State v. Williams

• Decision Date: 19 November 1991
• Docket Number: No. 14150,14150
• Citation: 599 A.2d 1053,220 Conn. 385
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Floyd WILLIAMS.

Page 1053

599 A.2d 1053

220 Conn. 385

STATE of Connecticut v. Floyd WILLIAMS.

No. 14150.

Supreme Court of Connecticut.

Argued Sept. 27, 1991.

Decided Nov. 19, 1991.

Suzanne Zitser, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty. and Henry J. Lyons, Asst. State's Atty., for appellee (state).

Before SHEA, CALLAHAN, GLASS, COVELLO and BERDON, JJ.

COVELLO, Justice.

This is the defendant's appeal from his conviction of one count of felony murder in violation of General Statutes § 53a-54c. ¹ The issues on appeal are whether: (1) the state was entitled to a jury instruction on accessorial liability; (2) a television interview of the victim's mother, viewed by two jurors, compromised their ability to continue as fair and impartial jurors; (3) the admission of evidence concerning the defendant's arrest on an unrelated matter constituted evidentiary error; (4) the trial court placed an improper limitation on the cross-examination of a state's witness; (5) the trial court's charge to the jury placed undue emphasis on the defendant's interest in the outcome of the case; and (6) the trial court's jury instruction on the burden of proof in connection with circumstantial evidence constituted harmful error. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 28, 1989, in the early hours of the morning, the victim, Orville Grant, and Mervin Needham were walking on Sixth Street in Bridgeport when they were approached by the defendant, Floyd Williams, and two other men. The defendant and his two companions all were armed with guns. The defendant forced the victim and Needham to lie on the ground while he rifled Needham's pockets for what turned out to be $5 in cash. The defendant then ordered both men into a nearby yard and again forced them to lie down. After some discussion, all three assailants began shooting. As a result of this assault, Grant died of a gunshot wound to the head.

Just prior to trial, the state filed an amended long form information charging the defendant in a seven count information with violations of the following general statutes: (1) felony murder, General Statutes § 53a-54c; (2) murder, General Statutes § 53a-54a(a); (3) attempted murder, General Statutes §§ 53a-49 and 53a-54a(a); (4) robbery in the first degree, General Statutes § 53a-134(a)(2); (5) attempted assault in the first degree, General Statutes §§ 53a-49 and 53a-59(a)(1); (6) assault in the second degree, General Statutes § 53a-60(a)(2); and (7) carrying a pistol without a permit, General Statutes § 29-35. ² On August 21, 1990, a jury found the defendant guilty of the single count of felony murder. The trial court sentenced the defendant to a term of sixty years imprisonment.

I

The defendant first claims that the trial court erred in instructing the jury on the theory of accessorial liability in connection with the robbery that constituted the felony portion of the felony murder charge. The defendant claims that he was charged only as a principal and therefore, the trial court erred in telling the jury that he could be found guilty of felony murder even though they might conclude that he was only an accessory to the alleged acts. We disagree.

"Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct. State v. Harris, 198 Conn. 158, 502 A.2d 880 (1985); State v. Ferrara, 176 Conn. 508, 513 n. 2, 408 A.2d 265 (1979); State v. Parham, 174 Conn. 500, 508, 391 A.2d 148 (1978)." State v. Fleming, 198 Conn. 255, 268 n. 15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986); see State v. Smith, 212 Conn. 593, 606, 563 A.2d 671 (1989).

While there is no question that the state produced sufficient evidence from which the jury could reasonably have concluded that the defendant was an accessory to the robbery underlying the felony murder, the defendant argues that the circumstances here are identical to those present in State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), and therefore, the trial court should not have instructed the jury that the defendant could be found guilty of felony murder under a theory of accessorial liability. In Steve, the state's bill of particulars charged the defendant with robbery and assault in the first degree claiming specifically that he acted as a principal. After the state concluded its case-in-chief, the defendant took the stand in his own defense and testified that a second person had committed the robbery and shot the victim. A second defense witness corroborated the defendant's testimony but added that she had seen the defendant accompany the assailant. The trial court thereafter charged the jury on accessorial liability and the jury found the defendant guilty of both offenses. On appeal, a majority of this court concluded that the defendant was prejudiced by the variance between the trial court's charge to the jury and the state's theory of liability as set forth in the bill of particulars. Specifically, the majority concluded that the defendant relied upon the state's theory that the defendant was the principal in each crime and that the defendant crafted his defense to address the claim that he had acted as the principal. We conclude that Steve is distinguishable for two reasons.

First, the amended information in this case charged that "said FLOYD WILLIAMS did commit Robbery, and in the course of and furtherance of such crime he or another participant in said crime did cause the death of ORVILLE GRANT...." (Emphasis added.) A fair reading of the information should have alerted the defendant to the fact that the state was claiming that either he or another participant "in said crime," i.e., the robbery, thereafter caused the death of the victim. The charging document squarely alerted the defendant to the fact that the state was relying on alternative theories of liability and that the evidence to be presented would tend to establish the defendant's guilt either as a principal or as an accessory. Thus, unlike Steve, there is no factual basis for a claim that the defendant relied upon an information charging him as a principal in preparing a defense that he was only an accomplice.

Second, prior to introducing any evidence in defense of the state's allegations, defense counsel moved that the court rule on whether the state would be entitled to a jury instruction that would permit a finding of guilt based upon a theory of accessorial liability. The trial court, concluding that the motion was premature, ruled: "I'll make my determination when, when we are discussing the contents of the Court's intended charge." Thus, unlike the situation in Steve, the defendant here was specifically put on notice by the trial court, prior to beginning his defense, that the issue of accessorial liability was still in the case. See also State v. Ives, 172 Conn. 322, 323, 374 A.2d 244 (1977); State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971); State v. Cianflone, 98 Conn. 454, 466, 120 A. 347 (1923); State v. Burns, 82 Conn. 213, 218-19, 72 A. 1083 (1909); State v. Hamlin, 47 Conn. 95, 120 (1879).

II

The defendant next claims that the trial court erred in denying his motion for a new trial based upon the observation by two jurors of an allegedly prejudicial television interview of the victim's mother. On August 21, 1990, immediately prior to the jury commencing its second day of deliberations, the trial court, having been made aware that such an interview had been broadcast the previous evening, asked the jurors if any of them had seen the newscast. Two jurors recalled seeing small portions of the interview. Neither juror had discussed the interview's content with the other jurors and both stated to the trial court that they did not believe that their observations had compromised their impartiality as jurors. Without objection, the trial court allowed the jurors to resume their deliberations.

On October 5, 1990, the day assigned for the defendant's sentencing, the defendant moved for a new trial based upon these jurors' observation of the allegedly prejudicial television newscast. The trial court viewed a videotape of the newscast and thereafter denied the defendant's motion concluding that its only effect was to "possibly evoke some sympathy" and that "[t]he Court [had] adequately instructed them on that ..." i.e., "that they were not to allow sympathy to play any part in their deliberations...."

When "the partiality of an individual juror is placed in issue ... [the] question is not one of mixed law and fact. Rather it is plainly one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984). "Thus the question is whether there is fair support in the record for the state court's conclusion that the jurors here would be impartial." Patton v. Yount, supra, at 1038, 104 S.Ct. at 2892.

In the present instance both jurors described a limited viewing of the television interview. One juror stated that he had viewed only a part of the program and by the time he realized that it even concerned his case, the interview was over. The other juror was reading the newspaper while watching television and it was his wife who called his attention to the television. He estimated that he had probably seen the last few seconds of the interview. After the trial court had questioned each juror separately, it determined that the incident had not caused them to form any opinion or reach any conclusion...