State v. Woolfolk

• Citation: 8 Conn.App. 667,517 A.2d 252
• Decision Date: 09 January 1987
• Docket Number: No. 2593,2593
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edwin A. WOOLFOLK.

Page 252

517 A.2d 252

8 Conn.App. 667

STATE of Connecticut v. Edwin A. WOOLFOLK.

No. 2593.

Appellate Court of Connecticut.

Argued March 18, 1986.

Decided Aug. 26, 1986.

Certification Denied Jan. 9, 1987.

Robert J. Sweeney, Asst. Public Defender, for appellant (defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Patrice Amendola, Legal Intern, for appellee (state).

Before DUPONT, C.J., and DALY and BIELUCH, JJ.

BIELUCH, Judge.

The defendant was convicted by a jury of the crimes of robbery in the first degree, in violation of General Statutes § 53a-134(a)(2), carrying a pistol without a permit, in violation of General Statutes § 29-35, and stealing a firearm, in violation of General Statutes § 53a-212(a). On appeal from the judgment rendered, the defendant raises two claims of error. We find no error.

The jury could reasonably have found the following facts: In the midafternoon of September 29, 1982, the defendant met with Danny Hayward and Jessie Hardy at the latter's home. At the defendant's suggestion, the three men engaged in a dice game for money. They gambled for about two hours, during which time the defendant lost all of the money that he had with him, approximately two or three hundred dollars. After the game ended, the defendant left the premises, but returned later to reclaim his money, alleging that the dice used in play were "fixed." Hardy denied the allegation and refused to refund the defendant's money.

Later that afternoon, the defendant encountered Hayward and Hardy at a nearby fish market. Words were exchanged, but no physical altercation took place. Shortly thereafter, the defendant accosted the other two in back of the shopping plaza. At that confrontation, he snatched some money from the hand of Hayward, tearing a five dollar bill in half in the process. This was done after he pointed a loaded and operable .45 caliber revolver at him. After picking up the portion of the money that fell to the ground, the defendant rode off on his bicycle to a friend's apartment, where he was arrested a short while later after being identified by the two victims. A police search of the area of the arrest uncovered the loaded weapon under a bed. The gun matched the description of the weapon used in the robbery given by the two complainants. After the defendant was arrested, he was taken to the police station where he gave a statement indicating that he took the money because Hayward and his brother owed him $66. The gun, he claimed, had been purchased a day or two before from an unidentified person for $50 and was not displayed or used in a robbery or threat against Hayward and Hardy. In his testimony, he stated that "I had [the gun] in my pants, but I didn't pull it out.... Never pulled it out."

After the jury returned its verdict of guilty to the three charges, the trial court sentenced the defendant to a total effective term of twelve years, execution to be suspended after nine years, with three years probation thereafter. The defendant appeals from that judgment, claiming that the trial court erred (1) in refusing to instruct the jury as to the use of physical force in defense of property as set forth in General Statutes § 53a-21, and (2) in failing to give the requested charge relating to justification as a defense in the language of § 53a-21. These assignments of error, in substance, are related, being two sides of the same coin.

The defendant requested the following charge: "Our statutes provide that '[a] person is justified in using reasonable physical force upon another person ... when and to the extent he reasonably believes it necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force....' ¹ Therefore, if you conclude that Mr. Woolfolk reasonably believed that his money had been acquired by Mr. Hayward by larceny then you must find the defendant not guilty of Robbery 1st. Remember it is not necessary for Mr. Woolfolk to prove that, in fact, his money was taken by Mr. Hayward by larceny. All that is necessary is for Mr. Woolfolk to reasonably believe that his money had been acquired by Mr. Hayward by larceny (e.g. through the use of 'fixed dice')." In its charge to the jury, the court described the various elements of the crime of robbery in the first degree and explained the burden of proof that was required of the state to establish all of those elements beyond a reasonable doubt for a conviction. The defendant took an exception to the court's failure to give his requested charge on the applicability of General Statutes § 53a-21, which he then called an "affirmative defense."

General Statutes § 53a-12 provides: "(a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt. (b) When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence." In this appeal, the defendant now maintains that the "[u]se of physical force in defense of property [in accordance with § 53a-21] is not an affirmative defense under Connecticut General Statutes." Instead, he claims, it may be asserted as a defense by way of justification pursuant to General Statutes § 53a-16, which provides in part that "justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense" in any prosecution for an offense.

The state, on the other hand, maintains on appeal that "a given affirmative defense is legally available and an affirmative defense charge therefore required only when the defendant has introduced a quantum of evidence sufficient, in the trial court's reasoned judgment, to warrant giving the instruction." Such a measure of evidence, the state claims, the defendant did not produce at trial. Therefore, the prosecution was not obligated to prove the nonexistence of an affirmative defense which is legally unavailable to the defendant. For that reason also, the state maintains, the court properly excluded the defendant's request to charge, since it was not obligated to charge on a theory of defense not supported by the evidence.

The defendant's designation at trial, and the plaintiff's description on this appeal, of justification under § 53a-21 as an "affirmative defense" are erroneous. The dispositive issue before this court is the defendant's entitlement at trial to a theory of defense charge.

A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). The identification of a defense as an affirmative defense is relevant to the burden of proof in establishing such defense. The defendant has the burden of proving an affirmative defense by a preponderance of the evidence, while all other defenses must be disproven by the prosecution beyond a reasonable doubt. General Statutes § 53a-12. This is so because an affirmative defense does not serve to negate an element of the crime which the state must prove in order to convict, but constitutes a separate issue or circumstance on which the defendant is required to carry the burden of persuasion. State v. Wilkinson, 176 Conn. 451, 464, 408 A.2d 232 (1979).

General Statutes § 53a-16 provides that "[i]n any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense." Justification under these statutes, and in particular as claimed here under § 53a-21, is not an affirmative defense. The "lack of justification is an element of a criminal prosecution on which the state bears the burden of proof." State v. Preyer, 198 Conn. 190, 199, 502 A.2d 858 (1985); State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982).

The precise question before us is therefore independent of the issue of burden of proof of a defense at trial, the determination of which is controlled by § 53a-12 in accordance with the classification of a defense as affirmative or nonaffirmative in nature. We have before us the resolution of whether the defendant was entitled to a theory of defense charge predicated upon his use of physical force in defense of property under § 53a-21. Narrowed down, the issue is whether that defense was made at trial, for under § 53a-12 all defenses, affirmative and nonaffirmative, must be "raised at a trial."

Our Supreme Court recently ruled on a defendant's entitlement to a theory of defense charge as follows: "We have held that when a defendant 'admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charge is appropriate.' State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979).... [T]he defendant's claim of an innocent intent, if accepted by the jury, would negate an essential element of the crime and mandate a verdict of not guilty. This defense is intrinsically factual, however, and not of the type which we have held to require a distinct instruction as part of the trial court's charge. A general 'claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge.' State v. Rosado, supra. A theory of defense instruction is appropriate, upon proper request; State v. Preyer, [supra]; only when evidence supporting a 'legally recognized defense' is placed before the jury. State v. Cassino, [supra, 188 Conn. at 243, 449 A.2d 154]; State v. Rosado, supra; see State v. Harris, 189 Conn. 268, 274, 455 A.2d 342 (1983)." State v. Silveira, 198 Conn. 454, 461-62, 503 A.2d 599 (1986).

In the first count, the defendant was accused of robbery in the first degree, in violation of General Statutes § 53a-134(a)(2). The portion of the penal...