State v. Wright

• Citation: 500 A.2d 547,197 Conn. 588
• Court: Supreme Court of Connecticut
• Decision Date: 12 November 1985
• Parties: STATE of Connecticut v. Arthur Lee WRIGHT.

Page 547

500 A.2d 547

197 Conn. 588

STATE of Connecticut v. Arthur Lee WRIGHT.

Supreme Court of Connecticut.

Argued Oct. 1, 1985.

Decided Nov. 12, 1985.

Lauren M. Weisfeld, Special Public Defender, for appellant (defendant).

John A. Connelly, State's Atty., with whom, on brief, was Maureen Norris, Legal Intern, for appellee (state).

Before PETERS, C.J., and HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

PETERS, Chief Justice.

This case principally presents statutory and constitutional arguments arising out of the overlapping scope of two crimes, escape from custody; General Statutes § 53a-171; ¹ and kidnapping in the first degree. General Statutes § 53a-92(a)(2)(B). ² After a jury trial, the defendant, Arthur Lee Wright, was convicted of both crimes. He appeals from those judgments.

The facts are undisputed. On July 29, 1980, the defendant was in custody in Waterbury Superior Court for proceedings relating to a pending felony charge. ³ Shortly after the defendant's arrival in court, he suddenly ran from the defense table, through the back door of the courtroom, and out of the courthouse. With sheriffs in pursuit, the defendant fled to a nearby street where he encountered a woman emerging from her car. The defendant forced her back into the car and drove off with her, threatening to kill her if she did not cooperate. After having traveled a short distance, he parked the car and fled on foot. The woman was left unharmed in the car. The police apprehended the defendant on August 8, 1980, in West Haven.

On appeal, the defendant raises three issues concerning his convictions for the crimes of escape from custody and of kidnapping in the first degree. He claims that: (1) it is legally impossible to commit the crime of kidnapping in the first degree in the manner charged; (2) the trial court subjected the defendant to double jeopardy; and (3) the trial court used improper language in instructing the jury to draw no adverse inferences from the defendant's decision not to testify at trial.

I

The defendant's first claim of error is that he could not have committed kidnapping in the first degree because he lacked the necessary intent. The statutory definition of this crime requires the state to prove that the defendant "restrain[ed] the person abducted with intent to ... accomplish or advance the commission of a felony." General Statutes § 53a-92(a)(2)(B). The underlying felony on which the state relied was the crime of escape from custody. The defendant maintains that he lacked the requisite intent to commit the kidnapping because, having completed the escape once he had left the courthouse, he could not by abducting the victim have been acting "with intent to ... accomplish or advance the commission of a felony."

We find the defendant's argument unpersuasive because it reads the language of General Statutes § 53a-92 too narrowly. It is true that the defendant had committed the crime of escape from custody as soon as he left the control of his guards. See State v. Roy, 173 Conn. 35, 45-46, 376 A.2d 391 (1977); State v. Blyden, 165 Conn. 522, 530, 338 A.2d 484 (1973). But the statutory requirement that the defendant intend to accomplish or advance the commission of a felony does not mean that the defendant must intend to perform only those acts sufficient to incur criminal liability for a felony. The intent contemplated by General Statutes § 53a-92(a)(2)(B) is the intent to achieve the criminal objective of the felony. Thus, where escape from custody is the underlying felony, the defendant's intent to continue to elude the pursuit of custodial officers satisfies the intent requirement of § 53a-92. To be guilty of kidnapping in the first degree, a defendant need not abduct his victim at the very instant he leaves custody. He may abduct with the intent to further his escape either before he flees custody or during the period of flight immediately following his escape. Cf. State v. Rogers, 143 Conn. 167, 177, 120 A.2d 409, cert. denied, 351 U.S. 952, 76 S.Ct. 850, 100 L.Ed. 1476 (1956); ⁴ see State v. Velicka, 143 Conn. 368, 371, 122 A.2d 739 (1956); see also, e.g., State v. Hall, 305 N.C. 77, 83, 286 S.E.2d 552 (1982).

In this case, the defendant abducted the victim only minutes after his escape from custody. He was still running at the time and sheriffs were in hot pursuit. Commandeering the car enabled the defendant to leave the immediate vicinity of the courthouse, preventing the sheriffs and the police from immediately apprehending him. In light of these circumstances, the jury could reasonably have concluded that the defendant kidnapped the victim with the intent to advance or accomplish his felonious escape. It was therefore not error for the trial court to convict the defendant of kidnapping in the first degree.

II

The defendant next argues that the trial court, by convicting him of both escape from custody and kidnapping in the first degree, punished him twice for the same offense and thereby violated double jeopardy provisions of the federal constitution. ⁵ Because the crime of kidnapping in the first degree requires the state to prove that the defendant "restrain[ed] the person abducted with intent to ... accomplish or advance the commission of a felony"; General Statutes § 53a-92(a)(2)(B); the defendant claims that the underlying felony, escape from custody in this case, is a lesser included offense of kidnapping in the first degree and that, therefore, he cannot constitutionally be convicted of having committed both offenses. ⁶ We disagree.

The double jeopardy clause of the fifth amendment to the United States constitution bars multiple punishments for crimes that arise from the same act or transaction and amount to the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); State v. Sharpe, 195 Conn. 651, 654, 491 A.2d 345 (1985); State v. Devino, 195 Conn. 70, 73-74, 485 A.2d 1302 (1985). Concededly, the two crimes charged in this case occurred as part of the same transaction. The only disputed question is whether escape from custody and kidnapping in the first degree are separate offenses for purposes of double jeopardy. The United States Supreme Court held in Blockburger that "the test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of a fact that the other does not." Blockburger v. United States, supra, 304; see also State v. Sharpe, supra; State v. Devino, supra, 74-75, 485 A.2d 1302; State v. Frazier, 194 Conn. 233, 238, 478 A.2d 1013 (1984); State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979). In conducting this inquiry, we look only to relevant statutes, the information, and the bill of particulars, not to evidence presented at trial. State v. Sharpe, supra; State v. Devino, supra; State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982); State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977); see also Brown v. Ohio, supra, 432 U.S. at 168, 97 S.Ct. at 2226.

An examination of these materials in this case reveals that the crimes of escape from custody and kidnapping in the first degree are distinct offenses. To convict the defendant of escape from custody, the state had to prove that the defendant fled the custody of law enforcement officers. To prove the defendant guilty of kidnapping in the first degree, the state had to establish that the defendant abducted his victim with the intent to accomplish or advance his felonious escape; it did not have to show that he actually committed the crime of escape from custody. Because each crime requires proof of an element that the other does not, the trial court could properly punish the defendant for both crimes without offending the double jeopardy clause. The result we reach is consistent with the well established holding of Wilson v. State, 24 Conn. 57, 65 (1855), that the double jeopardy clause is not violated when a defendant is convicted of burglary and larceny charges arising out of the same transaction. See also State v. Benton, 161 Conn. 404, 411, 288 A.2d 411 (1971).

III

The defendant also argues that the trial court denied him a fair trial by instructing the jury to draw no unfavorable inferences from his "failure to testify." ⁷ He contends that the word "failure" implied to the jury that the defendant had a duty to testify and that, had he testified, he would have incriminated himself. ⁸

We find nothing wrong with the charge as given. The trial court used the exact language of General Statutes § 54-84(b) which requires that "[u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused's failure to testify." If the defendant felt that the word "failure" had unfavorable connotations, he could have requested that the court modify the charge or not give it at all. Nothing in the record indicates that he did either. Indeed, the defendant did not object to the charge when it was given; he raises this issue for the first time on appeal. In light of the defendant's inaction, the trial court justifiably employed the language of § 54-84(b). We have held that a failure by the trial court to comply with § 54-84(b) is plain error; State v. Sinclair, 197 Conn. 574, 500 A.2d 539 (1985); State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S.Ct. 1775, 76 L.Ed.2d 347 (1983); and that deviations from the statutory language that alter the meaning of the charge constitute grounds for reversal. See State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984). Thus it was not error for the trial court to instruct the jury as it did.

At oral argument, the defendant for the first time claimed that § 54-84(b) is unconstitutional. Because the issue has not...