State v. Washington

• Decision Date: 30 August 1988
• Docket Number: No. 6060,6060
• Citation: 546 A.2d 911,15 Conn.App. 704
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Harrison WASHINGTON.

Page 911

546 A.2d 911

15 Conn.App. 704

STATE of Connecticut v. Harrison WASHINGTON.

No. 6060.

Appellate Court of Connecticut.

Argued April 21, 1988.

Decided Aug. 30, 1988.

Syllabus by the Court

1. The defendant could not prevail on his claim that the trial court erred in including in its instructions to the jury that portion of the criminal attempt statute (§ 53a-49) that lists examples of conduct constituting a substantial step in the course of criminal conduct for the purposes of committing that crime; the instructions taken as a whole correctly presented the case to the jury and, to the extent that the examples given were not relevant to the facts here, the defendant did not meet his burden of showing that he was prejudiced by the charge given.

2. The defendant's claim that the trial court erred in its instructions to the jury with respect to the element of intent to cause serious physical injury was without merit.

3. The defendant's challenge to the trial court's instructions concerning conduct which, if corroborative of his criminal purpose, would constitute a substantial step toward the commission of an assault was unavailing; the charge given, viewed as a whole, gave the jurors a clear understanding of the elements of attempted assault and, although the trial court made a misstatement to the effect that such conduct was itself corroborative of his criminal purpose, it was not reasonably possible that that misstatement could have affected the jury's verdict.

4. The evidence presented was sufficient to establish that the defendant had the intent to cause the victim serious physical injury and that his conduct constituted a substantial step toward the commission of assault in the first degree.

Joette Katz, Public Defender, for appellant (defendant).

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Susan C. Marks, Deputy Asst. State's Atty., for appellee (State).

Before BIELUCH, STOUGHTON and NORCOTT, JJ.

NORCOTT, Judge.

After a trial to a jury, the defendant was found guilty of the crime of attempted assault in the first degree in violation of General Statutes §§ 53a-49 ¹ [15 Conn.App. 706] and 53a-59(a)(1) ² and was acquitted of a charge of first degree robbery. The defendant, in his appeal from the judgment of conviction, raises the following four claims of error: (1) whether the trial court's instructions deprived him of his constitutional rights by presenting for the jury's consideration theories of liability unsupported by the evidence; (2) whether the court failed to instruct the jury adequately on all the essential elements of General Statutes § 53a-59(a)(1); (3) whether the court's instruction with respect to General Statutes § 53a-49(b) unconstitutionally limited the jury in its role as factfinder of an essential element of the crime of attempted assault in the first degree; and (4) whether the state produced sufficient evidence to prove the defendant guilty of the crime of which he was convicted. We find no error.

From the evidence presented at trial, the jury could reasonably have found the following facts. At approximately 1:15 a.m. on October 24, 1986, Robert Dellarocco left a bar in Ansonia and began to walk to his boss' house where he intended to spend the night. While en route, Dellarocco met a man with whom he discussed the possibility of a drug purchase. Dellarocco followed the man into a nearby housing project where Dellarocco purchased $25 worth of cocaine. After the exchange, the two men separated.

As Dellarocco continued through the project on his way to his boss' house, he was confronted by an unknown black male and black female. The male approached him, placed a small, silver handgun to Dellarocco's head and demanded money. The woman began to rifle through Dellarocco's pockets whereupon Dellarocco grabbed the gunman's arm and began to struggle with him. During this struggle, the gun discharged once, striking no one. At this point, the man who had earlier sold Dellarocco the cocaine reappeared and joined the fray in an attempt to take the contents of Dellarocco's pockets. The struggle continued, and the gunman forced the handgun towards Dellarocco's midsection. Dellarocco heard a "click," which he took to be the sound of the hammer of the weapon being cocked. The confrontation ended when the woman yelled "police," and the assailants fled.

Ansonia police officer Richard Spataforte testified that sometime after midnight on the night in question, he responded to the sound of a gunshot which he believed came from the Olson Drive project. While investigating, he met Dellarocco who claimed that he had just been robbed of money, which had been folded in sequence in his pocket. Dellarocco told the officer that the man who had stolen the money was black and was wearing very thick eyeglasses. Spataforte put Dellarocco into his squad car and drove to the rear of the project where the defendant and a black female, Denise Glover, both known to Spataforte, approached the car. The two persons were being closely followed by two police officers. Upon seeing the defendant, Dellarocco exited the car and identified him as the gunman. Spataforte then arrested the defendant whom he described as wearing eyeglasses with extremely thick lenses. A search of the defendant's wallet revealed $108, $92 of which was folded in sequential order and the remainder of which was indiscriminately stuffed therein.

A second Ansonia police officer, Michael Abbels, also arrived at the project to investigate the report of the gunshot. While on foot, he observed the defendant and Glover moving toward him at a quick pace. Upon seeing the uniformed Abbels, the defendant ran into a building stairwell. Abbels testified that as he followed the defendant he observed him have a quick dialogue with two unknown persons in the vicinity of the second floor landing, and then continue to the third floor balcony where he appeared to hide something in a trash pile. The defendant then came back downstairs and, with Abbels and another Ansonia police officer following, walked toward Spataforte's squad car.

Abbels further testified at trial that he retraced the defendant's path up the stairwell and found an unexploded .38 caliber bullet with a dented primer on the second step and the remainder of a box of .38 caliber bullets in the trash pile on the third floor. The handgun was never located.

At trial, Abbels, who was qualified as an expert in firearms, testified as to the mechanics of firing a single action handgun and further testified that the dented primer on the recovered bullet was probably caused when an attempt to fire the bullet resulted in a misfire.

I

The defendant first claims that the trial court erred in reading General Statutes § 53a-49(b) in its entirety to the jury in an attempt to explain what types of conduct would constitute a "substantial step" in an overall course of conduct planned to culminate in the commission of a crime in violation of General Statutes § 53a-49(a)(2). The defendant maintains, inter alia, that only three of the examples listed under General Statutes § 53a-49(b) were potentially relevant to the evidence and that the jury was therefore misled and confused by improper instructions which invited them to consider theories of liability unsupported by the evidence. We disagree.

We first note that the defendant did not take an exception to this claimed instructional error at trial and that he seeks review under the "exceptional circumstances" doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Because the defendant's claim involves a question of the denial of his fundamental constitutional right not to be convicted except upon proof beyond a reasonable doubt of each and every element of the charged offense, we will afford this claim Evans review. See State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). "[Our Supreme] court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial." (Citations omitted.) Id.

The test to be applied to the review of alleged instructional error is whether "the charge considered as a whole presents the case to the jury so that no injustice will result." State v. Stevenson, 198 Conn. 560, 569, 504 A.2d 1029 (1986). In this case, reading the court's instructions as a whole, we find that the court correctly presented the case to the jury. In reading the text of General Statutes § 53a-49(b) to the jury, the court was merely illustrating what type of conduct could constitute a "substantial step" in an overall course of conduct planned to culminate in the commission of a crime. In fact, just prior to reading the text of the statute to the jury, the court informed them that "these are examples." Our Supreme Court has, in the past, approved of the practice of providing the jury with examples to help it to understand complex legal principles. State v. Kurvin, 186 Conn. 555, 569, 442 A.2d 1327 (1982). We have no doubt that the court's instructions in this case aided the jury in understanding the difficult concept of what constitutes a "substantial step." We further note that, to the extent the court's instructions were overinclusive, the defendant has not met the burden of showing how he was prejudiced by the charge. See State v. Townsend, 206 Conn. 621, 627, 539 A.2d 114 (1988). Reviewing the charge as a whole, we find that the trial court used the irrelevant statutory examples only as illustrations and not as various statutory bases of liability which were unsupported by the evidence for the jury to consider. Cf. State v. Williams, supra, 202 Conn. at 363, 521 A.2d 150.

II

The defendant's second claim of error is that the trial court failed to instruct the jury adequately on all the essential elements of General Statutes § 53a-59(a)(1). We, again, will afford Evans review to this...