State v. Truppi

• Citation: 182 Conn. 449,438 A.2d 712
• Court: Supreme Court of Connecticut
• Decision Date: 16 December 1980
• Parties: STATE of Connecticut v. George E. TRUPPI.

Page 712

438 A.2d 712

182 Conn. 449

STATE of Connecticut v. George E. TRUPPI.

Supreme Court of Connecticut.

Argued Oct. 9, 1980.

Decided Dec. 16, 1980.

Suzanne Zitser Gottlieb, Asst. Public Defender, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and Joette Katz Rubin, Asst. Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty. and Walter D. Flanagan, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

COTTER, Chief Justice.

After a trial to the jury the defendant was convicted on a four count information of the crimes of sexual assault in the first degree, General Statutes § 53a-70(a)(2); assault in the first degree, General Statutes § 53a-59(a)(1); robbery in the first degree, General Statutes § 53a-134(a)(1); and kidnapping in the second degree, General Statutes § 53a-94(a). The court imposed separate sentences under each count, to run consecutively. The defendant claims error in an instruction on intent and in the consecutive sentences for assault and robbery.

The jury could reasonably have found the following facts. Early in the morning of December 3, 1977, the defendant came up behind the female victim as she was putting the key into the backdoor of her house in Bridgeport; put a gun to her head; and told her that he needed a driver. Thereupon, he pushed her into his car and told her to drive. While she drove his automobile he pointed the gun at her head. After some time he ordered her to stop, get out of the car, and accompany him to a wooded area of the Brooklawn Country Club golf course in Fairfield. Then he ordered her to remove all her clothing and sexually assaulted her. Thereafter he told her to turn on her stomach and he began searching her pocketbook. Suddenly she felt a thud on her back, turned over, began to fight back, felt a cut in her arm, and blacked out. The defendant stabbed her fourteen times and took $200 from her wallet. The foregoing events occurred during the span of approximately an hour and a half.

I

The defendant claims that the court's instructions to the jury violated his constitutional right to due process by shifting to him the burden of proof of intent, contrary to the holdings in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), State v. Arroyo, 180 Conn. 171, 429 A.2d 457 (1980), and State v. Harrison, 178 Conn. 689, 425 A.2d 111 (1979).

Before instructing the jury regarding the elements of the four crimes with which the defendant was charged and the specific criminal intents required for assault in the first degree, robbery in the first degree, and kidnapping in the second degree, the court gave the following instruction which the defendant claims unconstitutionally shifted the burden of proof to him. "Now, in the usual case, the State of Connecticut does not have to offer evidence to prove that a man charged with a crime actually had a guilty intent or guilty knowledge. This is because a man is presumed to have intended to do the acts which he did do. Accordingly, until some credible evidence comes into the case tending to prove that, because in the light of the circumstances as he honestly and in good faith believe (sic) them to be, the act which he did would appear to be lawful or because the act was an accident, the State may safely rely upon the presumption that the accused intended to commit the acts which he did commit. Until such evidence appears in the case, the jury must presume that the accused intended to commit such acts as the jury may find that he did commit and accordingly find that the requisite guilty intent was present if as a matter of fact it is shown that the acts done by the accused were in fact unlawful." ¹

Sandstrom held that in a case where intent is an element of the crime charged, instructions which a reasonable jury could believe required them to apply a burden-of-persuasion-shifting or conclusive presumption "that a person intends the ordinary consequences of his voluntary acts" violate a defendant's right to due process of law. Sandstrom, supra, 442 U.S. 512, 515, 517, 99 S.Ct. 2453, 2454, 2455. Unlike the instruction in Sandstrom, the foregoing instruction explicitly stated that the presumption would vanish when some credible contrary evidence came into the case. Hence, reasonable jurors could not have viewed this instruction as conclusive respecting the element of intent. In addition, the challenged passage concerned intent to do the act ² committed, not intent to effect "the ordinary consequences of his voluntary acts." Sandstrom, supra, 513, 99 S.Ct. 2453.

II

The trial court avoided the "ambiguous and elastic" terms "intent" ³ and "act" in the unchallenged portion of the instructions specifically related to sexual assault in the first degree. ⁴ Thus the general instructions were in no way incorporated by reference into those instructions. Consequently the jury would not have applied the challenged passage in arriving at their verdict on sexual assault. In such an event even patent Sandstrom error would be harmless. Smith v. State, 244 Ga. 814, 821, 262 S.E.2d 116 (1979); State v. Sunday, Mont., 609 P.2d 1188, 1196 (1980); see also Krzeminski v. Perini, 614 F.2d 121, 126 (6th Cir. 1980). Because the defendant does not challenge the remainder of the court's charge on sexual assault we assume that it was adequate and legally correct. Katsetos v. Nolan, 170 Conn. 637, 658, 368 A.2d 172 (1976); State v. LaBreck, 159 Conn. 346, 348, 269 A.2d 74 (1970). Moreover the defendant failed to make the proper objections and exceptions to the portions of the court's charge he now claims were erroneous.

"Only the most exceptional circumstances will save a claim, constitutional or otherwise, from the fatal consequences of a defendant's failure to make a timely objection." State v. Baker, --- Conn. ---, ---, 437 A.2d 843 (1980); State v. Arroyo, 180 Conn. 171, 429 A.2d 457 (1980); State v. Briggs, 179 Conn. 328, 330, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

Under these circumstances we decline to exercise the discretion, provided in Practice Book, 1978, § 315, to review the defendant's belated claim of error as it relates to his conviction for sexual assault.

III

Unlike the instructions given on sexual assault, the instructions specifically relating to the three remaining crimes, each of which required proof of a specific intent, incorporated the court's general instruction on intent. Because a reasonable jury may have believed that the "requisite guilty intent" referred to the specific intent required in each of the three remaining crimes charged in the information, we follow our past practice in reviewing post-trial Sandstrom claims relating to narrow classes of crimes requiring heightened culpability. State v. Vasquez, --- Conn. ---, ---, --- A.2d ---- (42 Conn.L.J., No. 8, pp. 36, 37) (1980); State v. Maselli, --- Conn. ---, ---, 437 A.2d 836 (1980); State v. Arroyo, supra; see United States v. Bailey, 444 U.S. 394 403, 405, 100 S.Ct. 624, 630, 632, 62 L.Ed.2d 575 (1980).

An "entirely permissive inference or presumption, which allows-but does not require-the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant, ... (does not violate due process unless) there is no rational way the trier could make the connection permitted by the inference." Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979); Arroyo, supra, 180 Conn. at 175, 429 A.2d 457.

Unless cured, however the portion of the instruction quoted by the defendant may have had an impact on the defendant's remaining convictions similar to the instruction in Harrison, supra, which "clearly shifted to the defendant the burden of proof on the element of intent and directed the jury to find criminal intent from the actions proved unless the defendant satisfied his 'burden of proof.' " Vasquez, supra, --- Conn. at ---, --- A.2d ----. In effect, this portion indicated to the jury that they could convict the defendant without evidence that the defendant actually had a guilty intent. Thus, the explicit burden-shifting clause made this portion of the instruction more offensive in some respects than Sandstrom. Harrison, supra, 178 Conn. at 696, 425 A.2d 111. Its rebuttable character and the absence of explicit "consequences" language, however, render it less egregious in other ways. Nevertheless, if the jury received no other instruction on intent, they reasonably may have thought that the presumption was mandatory. In an effort to comply with that understanding they may have applied a rebuttable and burden-shifting presumption to find the specific intent necessary for each of the defendant's convictions on those counts.

Neither Sandstrom nor Ulster County Court v. Allen closely scrutinized mandatory rebuttable presumptions. Allen, however, indicated that it may be proper to analyze a mandatory rebuttable presumption as a permissible inference if it merely imposes on the defendant an extremely low burden of production which can be satisfied by "any" evidence. Allen, supra, 442, 157-58 n.16, 99 S.Ct. 2224. In this case the low burden of producing "some credible evidence" would have satisfied the defendant's burden of production. The defendant, however, neither took the stand, offered any witnesses, nor suggested a theory of defense in cross-examination or otherwise. Thus, unless the state introduced credible evidence which rebutted the presumed intent, the jury could have concluded that it must find against the defendant on the issue of intent even though the state had not otherwise proven intent beyond a reasonable doubt. Such an interpretation would have...