State v. Vasquez

• Decision Date: 19 August 1980
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Delio VASQUEZ.

Page 424

438 A.2d 424

182 Conn. 242

STATE of Connecticut v. Delio VASQUEZ.

Supreme Court of Connecticut.

Argued June 5, 1980.

Decided Aug. 19, 1980.

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, was David Kaplan, Asst. Public Defender, Hartford, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., for appellee (state).

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

ARTHUR H. HEALEY, Justice.

The single issue on this appeal is whether the trial court erred in its instructions to the jury regarding the manner in which they should ascertain the defendant's state of mind or intent. In his brief and in oral argument before us, the defendant's counsel abandoned all other issues preliminarily raised.

The defendant Delio Vasquez was charged in a substituted information in four counts with burglary in the third degree in violation of General Statutes § 53a-103, ¹ possession of burglary tools in violation of General Statutes § 53a-106, ² larceny in the fourth degree in violation of General Statutes § 53a-125 ³ and interfering with a police officer in violation of General Statutes § 53a-167a. ⁴ He pleaded not guilty to each of those charges and elected to be tried by a jury, which returned a verdict of guilty on each count. The defendant has appealed from the judgment rendered on the verdict.

The jury could reasonably have found the following facts: On October 25, 1978, at about 10 a. m., Officer John Zarbo received a radio broadcast that three or four black males were tampering with a motor vehicle opposite the railroad station on Union Avenue in New Haven. Zarbo and Officer Frank Cathey, seated in separate squad cars, responded. Zarbo, who reached the scene before Cathey, drove slowly down the street and observed a black male leaning up against a wall next to a red Plymouth, and a Puerto Rican male, whom he later identified as the defendant, inside the car. The defendant then ducked down and exited the vehicle by the passenger door. The suspects began running, ducking into a sidewalk leading into the "projects" known as Church Street South. The police pursued the suspects and, with the assistance of additional police officers, arrested them.

A search of the defendant's person upon arrest revealed a set of vice grips, a pair of gloves and a coat hanger. The defendant was warned of his constitutional rights, handcuffed, placed in the back of a police cruiser and transported back to the red Plymouth on Union Avenue. The police observed that the Plymouth's rear window had been smashed in and that its passenger door was unlocked. A tape cassette player, later identified as belonging to the owner of the Plymouth, was lying on the sidewalk next to the car and the wiring under the Plymouth's dashboard was ripped and frayed.

At this point Cathey attempted to talk to the defendant in the back seat of Zarbo's cruiser. When the defendant protested that he did not speak English, Cathey tried Spanish. The defendant soon became abusive and belligerent and began to thrash about, kicking Cathey in the legs. He was restrained and later transferred to the police wagon.

The defendant claims that the court's instructions to the jury on the element of intent violated his constitutional right to due process of law and to a fair trial under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and State v. Harrison, 178 Conn. 689, 425 A.2d 111 (1979). He claims that it is reasonably possible that the jury could have interpreted the instructions given as creating either (1) a conclusive presumption on the element of intent or, (2) a presumption that shifted to the defendant the burden of disproving criminal intent. Ordinarily, we would refuse to review error claimed in the instructions to the jury where, as here, no exception was taken in the trial court. Practice Book, 1978, § 3063. Because the error claimed falls within the "exceptional circumstance" rule of State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), however, we will review the error despite the lack of objection and exception below. See State v. Arroyo, 180 Conn. 171, 429 A.2d 457 (1980); State v. Cook, 174 Conn. 73, 75-76, 381 A.2d 563 (1977).

The precise statement from the court's instructions on intent to which the defendant objects and upon which he bases his appeal is: "The person is presumed to have intended to do the acts which he did do." ⁵ This language appeared in a general instruction on intent, the court having instructed later more specifically on the type of intent required for the crimes charged. In reviewing instructions to the jury the court looks to the charge as a whole, and will not sever one portion and analyze it in isolation from the rest. State v. Harrison, 178 Conn. 689, 691, 425 A.2d 111 (1979); State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); see Cupp v. Naughton, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). In analyzing this type of claim in Sandstrom v. Montana, supra, the Supreme Court pointed out that careful attention must be given to the words actually spoken to the jury, "for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, supra, 442 U.S. 514, 99 S.Ct. 2454.

In Sandstrom, the defendant was tried in the state court for murder. Although he admitted killing the victim he defended on the ground that he lacked the mental capacity to have "purposely and knowingly" killed her and was, therefore, guilty of a lesser crime. He was, nevertheless, convicted of deliberate homicide. On certiorari to the United States Supreme Court, the petitioner challenged the constitutionality of the trial court's instruction that "(t)he law presumes that a person intends the ordinary consequences of his voluntary acts." Sandstrom v. Montana, 442 U.S. 510, 512, 99 S.Ct. 2450, 2454, 61 L.Ed.2d 39 (1979). The Supreme Court held in a unanimous decision that the instruction was unconstitutional as violative of the due process clause of the fourteenth amendment, which places upon the state the burden of proving beyond a reasonable doubt every essential element of a criminal offense. This holding was premised on the court's conclusion that a reasonable juror could have interpreted the language objected to as creating a conclusive presumption, ⁶ which would conflict with the overriding presumption of innocence, and invade the fact-finding province of the jury; see United States v. United States Gypsum Co., 438 U.S. 422, 435, 446, 98 S.Ct. 2864, 2872, 2878, 57 L.Ed.2d 854 (1978); Morissette v. United States, 342 U.S. 246, 274-75, 72 S.Ct. 240, 255, 256, 96 L.Ed. 288 (1952); or as a presumption, which, although not conclusive, had the effect of shifting impermissibly the burden of persuasion to the defendant "to prove that he lacked the requisite mental state." Sandstrom v. Montana, supra, 442 U.S. 524, 99 S.Ct. 2459; see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

In State v. Arroyo, supra, which involved a Sandstrom claim, we cautioned against oversimplification of the court's holding in that case by stating: "Sandstrom does not invalidate the use of all inferences and presumptions with regard to criminal intent. To the contrary, the court took care to incorporate its analysis of inferences and presumptions in an opinion issued two weeks earlier; Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); where it sanctioned the use of 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.' Ulster County Court, supra, 157(, 99 S.Ct. 2224-2225.) Clearly, the use of the word 'presumes' is not in and of itself what rendered the charge in Sandstrom invalid. It was the 'lack of qualifying instructions as to the legal effect of the presumption'; Sandstrom, supra, (442 U.S. 517, 99 S.Ct. 2456, 61 L.Ed.2d) 46; in addition to the use of the word 'presumes,' which rendered it possible that a reasonable jury could have interpreted the instruction as either a conclusive or burden-shifting presumption, thereby depriving the defendant of his right to due process of law. Id." State v. Arroyo, supra, 180 Conn. 177, 429 A.2d 457. The question presented by this appeal, then, is whether in light of the whole charge, a reasonable juror could have interpreted the language objected to as creating either a conclusive or a burden-shifting presumption, thereby depriving the defendant of his right to due process of law.

We have carefully examined the whole charge and have concluded that the defendant was not denied due process of law. Although the term "presumed" was not specifically defined by the trial judge, ⁷ the terms "infer" and "inference" were specifically and repeatedly explained in permissive terms. Just prior to giving that portion of the charge objected to, the court instructed the jury at length on circumstantial evidence, which it said was "an important factor in this case," and the inferences the jury could draw therefrom. ⁸ After the instruction relating to the presumption, the court stated: "So you may draw whatever inferences you find to be reasonable from the action. To draw inferences is not only the privilege but the duty of the jury, provided the inference is a reasonable one." (Emphasis added.) Later in the charge on intent the court stated: "Whether the criminal intent existed at the time of the commission of the alleged criminal act must of necessity be inferred and found from other facts which in their nature are the subject of specific proof, and for this reason, other constituents of the crime being proved, it will be left for you to determine from...