. Since, however, the state has seen fit to agree to a statement of facts and to agree further that the only matter involved in this appeal is the defendant's constitutional right to an attorney, we shall consider the question.

The case was tried May 20, 1966, and therefore does not come within the principles enumerated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, since it was prior to June 13, 1966, the date from which Miranda is applied prospectively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Such rights as this defendant is entitled to are set forth in Escobedo v. State of Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977, which holds that 'where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively...