State v. Wolff

• Citation: 29 Conn.App. 524,616 A.2d 1143
• Decision Date: 24 November 1992
• Docket Number: No. 10780,10780
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Scott Brian WOLFF.

Page 1143

616 A.2d 1143

29 Conn.App. 524

STATE of Connecticut v. Scott Brian WOLFF.

No. 10780.

Appellate Court of Connecticut.

Argued Sept. 29, 1992.

Decided Nov. 24, 1992.

Martin Zeldis, Asst. Public Defender, for appellant (defendant).

Julia DiCocco Dewey, Asst. State's Atty. with whom, on the brief, were John M. Bailey, State's Atty., and Mark Brodsky, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and HEIMAN and FREDERICK A. FREEDMAN, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree of a victim over the age of sixty in violation of General Statutes § 53a-61a, ¹ assault in the third degree in violation of General Statutes § 53a-61 ² and two counts of unlawful restraint in the second degree in violation of General Statutes § 53a-96. ³ The defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal concerning one of the counts of unlawful restraint because of insufficiency of the evidence, (2) failed to uphold the defendant's constitutional right of due process by failing to instruct the jury as to the specific nature of the charges against him and by failing to differentiate between the victims, (3) failed to take steps to curb the prosecuting attorney's improper arguments, which are claimed to constitute prosecutorial misconduct, and (4) denied the defendant a fair sentencing hearing by proceeding to impose sentence before the completion of a psychiatric evaluation ordered by the court as a part of the presentence investigation.

The jury could reasonably have found the following facts. On December 28, 1989, the defendant was living with his parents, Gunther and Elvira Wolff, at the family residence at 438 Fern Street, West Hartford. Gunther Wolff, a sixty-five year old self-employed engineer, was working in his second floor study at about 4 p.m. when the defendant entered the study. The defendant told Gunther that he wanted to use some of the tools that Gunther had stored there. When his father declined to permit the defendant access to the tools, the defendant attempted to obtain them by force, throwing his father to the floor and keeping him pinned down to the floor by kneeling on his legs. During the next forty-five minutes, approximately, the defendant kept his father pinned to the floor, lectured him, and occasionally banged his head against the floor.

At about 4:45 p.m., Elvira Wolff, who had been out, returned to the house. Alerted by noise upstairs, she entered the study on the second floor and saw her husband and the defendant on the floor. She screamed and attempted to pull the defendant off of his father. The defendant then verbally and physically assaulted his mother for a period of about sixty minutes. The defendant yelled at her and slapped her across the face and chest a number of times. Both victims wanted to leave the room, but were afraid to attempt to do so. Although there was a telephone in the room, neither victim attempted to use it. The defendant positioned himself between his parents and the door so that they could not leave without going around him. At one point, the defendant's father attempted to smash a window in the study in order to summon help, but was unsuccessful.

The defendant's mother told him that she expected guests for dinner and that she had to prepare the meal. The two victims and the defendant then went to the kitchen. Subsequently, the defendant's father asked the defendant if he could take a walk in the neighborhood. The defendant replied that they could leave whenever they wanted. Both parents left the house, went to the nearest telephone and contacted the West Hartford police department. When the police responded, they found the defendant in the garage, working under the hood of an automobile. While his father was visibly upset, the defendant appeared calm and cooperative.

I

The defendant first asserts that the trial court improperly denied his motions for judgment of acquittal concerning the charge of unlawful restraint arising out of his claimed conduct toward Elvira Wolff. ⁴ The defendant claims that there was insufficient evidence directed toward his conduct involving his alleged restraint of his mother to permit submission of that charge to the jury. We are not persuaded that the evidence was insufficient.

The record discloses that the defendant made a motion for judgment of acquittal at the close of the state's case pursuant to Practice Book § 864. The trial court denied this motion. The defendant then proceeded to offer evidence on his own behalf. Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state's evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state's case. State v. Booker, 28 Conn.App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn.App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992). ⁵ Thus, the defendant's claim with regard to the sufficiency of the evidence at the completion of the state's case is not reviewable. State v. Booker, supra, 28 Conn.App. at 41, 611 A.2d 878.

The record further discloses that the defendant next moved for judgment of acquittal at the completion of the court's instructions to the jury. ⁶ While the rules of practice contemplate motions for judgment of acquittal at the completion of the state's case in chief; Practice Book §§ 863 and 864; at the completion of all of the evidence; Practice Book §§ 863 and 865; and after a verdict of guilty; Practice Book § 899; nothing in the rules appears to contemplate the hybrid action taken by the defendant in this case. See footnote 6, supra.

Since the trial court, however, permitted the procedure and ruled on the motion, despite its untimeliness, we also will afford it the review to which it would be entitled under the waiver rule. ⁷ We thus review the entirety of the evidence taking into account both the evidence offered by the state and that offered by the defendant. State v. Kari, supra. We review all of the evidence presented in the light most favorable to sustaining the verdict. State v. Dunn, 26 Conn.App. 114, 124, 598 A.2d 658 (1991). We then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could have reasonably concluded that the cumulative effect of the evidence established the guilt of the defendant beyond a reasonable doubt. State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Dunn, supra. We must also keep in mind that the defendant attacks the sufficiency of the evidence with respect to a single count only, the charge that he unlawfully restrained his mother. We afford great deference to findings of fact consistent with guilt unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).

The jury could reasonably have found that the defendant struck the victim a number of times and that she was restrained from leaving the study and later the kitchen because of her fear of the defendant. The jury could have found that the defendant restrained his mother by intimidation.

We conclude that the defendant's claim that the evidence was insufficient is without merit. If the case had been submitted to the jury under proper instructions and a guilty verdict returned as to the unlawful restraint claim involving Elvira Wolff, we would be satisfied that the evidence was sufficient to warrant a jury's returning a verdict of guilty.

II

The defendant next claims that the trial court failed to instruct the jury as to the specific nature of the charges against him and failed to differentiate the factual basis of the claims against each victim. His claim is that the trial court's jury instructions were constitutionally defective in that they failed to relate the issues of law to the facts of the case. The defendant concedes that this claim was not properly preserved in the trial court, but claims that it is nonetheless reviewable under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Our standard of review in cases when the defendant claims that the instructions violate constitutional due process protections is whether the jury instructions were so deficient that it was reasonably possible that the jury was misled. State v. Allen, 28 Conn.App. 81, 84, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992). We will reverse a conviction only if, "in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict." (Internal quotation marks omitted.) State v. Scognamiglio, 202 Conn. 18, 28, 519 A.2d 607 (1987); State v. Nita, 27 Conn.App. 103, 112, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329 (1992).

We first consider whether the instructions given by the trial court were so deficient as to implicate the constitutional right of the defendant to a fair trial. A jury instruction conforms with constitutional requirements if it provides jurors with a "clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present." (Internal quotation marks omitted.) State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992). "An instruction that fails to satisfy these requirements [violates] the defendant's right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution." Id., at 603, 613 A.2d 731. "The due process clause protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." State v. Roque, 190 Conn. 143,...