author: Borden, J.

text:
    State of Connecticut v. Robert J. Foshay
    (4663)
    Dupont, C. J., Borden and Daly, Js.

      Argued March 6
    decision released August 11, 1987

      John W. Watson, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were Brian E. Cotter, assistant state’s attorney, and John Sheedy and William R. Korey, legal interns, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes § SSa-lOS, and of larceny in the third degree in violation of General Statutes § 53a-124 (a) (l), and from the judgment of conviction, after a court trial, of being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). The defendant claims that the trial court erred as follows: (1) he was denied his right to a speedy trial; (2) the court’s instructions to the jury on accessory liability were defective; (3) the court’s instruction to the jury on the larceny offense impermissibly allowed the jury to convict the defendant of an offense with which he was not charged; (4) there was insufficient evidence to convict the defendant of larceny in the third degree as charged in the information; (5) in admitting evidence of uncharged misconduct of the defendant; (6) in denying the defendant’s motion to dismiss the charge of being a persistent serious felony offender; and (7) the defendant did not have fair notice that he faced enhancement of his sentence on both felony counts, based on the single persistent serious felony offender charge. We find no error.

The jury could reasonably have found the following facts: On the morning of October 5, 1983, Sharon Somers left her Danbury home, returning shortly after noon. Upon her return, she discovered that her house had been forcibly entered and ransacked. She immediately alerted the police. Several items of jewelry, including a gold and black onyx earring and a man’s silver pocket watch, and a video cassette recorder, were missing from her house. The missing items were valued at more than $1000.

Somers’ house is located just behind the parking lot of “Jimmy’s Market,” a convenience store. Around noon on October 5, Steven Costigan, the store manager, was in the parking lot. He observed a man running through the parking lot. Costigan was able to give a fairly detailed description of the man and had noticed that the man was carrying a brown and silver box-like item approximately twenty-four inches by twenty-four inches by eight inches. The man ran to an automobile which was parked, with the.motor running, on the road next to the parking lot, about fifty feet from Somers’ house. Costigan testified that there were two other people in the car, a male sitting in the driver’s seat and an unidentifiable figure in the rear seat. Costigan observed the car’s license number as it sped away.

Thereafter, a police officer arrived, inspected the victim’s home, and took her account of what happened. The information given by the victim and Costigan was broadcast over the police radio.

Officer Ronald Inconstanti awaited the return of the automobile at the address of the car’s registered owner. At approximately 1:25 p.m., the defendant drove the car into the driveway at that address. Inconstanti stopped the car. There were four persons in the car: the defendant, Robert Hyde, Warren Booth, and Deborah Schlemmer.

Hyde, the front seat passenger, had Somers’ silver pocket watch in his left shirt pocket, her black onyx earring was in his cigarette pack. Her video cassette recorder was in the trunk of the car.

Costigan was brought to the scene of the arrest, where he identified the car driven by the defendant as the one he had seen parked next to his store earlier that day. He also identified Hyde as the man he had seen running to the car carrying a box-like object. He was not able to identify anyone else.

I

The facts relevant to the defendant’s speedy trial claim are as follows. On October 5, 1983, the defendant was arrested in connection with the charges for which he was convicted. At the time of his arrest, the defendant was on parole from a previous, unrelated indeterminate sentence. On the day of his arrest, the Connecticut department of correction, division of parole, filed a “parole sticker” against the defendant, pursuant to General Statutes §§ 54-127 and 54-128, and ordered him remanded to the custody and control of the Bridgeport correctional center. The defendant remained incarcerated in that facility throughout the pendency of the proceedings in the trial court in this case.

On October 18, 1983, after entering a plea of not guilty, the defendant requested a speedy trial. On February 29,1984, allegedly in compliance with General Statutes § 54-82c (a), the defendant’s attorney sent a letter to the department of correction requesting that certain information be prepared and forwarded to the appropriate persons pursuant to that statute. The agent in charge of such matters refused to provide the information as requested because the defendant was not “in sentenced status.” On March 2, 1984, the defendant again filed a motion for a speedy trial.

On March 22,1984, the state informed the trial court that it was not ready to proceed to trial because the victims were out of state on vacation, and were due back in Connecticut on April 14. In response to this development, the defendant made an oral motion to dismiss the charges on speedy trial grounds. During the hearing on the motion, counsel for the defendant indicated to the court the difficulty he had had in locating witnesses and the increased risk posed by the passage of additional time for securing the attendance of a particular witness at a trial which would commence in the indefinite future. The motion was denied by the court, Moraghan, J., with the statement that if the state was not ready to proceed on April 24, the case would be “dismissed and dismissed summarily.”

The defendant’s case did not come to trial on April 24, 1984, because of a lack of judicial personnel due to an ongoing criminal trial. On May 11,1984, the defendant again filed a motion for speedy trial. After hearing argument on the motion on May 25,1984, the court, Maiocco, J., ordered that the state’s case against the defendant would follow the trial of a defendant named “Skidmore.”

After learning that there would not be a jury called during the summer months, on July 12, 1984, the defendant again filed a motion to dismiss for lack of a speedy trial. On July 20, 1984, the court, Stodolink, J., denied the motion.

On September 12,1984, the case against the defendant was called for trial. Prior to the commencement of trial, the defendant again made a motion to dismiss for lack of a speedy trial. In support of that motion, counsel for the defendant apprised the court of the difficulties he had in locating a key witness, Deborah Schlemmer, and serving her with a subpoena. It is apparent from the record that Schlemmer is the same witness to whom the defendant’s counsel referred in his statement to the court on March 22,1984. See footnote 4, supra. Further, in support of his motion, the defendant called a former boyfriend of the missing witness, who testified that he had last seen her approximately two weeks before, and that she had been living at a particular Danbury address in the past but that he did not know where she was then living. The court, Geen, J., denied the defendant’s motion to dismiss. Thereafter, on September 12, 1984, voir dire examination of jurors began, and on September 14,1984, the jury impaneled to decide the case against the defendant was sworn in, and testimony from the state’s first witness was presented.

The defendant’s claim that he was denied his right to a speedy trial takes two forms. First, he argues that the delay in trying him violated General Statutes §§ 54-82c and 54-82d. Second, he contends that the delay in trying him violated his right to a speedy trial under the federal and state constitutions. Since “[constitutional issues are not considered unless absolutely necessary to the decision of the case”; Edelson v. Zoning Commission, 2 Conn. App. 595, 600, 481 A.2d 421 (1984); we first consider the defendant’s statutory argument in support of his motions to dismiss on speedy trial grounds.

A

The defendant contends that he was entitled to the protection against delayed trials afforded to inmates in Connecticut correctional facilities by General Statutes §§ 54-82c and 54-82d. Those provisions establish procedures by which a person who “has entered upon a term of imprisonment” within a state correctional facility may request a speedy disposition of outstanding Connecticut criminal charges. If a criminal case is not brought to trial within the statutory period of 120 days from the delivery of the prisoner’s request, accompanied by his custodian’s certificate, to the appropriate prosecuting official and court, the case must be dismissed. State v. Toste, 198 Conn. 573, 585-87, 504 A.2d 1036 (1986); State v. McCarthy, 197 Conn. 166, 169-70, 496 A.2d 190 (1985).

The defendant, who was incarcerated prior to trial due to his inability to make bond, contends that because a “parole sticker” was also lodged against him, he had at that point “entered upon a term of imprisonment” within the meaning of § 54-82c, entitling him to the dismissal of the charges pursuant to § 54-82d. Because we conclude, however, that a parolee who is confined while awaiting a parole revocation hearing has not entered upon a term of imprisonment within the meaning of General Statutes § 54-82c, the defendant’s statutory argument must fail.

General Statutes § 54-82c is patterned after a similar provision, codified at General Statutes § 54-186 and known as the Agreement on Detainers, which applies to prisoners who are incarcerated in one jurisdiction and face charges in another. A primary purpose behind both statutes is to alleviate problems posed by outstanding detainers on efforts at prisoner rehabilitation. At committee hearings on the bill which became General Statutes § 54-82c, Representative Marjorie D. Farmer noted that “[a]ny program of rehabilitation which is undertaken in a penal institution is ineffective if a man has time hanging over his head.” Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1957 Sess., p. 229. Similarly, proponents of the Interstate Agreement noted that the uncertainty and anxiety accompanying outstanding charges often inhibits prisoner response to training programs and thwarts efforts at rehabilitation. See United States v. Mauro, 436 U.S. 340, 359, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978). See also Conn. Joint Standing Committee Hearings, Federal and Intergovernmental Relations, 1957 Sess., pp. 37-42. General Statutes § 54-82c, like § 54-186, then, provides a mechanism by which an inmate can remove the uncertainty of pending charges and can compel a speedy resolution of those charges.

At the time the defendant attempted to invoke the provisions of General Statutes § 54-82c, he was being held, at least in part, as a result of an alleged parole violation. See General Statutes § 54-127. Although the record is not clear on this point, it appears that no hearing had yet been held to determine whether in fact the defendant violated the terms and conditions of his parole and whether his parole should be revoked as a result. This would be in accord with procedures used by the board of parole, which provide that revocation hearings “shall be held within approximately sixty days of . . . the date of sentence for a new criminal offense.” Connecticut Board of Parole, Statement of Organization and Procedures (6th Ed. 1979), 17. With regard to both the substantive charges pending against the defendant and his parole status, therefore, the defendant was in an-essentially pretrial posture.

Because pretrial detainees possess no immediate interest in institutional rehabilitation programs, various courts, including our own Supreme Court, have recognized that such persons are not within the class of persons protected by detainer statutes. State v. Toste, supra, 586, citing United States v. Reed, 620 F.2d 709, 711 (9th Cir.), cert. denied, 449 U.S. 880, 101 S. Ct. 229, 66 L. Ed. 2d 104 (1980), and United States v. Milhollan, 599 F.2d 518, 528 (3d Cir.), cert. denied, 444 U.S. 909, 100 S. Ct. 221, 62 L. Ed. 2d 144 (1979). The federal Court of Appeals for the Third Circuit has noted that, even though the basis for a parolee’s detention is the underlying sentence from which he has been paroled, until such time that the parole violator is recommitted after a hearing and his incarceration thereby made certain and fixed as to duration, no term of imprisonment can be said to have commenced or resumed within the terms of the federal counterpart to General Statutes § 54-186. United States v. Dobson, 585 F.2d 55, 59 (3d Cir.), cert. denied, 439 U.S. 899, 99 S. Ct. 264, 58 L. Ed. 2d 247 (1978).

We find Dobson to be persuasive authority. Like the parolee in Dobson, the defendant in this case was not in the position of those inmates whom General Statutes § 54-82c was designed to protect. He had not entered upon a term of imprisonment with definite parameters. We therefore conclude that the defendant, who was incarcerated in a state correctional institution as a result of a “parole sticker” lodged against him, was not entitled to the protections afforded by General Statutes § 54-82c.

B

We turn now to the defendant’s constitutional speedy trial claim. The sixth amendment guaranty of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). “This right is also guaranteed by the Connecticut constitution, article first, § 8.” State v. Johnson, 190 Conn. 541, 544, 461 A.2d 981 (1983). “The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of the defendant’s constitutional right to speedy adjudication: ‘[l]ength of delay, the reasons for the delay, the defendant’s assertion of his right, and prejudice to the defendant. ’ Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated. State v. Nims, supra, 591-92.” State v. Johnson, supra, 544-45. Our consideration of the four Barker factors leads us to conclude that the defendant has failed to establish that he was denied his constitutional right to a speedy trial.

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, supra, 530. The protection afforded the defendant by the constitutional speedy trial guaranty was activated on October 5, 1983, when he was arrested. See Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975). Voir dire examination of jurors began on September 12, 1984, and the defendant’s trial commenced on September 14, 1984, when the jury was impaneled and sworn. The state concedes, as it must, that a delay of eleven months and nine days is sufficiently long to warrant further inquiry. See State v. Brown, 172 Conn. 531, 536, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S. Ct. 153, 54 L. Ed. 2d 114 (1977) (nine months delay sufficient to trigger further inquiry).

Application of the Barker balancing test next requires a consideration of the reasons for the delay. The delay in the present case can be divided into three segments, each of which had a different cause. The parties do not dispute the reasons for these periods of pretrial delay. The bulk of the first period of delay, from October 5, 1983, to March 22, 1984, can be attributed largely to the time required for normal pretrial procedures. The second period, from March 22 to April 24, 1984, was due to the unavailability of key state witnesses and holiday scheduling difficulties. The third period, from April 24 to the commencement of trial, appears to have been caused by calendar difficulties and a shortage of judicial personnel. “While docket congestion does not justify or excuse delay; State v. Davis, 192 Conn. 739, 742, 474 A.2d 776 (1984); it is considered a neutral reason and is ‘weighed less heavily against the state than purposeful delaying tactics.’ State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). This reason must nonetheless be considered ‘since the ultimate responsibility for such circumstance must rest with the government rather than the defendant.’ Barker v. Wingo, supra, 531.” State v. Flowers, 198 Conn. 542, 550-51, 503 A.2d 1172 (1986).

As to the third Barker factor, the record in this case clearly demonstrates that the defendant vigorously requested a speedy trial on a number of occasions. “Delay in the face of forceful assertion becomes less excusable for that very reason. We count the defendant’s assertion of his right heavily against the state . . . .” State v. Flowers, supra, 548-49.

The final Barker factor which we must consider is prejudice caused by the delay. Our Supreme Court has observed that “the linchpin of the speedy trial claim is a showing of prejudice.” State v. Lloyd, 185 Conn. 199, 209, 440 A.2d 867 (1981). Prejudice maybe actual or presumed; a showing of actual prejudice may not be required at all where other factors weigh heavily against the state. State v. Flowers, supra, 551. In this case, the factors discussed above certainly weigh in the defendant’s behalf, but not so strongly as to indicate a violation of his constitutional right to a speedy trial in the absence of a showing of actual prejudice. See id., 552 (finding that the analysis of the first three Barker factors in that case provided no showing of misconduct on the part of the state sufficient to warrant a presumption of prejudice); State v. L’Heureux, 166 Conn. 312, 348 A.2d 578 (1974).

Prejudice, in the context of a speedy trial claim, “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. The [United States Supreme Court] has identified three such interests: (i) to'prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker v. Wingo, supra, 532. Of these, the Supreme Court has pointed out, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.

The defendant claims to have been prejudiced in a number of ways. He first claims that the eleven months of pretrial incarceration had a negative psychological impact on him and resulted in the “disruption of his work, isolation from his family, [and] increasing pressure to accept some form of plea bargain in spite of his consistent claim of innocence.” In addition, the defendant claims that his defense was impaired by his inability to assist his counsel in attempting to locate a piece of physical evidence, and by the unavailability of a critical defense witness who allegedly “was lost as a direct result of the delay.”

As to the first type of prejudice asserted by the defendant, his showing of anxiety and frustration is not sufficiently grave in this case to rise to the level of a constitutional violation. ‘While prejudice in the nature of that asserted here is unfortunately present in every case of pretrial delay, general claims of anxiety are thought insufficient to invoke what has been termed ‘the unsatisfactorily severe remedy of dismissal.’ . . .” (Citations omitted.) State v. Flowers, supra, 553.

Similarly, the defendant’s claim of prejudice to his ability to present a defense due to his inability to assist counsel in attempting to locate a piece of physical evidence must fail. At the March 22, 1984 hearing on his oral motion to dismiss, defense counsel stated: “[TJhere is at least one set of circumstances that we have been trying to track down concerning something that was disposed of in a certain place. [The defendant’s] mere incarceration has made it almost impossible to find this place. If he was not incarcerated we might have found that particular piece of evidence that we are looking for.” Without any information as to what this evidence may have been or how it might have assisted the defendant, no finding of prejudice can be made. “Conclusory, vague or oblique allegations [of prejudice] are discountenanced.” State v. Johnson, supra, 546.

The defendant’s claim of prejudice to his ability to present a defense due to the unavailability of a key witness, however, presents a closer question. Recognizing, as it must, that “[i]f witnesses die or disappear during a delay, the prejudice is obvious”; Barker v. Wingo, supra, 532; the state argues that the defendant has failed to sustain his burden of establishing (1) that the testimony of the missing witness would have been material to the defense, (2) that the witness was unavailable due to the delay rather than some other factor of fortuity, and (3) that the witness was in fact unavailable, all of which are required to show prejudice to the ability to present a defense due to a missing witness. See State v. Flowers, supra, 558-60; State v. Johnson, supra, 546.

The missing witness in this case was Deborah Schlemmer. On October 5, 1983, Schlemmer made a sworn statement before two members of the Danbury police department. That statement is included in the appellate record and reprinted in full in the footnote. Schlemmer’s statement portrays the burglary as having been committed by Hyde alone, without the participation or knowledge of the other occupants of the car, including the defendant. If believed by the jury, Schlemmer’s expected testimony might have absolved the defendant of criminal responsibility on the burglary charge. See General Statutes §§ 53a-103; 53a-8. Additionally, as to the larceny charge, Schlemmer’s statement indicates that the defendant was only aware that Hyde had stolen the video cassette recorder, which was valued at approximately $800. If believed by the jury, Schlemmer’s expected testimony could be reasonably expected to support only a finding of guilt as an accessory to a misdemeanor larceny. See General Statutes §§ 53a-125, 53a-119, 53a-8. Accordingly, since Schlemmer was a witness to the crime who could reasonably be expected to offer testimony which would have exonerated the defendant of the crimes with which he was charged, her testimony was certainly material to the defense.

Next, the state contends that the defendant has failed to show that Schlemmer’s alleged unavailability was due to the delay rather than some other fortuitous factor. The record in this case does not support such a conelusion. On March 22, 1984, the defendant was ready to proceed to trial but could not do so due to the unavailability of prosecution witnesses. At that time, the defendant moved to dismiss the charges, apprising the trial court that, although he had subpoenaed Schlemmer for appearance at trial on that date, he had had difficulty locating her and that further and indefinite continuances might result in the disappearance of this witness. By the time his trial commenced, the defendant’s concerns, expressed to the court nearly six months before, seemed to have come to pass. This is not a case where it is unclear whether the missing witness would have been available as a witness even if the defendant had been tried earlier. Compare State v. Troynack, 174 Conn. 89, 94, 384 A.2d 326 (1977). It is clear that the defendant would have had this essential witness available to testify at the time the case was first called to trial. Therefore, the defendant has successfully shown that delay was a cause of the unavailability of this material witness.

Lastly, the state argues that the defendant failed to establish that Schlemmer was in fact unavailable as a witness. State v. Flowers, supra, 558. The state correctly points out that proof of unavailability “requires some showing by the defendant that he has taken affirmative steps reasonably calculated to procure the witness for trial”; id.; but contends that “[t]he evidence and representations of counsel establish merely one unsuccessful attempt at serving Schlemmer with a subpoena and some confusion as to her exact address [which is] insufficient to establish her unavailability.” We agree that the defendant failed to show that Schlemmer was in fact unavailable. This conclusion is fatal to the defendant’s claim.

The defendant provided the court with the following evidence and representations of counsel regarding his efforts to find Schlemmer. A defense investigator learned that Schlemmer had quit her job. The investigator could not locate the missing witness through her mother. On the morning on which the case was called to trial, the investigator went to Schlemmer’s last known address to serve her with a subpoena, but no one came to the door. After the case had been called for trial, counsel for the defendant also questioned two witnesses in court in an effort to locate Schlemmer. Neither witness was in a particularly good position to know of Schlemmer’s whereabouts. During the several days of trial, defense counsel also reported to the court that he was aware of a rumor that Schlemmer had been seen in nearby Brewster, New York, at three o’clock in the morning. No further efforts were made to locate the missing witness.

The defendant did not have to prove Schlemmer’s unavailability to a certainty. Flowers only requires “some showing by the defendant that he has taken affirmative steps reasonably calculated to procure the witness for trial.” Id. In other words, a defendant who claims that the absence of a material witness has prejudiced his ability to put forth a defense must show that he has exercised due diligence in attempting to locate the witness. See 17 Am. Jur. 2d, Continuance § 32; 3 F. Wharton Criminal Procedure (12th Ed. Torcía 1975) § 428.

Based on this record, we conclude that the defendant failed to exercise due diligence in his attempt to locate this key witness and secure her attendance at trial. The evidence shows that the defendant made only one attempt to subpoena Schlemmer at her last known address on the morning of the first day of trial. At a minimum, due diligence required more, particularly in the absence of any evidence that the missing witness was no longer living there. In fact, the testimony of Schlemmer’s former boyfriend and a rumor which counsel brought to the court’s attention during the trial indicated that Schlemmer was still in the Danbury area within two weeks prior to the trial, and even during the trial. Nonetheless, the defendant made no further efforts to locate or subpoena Schlemmer during any of the six days of trial. Further, while the evidence shows that the defendant could not locate the witness through her mother, there is nothing to indicate that her mother knew of her daughter’s whereabouts at any time relevant to this case.

Most significantly, there is no indication that the defendant sought to locate Schlemmer through any of a number of obvious and accessible sources, such as her landlord, neighbors, former employer, former coworkers, or other friends. While information from those individuals might not have succeeded in ultimately locating Schlemmer, they would have permitted the trial court to conclude that affirmative steps reasonably calculated to procure the witness for trial had been undertaken by the defendant. In the absence of a showing that such a diligent search was made, however, the trial judge was correct in concluding that the defendant had not shown that the missing witness was in fact unavailable. Therefore, we conclude that the defendant has failed to show that the delay resulted in prejudice to his ability to put forth an effective defense.

II

The defendant next claims that the trial court erred in its instructions to the jury regarding liability as an accessory to the offense of burglary in the third degree. Specifically, the defendant contends that the challenged instructions failed to advise the jury adequately of the dual intent requirement of accessory liability under General Statutes § 53a-8, namely, the intent to aid the principal and the intent to commit the underlying offense. See State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979).

Because the defendant neither requested a particular charge on accessorial intent nor excepted to the charge as given, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We have recently clarified our formulation for Evans review. We ask the following questions when an Evans claim is made and must answer each in the affirmative before continuing to the succeeding question: (1) does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? (2) does a limited review of the record show that the defendant’s claim is truly of constitutional proportions and not simply characterized as such by the defendant? (3) was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant? and (4) did the deprivation deny the defendant a fair trial, thereby requiring that the conviction be set aside? State v. Huff, 10 Conn. App. 330, 333-34, 523 A.2d 906 (1987); State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891 (1987). “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” State v. Newton, 8 Conn. App. 528, 531, 523 A.2d 1261 (1986).

The defendant, by claiming that the court’s failure adequately to instruct the jury on the dual intent required to convict him as an accessory to a crime amounted to an omission of an instruction on an essential element of the crime charged, has satisfied the first requirement for Evans review. State v. Grant, 6 Conn. App. 24, 28-29, 502 A.2d 945 (1986). Our limited review of the record discloses, however, that the defendant’s claim is not truly of constitutional proportions, but is simply characterized as such by him. The trial court read General Statutes § 53a-8 in full, and did not, in its further comments on the meaning of the statute and in its application of the statute to the facts of the case, negate the essential meaning of the statutory language. See State v. Giannotti, 7 Conn. App. 701, 706-707, 510 A.2d 451, cert. denied, 201 Conn. 804, 513 A.2d 700 (1986). The statute itself contains the dual intent language. Although the court could have explained the dual intent requirement more fully, we cannot say that its failure to do so amounts to a claim of constitutional proportions. State v. Greene, 11 Conn. App. 575, 582-83, 528 A.2d 855 (1987). Thus, the defendant has failed to satisfy the second requirement for full Evans review because his constitutional claim is not adequately supported by the record. State v. Huff, supra, 334.

Ill

The defendant’s next two claims of error relate to his conviction on the larceny offense. The defendant claims (1) that the court’s charge to the jury on larceny impermissibly allowed the jury to convict him of an offense with which he was not charged, and (2) that there was insufficient evidence to convict him of larceny in the third degree.

A

The defendant argues that the trial court unconstitutionally enlarged the offense with which he was charged, when it instructed the jury that it could convict him of larceny if it found that he committed larceny by taking, by obtaining, or by withholding. The governing statute; General Statutes § 53a-119; creates criminal liability under these three alternatives. The information by which the defendant was charged, however, only accused the defendant of violating the statute by a wrongful taking.

The defendant failed to raise this claim at trial or take an exception to the trial court’s charge. In fact, he filed a written request that the trial court charge the jury on each alternative form of larceny, along with a request to charge which included definitions of each alternative. The defendant contends, nevertheless, that this claim is reviewable on appeal under State v. Evans, supra, because he has been denied a fundamental constitutional right and a fair trial.

Employing the refined Evans analysis set forth above, we conclude that, while the defendant has labeled his claim as constitutional, he has failed to satisfy the second requirement for Evans review, because his claim is not truly of constitutional proportions. Since the jury was instructed on three methods of committing the same crime, in the absence of a showing that “the court’s charge caused him unfair surprise or prejudiced the preparation of his defense”; State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); the defendant cannot establish a constitutional violation. “[T]he affirmative action of the defendant in submitting a written request that the trial court instruct the jury on the [obtaining or withholding] theories] of liability negates any claim that he was unfairly surprised by the inclusion of such an instruction in the court’s charge. See State v. Franko, supra, 490-91.” State v. Scognamiglio, 202 Conn. 18, 23, 519 A.2d 607 (1987); see also State v. Silveira, 198 Conn. 454, 467, 503 A.2d 599 (1986) (error induced by appellant cannot be a ground for reversal and will not be reviewed); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987) (same).

B

The defendant also argues that the larceny conviction is defective in that the evidence was insufficient to convict him of larceny by taking as charged in the information. Although the defendant has couched his claim in terms of evidentiary insufficiency, in reality his claim is one of instructional error. He argues that the evidence which supports a conviction as an accessory to the taking does not support the theory on which the court submitted the case to the jury, namely, as a principal.

The defendant correctly contends that there was no evidence to convict him of larceny by taking as a principal. He concedes that he could have been convicted of larceny as an accessory notwithstanding the fact that the information charged him only as a principal; 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); but he argues that the court’s charge submitted to the jury only the question of his guilt of larceny as a principal. In support of this argument the defendant points out that, at the conclusion of the court’s charge, the state took an exception on the ground that the court had failed to instruct the jury on accessory liability as it related to the larceny charge. The defendant also points out that the court in response to his motion for articulation, concluded that “[t]here was sufficient evidence to submit to the jury the question of the defendant’s guilt of the offense [of larceny in the third degree] as a principal,” without any mention of his liability as an accessory. Thus, the defendant argues, he could not be convicted as an accessory to the taking. We disagree, because we conclude that the court did submit the case to the jury on a theory of accessorial liability to the taking.

There is no dispute that the evidence in this case was sufficient to convict the defendant of larceny as an accessory to the taking. Although the charge as given is less than a model of clarity in this respect, we conclude that, fairly read, it adequately instructed the jury on the concept of accessory liability in relation to the larceny charge to support the conviction. Thus, the defendant was properly convicted, as an accessory, of larceny by taking, and his claim of evidentiary insufficiency as to larceny must fail.

A charge to the jury must be reviewed as a whole and considered from the standpoint of its probable effect upon the jurors in guiding them to a proper verdict in the case. State v. McKnight, 191 Conn. 564, 582, 469 A.2d 397 (1983); State v. Taxiltaridis, 2 Conn. App. 617, 620, 481 A.2d 98 (1984). For this reason, we are not bound by the views of the court or counsel in resolving this issue. In this case, the court preceded its instruction on accessory liability, by stating: “Now, as to Robert Foshay, the same principle of law as to Burglary in the Third Degree applies to him, but I shall speak to you about another legal principle which applies to this case and that is this: Both defendants in this case are charged with Burglary in the Third Degree and Larceny in the Third Degree.” (Emphasis added.) Although the remainder of the court’s charge was structured so that the accessory liability concept was specifically applied to the evidence in the case only in the context of the burglary offense and prior to any instruction on the elements of the larceny offense, it is likely from the charge as given that the jurors understood accessory liability to apply to both counts. This is so because their attention was drawn to both counts when the concept was explained, and because the evidence in the case indisputably pointed to the defendant’s guilt on both intimately related charges only as an accessory. Although it would have been preferable to have linked the accessory instruction more specifically to the instruction on the larceny offense, reviewing the instructions as a whole and considering them from the standpoint of their probable effect upon the jury in guiding them to a correct verdict, we cannot say that the jury was without adequate legal instruction on the applicability of accessory liability, as contained in General Statutes § 53a-8, to the larceny offense of which the defendant was convicted.

IV

The defendant’s next claim of error is that the court erred by admitting into evidence irrelevant and prejudicial evidence of uncharged misconduct. Specifically, he challenges the admission into evidence of the testimony of Inconstanti that he was in possession of two hypodermic needles at the time of his arrest. The state concedes, and we agree, that the court erred in allowing this testimony. See generally State v. Johnson, 188 Conn. 515, 523, 450 A.2d 361 (1982). We conclude,, however, that the error was harmless. Where, as here, the error involved the admission of extraneous misconduct evidence, the defendant bears the burden of proving harmful error. State v. Silva, 201 Conn. 244, 250, 513 A.2d 1202 (1986). “The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result? State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067 (1985).” State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986).

We conclude that the defendant has failed to meet his burden of proving the harmfulness of the erroneously admitted evidence. The defendant claims that the challenged testimony permitted the jury to speculate that the defendant was a user of illicit drugs and thereby may have viewed him as more likely to commit these property crimes to finance his drug use. The jury could have reached this conclusion, however, as much from other, unchallenged evidence as from Inconstantes testimony. Officer Nelson Carvalho testified without objection that after he saw the defendant tuck something under the seat of the automobile, he reached under the seat and found an eyeglass case containing two syringes. “ ‘An erroneous ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case.’ ” State v. Randolph, 190 Conn. 576, 589-90, 462 A.2d 1011 (1983), quoting State v. Jeustiniano, 172 Conn. 275, 283, 374 A.2d 209 (1977). Additionally, on the basis of a review of the entire record, we find that it was unlikely that the evidence of the defendant’s possession of drug paraphernalia in this case contributed to the verdict.

V

The defendant’s final claims of error relate to the conviction of being a persistent serious felony offender pursuant to General Statutes §§ 53a-40 (b) and 53a-40 (g). The defendant claims that the trial court erred in denying his motion to dismiss this charge, and that the part of the information accusing him of being a persistent serious felony offender did not give him fair notice that he faced enhancement of his sentence on both of the underlying felony counts of which he was convicted in this case.

The facts relevant to these claims are as follows. The defendant was originally charged in a two-part information, the first part of which was a short form document, and the second part of which was in a long form format. In the short form document, the defendant was charged with third degree burglary, third degree larceny, illegal possession of narcotics, and possession of drug paraphernalia. The long form document accused the defendant of being a persistent serious felony offender pursuant to General Statutes § 53a-40 (b).

The defendant filed a motion for a bill of particulars. With the defendant’s consent, the state complied with the order to provide a bill of particulars by filing a long form information detailing the burglary and larceny counts. The drug related offenses contained in the original short form information were not included in the long form information. No new long form information was provided with respect to the persistent serious felony offender charge. Subsequently, the state filed an amended long form information containing the two substantive counts.

A

Prior to trial on the persistent serious offender charge, the defendant moved to dismiss that charge, arguing that the court lacked jurisdiction over this charge because it had not been included in the amended information, and that such a charge under § 53a-40 cannot be made in a separate information. The trial court denied the motion.

The defendant correctly points out that “[a] person cannot be charged as a persistent offender under § 53a-40 in a separate information or indictment. If the allegation of prior offenses is not included in an information or indictment charging a specific crime, it is ineffective.” State v. Lewis, 176 Conn. 270, 272-73, 407 A.2d 955 (1978). The defendant incorrectly asserts, however, that the original long form information charging him under § 53a-40 somehow disappeared when the amended information was filed following his motion for a bill of particulars. Since an information which alleges both a substantive charge and a recidivist charge must be in two separate parts; Practice Book § 619; and since the charge under § 53a-40 was already in long form in this case, it elevates form over substance to require the state to supply the defendant with another copy of the § 53a-40 portion of the information when it is clear that it was amending only the first part of the information as to its particulars. “The purpose of the rule requiring that the substantive and persistent felony offender violations be contained in the same indictment is to give the defendant adequate notice of the charges against him so that he may properly prepare his defense.” State v. Secore, 194 Conn. 692, 701, 485 A.2d 1280 (1984). Here, the record amply demonstrates that the defendant had notice of the recidivist charge and was not prejudiced or unfairly surprised when the second part of the information came to trial. Indeed, in the course of the defendant’s argument on one of his speedy trial motions, after the state’s amended information was filed, the defendant made clear that he still considered himself subject to the persistent serious offender charge. In the absence of a showing of prejudice or unfair surprise, we conclude that the trial court did not err in denying the defendant’s motion to dismiss the persistent serious felony offender charge.

B

The defendant also argues that the trial court, after finding him to be a persistent serious felony offender as charged in the second part of the information, erred in enhancing his sentence on both substantive offenses pursuant to General Statutes § 53a-40(g), because the information contained only a single allegation that the defendant was a persistent serious felony offender. The defendant argues that the single count of being a persistent serious felony offender deprived him of adequate notice that the state sought an enhanced sentence on both the burglary and the larceny offenses. We disagree.

There is nothing in the record to indicate that the defendant was surprised by the ultimate enhancement of the sentences on both underlying offenses. A single persistent serious felony offender charge included in an information accusing a person of two substantive counts, to which the same recidivist provision applies, both logically and legally indicates that the state intends to seek an enhanced sentence on any conviction arising out of the first part of the information. Consequently, the defendant’s claim that he was denied his constitutional right to notice of the charges against him based on the single count persistent offender allegation is without merit. Cf. State v. Scognamiglio, supra, 21-25.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-103 provides in pertinent part: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-124 provides in pertinent part: “(a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The value of the property or service exceeds one thousand dollars . . . . ”

       “[General Statutes] Sec. 54-127. rearrest. The request of said commissioner [of correction], or any officer of the department of correction so designated by the commissioner, or said board of parole or its chairman shall be sufficient warrant to authorize any officer of the department of correction, or any officer authorized by law to serve criminal process within this state, to return any convict or inmate on parole into actual custody; and any such officer, police officer, constable or sheriff shall arrest and hold any parolee or inmate when so requested, without any written warrant, and, for the performance of such duty, the officer performing the same, except officers of said department, shall be paid by the state, through the department of correction, such reasonable compensation as is provided by law for similar services in other cases.”
      General Statutes § 54-128 provides in pertinent part: “Any paroled convict or inmate who has been returned to the custody of the commissioner of correction or any institution of the department of correction for violation of his parole may be retained in the institution from which he was paroled for a period equal to the unexpired portion of the term of his sentence at the date of the request or order for his return less any commutation or diminution of his sentence earned except that the board of parole may, in its discretion, determine that he shall forfeit any or all of such earned time, or may be again paroled by said board.”

       “The Court: What’s the presumption of prejudice you are talking about?
      “Mr. Carvalko [Defense Counsel]: Well, your Honor, several fold. One, there has been some difficulty in tracking witnesses. For instance, I believe that one witness in fact her name was changed for one reason or another. She actually moved and we had to put investigator’s out to find her. At least what my investigator tells me she may get married and she may even leave the state; whether that occurs before April 14, I don’t know.
      “The Court: Did you find her?
      “Mr. Carvalko: Yes.
      “The Court: Is she under subpoena?
      “Mr. Carvalko: Yes, at this point.”

       “Mr. Carvalko: ... I believe if my recollection is correct, for sure on one occasion, probably more than one occasion, I apprised the Court that there was a very key witness by the name of Deborah Schlemmer who was in a position to observe my client, okay, during the events that ensued during this alleged crime and that statements she had made to the police in writing were very favorable to my client and that it was my concern that she might leave the jurisdiction. There were rumors that were circulating around town and that I was made aware of and I continued to emphasize that by that prospect occurring, my client would be gravely prejudiced.
      “A couple of days ago when I learned that we were going to go on trial, I started going back over sources to discover her whereabouts and learned that she quit the employment that she had. She couldn’t be located through her mother and we asked the investigator to serve her with a subpoena if she could be found. He went to a place this morning where he thought she might be and apparently she wasn’t there. Maybe she’s there and maybe she isn’t, but she certainly didn’t come to the door.
      “So at this point we are left without what would seem to be a very key individual in this case and for that reason I feel that my prior pleas that this case would be — my client could be deeply prejudiced by not having that witness, have come to fruition and I would ask the court to dismiss the counts against my client for lack of speedy trial notwithstanding the fact that he has been tried within the twelve months that the statute requires when one is incarcerated.
      * * *
      “The Court: The witness, from what you’ve said, Mr. Carvalko, is not missing. She just did not make herself available to your investigator to be served a subpoena is the way I interpret your statement.
      “Mr. Calvalko: Your honor, if you interpreted it that way, I am — I apologize because I didn’t mean to mislead the Court. My understanding, and we can ask Mr. Tom Bouley who’s in the courtroom to take the stand and precisely to take it out of the realm of speculation, testify as to what occurred this morning, but I understand he went to the door, he knocked on the door and he did not see her. Obviously, we’re thinking in our own mind that perhaps she’s there.
      “The Court: But you haven’t given me any evidence that she has left this State, the State of Connecticut. You just say that nobody answered the door. There’s a difference between not answering a door or being at work and not there or refusing to answer the door and being not within the State of Connecticut.
      “Mr. Carvalko: Well, if we can’t find her, your Honor—
      “The Court: That’s not what you said.
      “Mr. Carvalko: Well, I’ve indicated we can’t find her. She left her place of employment. Her mother indicates she doesn’t know where she is and Mr. Bouley has made an attempt to serve her with subpoenas and can’t locate her.
      “The Court: Based on information that he knew where she was.
      “Mr. Carvalko: Based upon information that he thought he knew where she was, yes.
      “The Court: But he has no information that she does not live there.
      “Mr. Carvalko: All right, your Honor.
      “The Court: Is that true?
      “Mr. Carvalko: I think that’s true.
      “The Court: All right then, as far as we know, she may still be living there.
      “Mr. Carvalko: She may still be living there.
      “The Court: She may not be living there, but you have not produced evidence to say that she’s not. I’m not talking about — And in cases like this, we can’t talk about possibilities. We have to talk about what is. Either she is available in the State of Connecticut someplace, may not want to testify, may not know that she’s being asked to testify, may not know anything. If she’s in the State of Connecticut and is subject to process, then your motion to dismiss is improper.”

       General Statutes § 54-82c, entitled “Prisoner’s Right to Speedy Trial On Pending Charges,” provides in pertinent part:
      “(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, community correctional center administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and decisions of the parole board relating to the prisoner.
      “(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, community correctional center administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
      “(c) The warden, community correctional center administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.”
      The defendant does not claim that he was denied his right to a speedy trial under Practice Book § 956B. Under that section, the defendant’s trial was required to commence within one year from the date of the filing of the information. The state complied with that requirement in this case.

       General Statutes § 54-82d provides: “If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same.”

       The sixth amendment to the United States constitution provides, in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” This constitutional right is made applicable to state prosecutions through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 368 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).

       Article first, § 8 of the Connecticut constitution provides, in pertinent part: “[I]n all prosecutions by indictment or information, the accused shall have a right to a speedy, public trial . . . .”

       Although the defendant relies on both the sixth and the fourteenth amendments to the United States constitution and article first, § 8 of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state constitutional claims. We decline to undertake such analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986).

       It is not necessary to determine in this appeal precisely when the defendant’s trial began for speedy trial purposes, as the difference between September 12 and September 14 is not significant under the facts of this case.

       At trial, the following statement was marked for identification by the defendant, and included in the record, after the trial court precluded its admission into evidence:
      “STATEMENT OF DEBORAH L. SCHLEMMER
      I, Deborah L. Schlemmer, give the following statement after being fully advised of my constitutional rights. On October 5,1983,1 was at my home at 22 Well Ave., Danbury, Conn. Fuzzy Robert Foshay came to my house and with him was my boyfriend Warren Booth and Bobby Hyde, and Foshay’s wife and daughter. Warren wanted to sell a 19” TV to a Kenny on Shepherd Rd. So after going to the bank and then to a store to buy soda, Fuzzy dropped off his wife and daughter and the rest of us went towards the Germantown area. Kenny already knew about the TV and he works where Ace Glass used to be. His truck was there but Kenny was not there. So we went to Kenny’s house on Shepherd Rd. Warren got out of the car and went to Kenny’s door and knocked on the door several times but no one was there. Warren came back to the car and said that Kenny was not at home. No one answered the door. Fuzzy said where are we going now. Bobby Hyde then said wait a minute and let me try. Warren said Bobby don’t go doing nothing. Warren said don’t go and get me into any shit. Bobby then went into the glassed in porch. While we were sitting in the car. I saw Bobby knocking on the door. I heard two noises that sounded like someone kicking in the door. Warren said let’s get the hell out of here. We pulled into Jimmy’s Market on the side and then we went around the block and then came back to Jimmy’s Market and we found Hyde next to Jimmy’s Market standing with something large in his hands. Hyde got into the front seat with the machine and said let’s get the hell out of here. Bobby Hyde said let’s go and get rid of it and get some money. We went to Ciminos Store. Fuzzy got out and came back with a soda. Fuzzy then drove us to Eden Drive and Fuzzy got out of the car at the top of Eden Dr. and Bobby Hyde drove while Warren and I stayed in the back seat. Hyde stopped at the project, lower part. Hyde got out of the car and went to the door and knocked. Both Hyde and the black man then came to the car and Hyde showed the man the machine but the black man said that he did not have the money, that he did not want it. Hyde got back into the car and we went to pick up Fuzzy on top of the hill. Hyde got out of the car with the machine and put it in the trunk of the car and we then drove off. Hyde wanted to sell the machine for $300.00 and he didn’t know where to get rid of it. Fuzzy said that there is a guy that he knew that might buy it but the phone number is at Fuzzy’s house. So we drove to Fuzzy’s house, went up the driveway, when we met the Police Officer who told us to stop right there. Shortly after, other police arrived. I saw Hyde with a silver pocket watch and a ladies gold watch in his hands while he was in the car. I do not know what he did with it after the arrest.
      I FULLY UNDERSTAND THAT IF I MAKE A STATEMENT THAT IS UNTRUE AND WHICH IS INTENDED TO MISLEAD A LAW ENFORCEMENT OFFICER IN THE PERFORMANCE OF HIS OFFICIAL FUNCTION, I WILL BE IN VIOLATION OF SECTION 53A-157 OF THE CONNECTICUT STATE STATUTES. A FALSE STATEMENT IS A CLASS A MISDEMEANOR.

        /SI DEBORAH L. SCHLEMMER”

       When a.person is convicted under more than one statutory alternative, the judgment cannot stand unless the evidence was sufficient to establish guilt under each statutory provision upon which the trier of fact may have relied. See State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987). The defendant does not, however, claim that the evidence was insufficient to convict him of larceny by obtaining or by withholding, as a principal or as an accessory. His claim is only with respect to the alternative of larceny by taking and we therefore limit our review to that statutory basis.

       General Statutes § 53a-40 (b) provides in pertinent part: “A persistent serious felony offender is a person who (1) stands convicted of a felony; and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime.”
      General Statutes § 53-40 (g) provides: “When any person has been found to be a persistent serious felony offender, and the court is of the opinion that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration will best serve the public interest, the court in lieu of imposing the sentence of imprisonment authorized by section 53a-35 for the crime of which such person presently stands convicted, or authorized by section 53a-35a if the crime of which such person presently stands convicted was committed on or after July 1,1981, may impose the sentence of imprisonment authorized by said section for the next more serious degree of felony.”
      In this case, the court pursuant to these statutes, enhanced the defendant’s sentences for the class D felonies of burglary in the third degree and larceny in the third degree by imposing sentences authorized for class C felonies.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Gary L. Hanson
    (3928)
    Dupont, C. J., Daly and Bieluch, Js.

      Argued March 31
    decision released August 11, 1987

      Vincent J. Giedraitis, public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, was Donald B. Caldwell, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals, after a trial to the court, from his conviction of arson in the first degree, in violation of General Statutes § 53a-lll. The defendant claims that the court erred (1) in the burden of proof used, (2) in the findings made, and (3) in the conclusions drawn as to the affirmative defense provided by General Statutes § 53a-13. The defendant also claims error in the court’s determination that it had no discretion to release the defendant from incarceration pursuant to General Statutes § 17-251.

The trial court rendered a lengthy and detailed decision in open court at the conclusion of the trial, stating its factual findings and legal conclusions. The finding of guilty was rendered by the court on September 11,1984. The defendant was examined prior to sentencing to determine his mental condition in accordance with General Statutes § 17-244. The court sentenced the defendant on January 9, 1985, to a term of fifteen years, but, in light of the report on his mental condition, ordered that the defendant be committed to the Whiting Forensic Institute for treatment. General Statutes § 17-245. On January 7, 1986, the court held a hearing after a reexamination of the defendant as provided in General Statutes § 17-250, and transferred him to the custody of the commissioner of correction to serve the remainder of his sentence. General Statutes § 17-251.

The defendant’s first claim of error is that the court erred in applying a higher standard of proof than the fair preponderance of the evidence to the defendant’s affirmative defense, and asks this court to determine that the defendant had met the fair preponderance standard. General Statutes § 53a-12 (b).

The defendant’s claim that the trial court applied an erroneous standard of proof rests upon several comments made by the court at the time the defendant was sentenced. At the sentencing hearing, which was held several months after the rendering of the verdict of guilty, the court stated: “You are to be sentenced, confined to the Whiting Institute for custody, care and treatment. You are entitled to a hearing, and that is of course what we are here about this time. Now, based upon the testimony which I have heard at this hearing, it appears to this Court that, although the Court is not fully convinced that you are not now suffering from a mental illness, the Court certainly was not fully convinced that you were suffering from a mental illness which means you are dangerous to yourself or to others at the time of the crime; that the court is not fully convinced that you are suffering from such illness at this time. There is, however, in the Court’s mind some doubt.”

The defendant contends that these statements demonstrate that the court applied, to the affirmative defense pleaded by the defendant, a higher standard than the requisite fair preponderance of the evidence. These statements were not, however, related to the court’s determination of guilt or innocence, but rather to the imposition of a sentence. The statements related to the trial court’s choice of whether to confine the defendant for psychiatric care, or to order him committed to the custody of the commissioner of correction.

The trial court’s remarks at the time the judgment of guilty was rendered, four months earlier, belie this claim of error. When rendering its verdict, the court stated prior to its summary of the evidence, that the affirmative defense had to be “proven by the defendant by a fair preponderance of the evidence.” Subsequent to its review of the evidence, the court concluded that “the defense has failed to prove by a fair preponderance of the evidence that the defendant lacked capacity as a result of mental illness either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of law.” The court had also noted that the question of the effect of the mental disease or defect was one of degree, and that while the defendant was probably suffering from some degree of mental illness or emotional upset, “[t]he general and professional evidence points to the conclusion that he did appreciate the wrongfulness of his conduct at the time he committed the acts . . . .” The transcript of the proceedings at which the defendant was found guilty makes clear that the court applied the proper burden of proof to the evidence presented at trial.

The defendant also seeks to have us determine that he had established his affirmative defense by a fair preponderance of the evidence. The evidence presented by the defendant was the testimony of several psychiatric experts. Their testimony included the opinions they held about the mental condition of the defendant at the time that he ignited the fire for which he was convicted of arson. In rebuttal, the state presented testimony by fire department personnel who spoke to the defendant at the scene of the fire, the police detective who interviewed the defendant after the fire, and the defendant’s wife and mother-in-law. “[0]ur review of the conclusions of the trier of fact, whether it be a judge, a panel of judges or a jury is limited.” State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We construe the evidence in the light most favorable to sustaining the trial court’s judgment. The conclusion of the trier of fact must be affirmed if it is reasonably supported by the evidence and logical inferences drawn from the evidence. Id.

The state presented no expert testimony on the defendant’s mental disease, defect, or lack thereof, but has no obligation to do so in order to refute evidence of the affirmative defense of insanity. State v. Evans, supra, 238-39; State v. Ontra, 178 Conn. 480, 485-86, 423 A.2d 134 (1979). The trier was presented with conflicting evidence about the defendant’s mental condition, and was entitled to weigh that evidence in considering the defendant’s mental condition. State v. Evans, supra, 239. The state extensively cross-examined the psychiatric witnesses, and presented testimony relevant to the defendant’s history and his conduct at the scene of the crime. The defendant’s psychiatric witnesses did not testify to an unshakable conviction that it was the defendant’s mental condition, absent the ingestion of alcohol, which was the cause of his criminal behavior. The court is not compelled to accept the testimony of a psychiatric expert as conclusive on the issue of the defendant’s mental condition as it relates to his guilt of the crime with which he is charged. State v. Evans, supra, 238-39. The trial court’s duty is to weigh the evidence and conclude whether the defendant has established his affirmative defense. State v. Evans, supra; State v. Ontra, supra; see also In re Juvenile Appeal (Docket No. 9260), 184 Conn. 157, 170-71, 439 A.2d 958 (1981). In this case, the court did perform that duty, and specifically found, as to the affirmative defense of insanity, that “[t]he opinions of the psychiatrists are contrary to the weight of the evidence before the court .... [T]he defense has failed to prove by a fair preponderance of the evidence that at the time he committed the crime he lacked substantial capacity as a result of his mental illness to appreciate the wrongfulness of his act to control his conduct within the requirements of the law.” The evidence at trial, which was conflicting, supports the finding that the defendant had not borne his burden of proof on the affirmative defense, and our review of the record does not lead us to conclude that the court erred in arriving at its finding of guilt.

The defendant also contends that the court erred by assigning to him the burden of proving that the ingestion of alcohol did not cause the mental disease or defect which impaired his capacity to appreciate the wrongfulness of his act or to conform his conduct to the requirements of law. The affirmative defense of insanity is not available when the mental disease or defect has been proximately caused by the voluntary ingestion of intoxicating liquor. General Statutes § 53a-13 (b). The defendant asserts that the court’s finding that “there is no credible evidence that the defendant would have committed the crime of arson in the first degree if he had not let down the bars by drinking alcoholic beverages before the incident” erroneously placed on him the burden of proving that alcohol did not contribute to such conduct.

A reading of the plain language of the statute makes it clear that the affirmative defense is unavailable where the voluntary ingestion of intoxicating liquor has caused the disease or defect which has rendered the defendant substantially incapable of appreciating the wrongfulness of his conduct or of conforming his conduct to the law. The state may offer evidence that intoxicating liquor was voluntarily ingested so as to cause the disease or defect, to refute the evidence that insanity absolves the defendant of criminal responsibility.

The defendant’s argument is that the court found that the defect from which the defendant suffered was so severe that he lacked the capacity either to appreciate the wrongfulness of his conduct, or was unable to conform his conduct to the requirements of law, but failed to find that this defect was caused by his voluntary ingestion of alcohol. If the trial court’s decision is interpreted to hold that the mental disease or defect was present, but was caused by the voluntary ingestion of alcohol, the state in this case has borne its burden of rebutting the defense. The evidence at trial established that the only violent acts the defendant had ever committed all involved the ingestion of alcohol. This evidence, in conjunction with the psychiatric testimony of various theories of mental disease or defect, and testimony relating to the defendant’s conduct at the scene, reasonably support a conclusion that it was the ingestion of alcohol which caused the defect which substantially impaired the defendant at the time he lit the fire. The court’s findings that the defendant had not proved his affirmative defense did not mean that the court failed to find that the defendant had voluntarily ingested alcohol. There is nothing in the record to indicate that the court erred in its application of the statutory requirements to the facts in this case.

The defendant’s final claim is that the trial court erred during the hearing conducted pursuant to General Statutes § 17-251. The defendant was brought before the court on January 7, 1986, for a hearing to determine whether he should be discharged from Whiting Forensic Institute as recommended by its report, and what his disposition should be upon discharge. The trial court ordered the defendant discharged and ordered him transferred to the custody of the commissioner of correction to serve the remainder of his sentence.

In so doing, the court ruled that it could order the release of the defendant only “if he is eligible for release . . . but I don’t think the court can release him in mid-sentence.” The record is therefore clear that the trial court ruled that it was constrained not to consider releasing this defendant from the custody of the commissioner of correction. See State v. Jenkins, 198 Conn. 671, 674-75, 504 A.2d 1053 (1986). The defendant claims that the court had the discretion under the statute to order the release of the defendant upon the recommendation of discharge from the institute. The state conceded on appeal that the court did have such discretion. We, however, are not bound by such a concession. State v. Putnoki, 200 Conn. 208, 219 n.6, 510 A.2d 1329 (1986).

In this case, the defendant was found guilty, and was thus held criminally responsible for his acts. State v. Evans, supra, 245 (Peters, C. J., dissenting). His commitment to Whiting for psychiatric care was ordered pursuant to a statutory scheme which provides that persons who have been convicted of certain types of crimes who may require psychiatric care and custody may be sentenced to institutions where such care is available. General Statutes §§ 17-244, 17-245. Persons who are sentenced in accord with this scheme may not be subject to care, custody and treatment beyond the maximum period of the sentence for the crime. General Statutes § 17-245 (c). The provisions of General Statutes §§ 17-244 and 17-245 are separate and distinct from those which govern the disposition of persons who have been found not guilty by reason of insanity, and who are, therefore, not held criminally responsible for their acts. General Statutes §§ 17-257a through 17-257w. The statutory scheme reveals that the director of the institute shall review the semi-annual reexamination reports of the patient, and make a determination as to the disposition of the patient. The possible dispositions include the discharge of the patient from the institute, if his condition has sufficiently improved to warrant such discharge. There is a provision in the statute that a patient who it is determined should be discharged “shall not be released except upon order of the court by which he was confined under said section, after notice to said court by the director.” General Statutes § 17-251 (a) (4).

The director in this case notified the court of his determination by filing a copy of his report and recommendation that the defendant had improved sufficiently to be discharged from the institute. The court thereupon ordered the defendant discharged from the institute, but returned to the custody of the commissioner of correction. The statute mandates that the court shall, upon ordering the discharge of the defendant, determine whether he “should be released, granted parole or returned to the custody of the commissioner of correction.” General Statutes § 17-251 (b). The issue we face, therefore, is whether the provision for the release of the defendant upon discharge from the institute confers upon the court the discretion to modify its prior sentence.

Confinement of defendants convicted and sentenced under the penal code who are committed for psychiatric care may not exceed the maximum period specified in the sentence. General Statutes § 17-245 (c). Thus, a defendant who has served the maximum period of his sentence can no longer be confined at the institute. A person found not criminally responsible but committed for psychiatric care and custody may likewise be committed only for the maximum period for which he or she could have been confined had there been a conviction. General Statutes §§ 17-257c (e) (1), 17-257n (c).

When the required hearing upon the director’s recommendation is conducted pursuant to this statutory scheme, and the court has determined that the defendant should be discharged, it must then determine what his disposition shall be in conjunction with his discharge from the institute. The statute mandates that the court “shall then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction.” General Statutes § 251 (b). There is, therefore, no doubt that the court could grant parole to an eligible defendant, or, as in this case, order him to the custody of the commissioner of correction. Although the statute provides for a final alternative, release, it must be read so that all of its parts have meaning, make common sense, and avoid bizarre results. In re Juvenile Appeal (84-6), 2 Conn. App. 705, 709, 483 A.2d 1011 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985); Eagle Hill Corporation v. Commission on Hospitals & Health Care, 2 Conn. App. 68, 75, 477 A.2d 660 (1984). No word in the statute should be read to be superfluous and without meaning, and “[wjhere, as here, more than one statute is involved, we presume that the legislature intended them to be read together to create a harmonious body of law . . . .” Berger v. Tonken, 192 Conn. 581, 589, 473 A.2d 782 (1984); Vartuli v. Sotire, 192 Conn. 353, 362, 472 A.2d 336 (1984); State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984). We must construe these statutes on the institutionalization of persons convicted of crime with the statutes regarding their sentencing and punishment in a manner which is harmonious, and consistent with “each to leave room for the meaningful operation of the other.” State v. West, supra, 494.

In this case, the defendant was committed to the institute in conjunction with his conviction under the penal code. Indeed, the statutory scheme under which the hearing took place is concerned with the disposition of persons who have been convicted and sentenced under the penal code. We read the use of the word “release,” therefore, in conjunction with its use in the penal code. Under the statutory scheme, the defendant may not be held in the custody of the institute beyond the maximum period of his sentence, as contrasted to the alternative of ordering his return to the custody of the commissioner of correction. We, therefore, read the use of the word “release” to vest the court with discretion, upon its determination that the defendant should be discharged from the institute, to modify the original sentence of the defendant if he would otherwise be eligible for release under the penal code.

The “release” of a criminal defendant from the custody of the commissioner of correction is ordinarily ordered by the court either as a conditional or an unconditional discharge. The determination of whether to release a defendant by conditional or unconditional discharge is made at the time of sentencing, but persons convicted of any class A felony are not eligible for such release. General Statutes §§ 53a-28, 53a-29. Defendants who have received definite sentences between two and five years may be conditionally discharged by the sentencing court after a hearing and for good cause shown. General Statutes § 53a-39. The defendant in this case falls into neither of the above classes of persons eligible for release, as he was convicted of a class A felony and sentenced to a term of incarceration. Nor is the defendant eligible for an unconditional discharge, that is, a release without the imposition of any condition. General Statutes § 53a-34. The use of the word “release” in the statutory scheme regarding the disposition of persons convicted of crimes, read in light of the dual legislative purposes of psychiatric care and criminal rehabilitation and punishment, should be read to apply to those persons eligible for release from custody under the penal code. To hold otherwise would lead to the bizarre and irrational result that persons who are criminally responsible for their actions, who have been convicted and sentenced and who would not be otherwise eligible for discharge from the custody of the commissioner of correction, might serve only six months in a psychiatric institute, and then upon reexamination and a hearing, be released from any further confinement.

Under the defendant’s construction of General Statutes § 17-251, the fact that his conviction was followed by a commitment to the institution and a subsequent recommendation of discharge by the director could have the same effect as an initial finding that he had proved his affirmative defense, that is, he would be absolved of all criminal responsibility for his behavior, as if his guilt were expiated by the care, custody and treatment of the institution. State v. Evans, supra, 244 (Peters, C. J., dissenting). Such a result would be anamolous.

Even if the trial court had recognized that there are circumstances when a defendant confined to the institution after conviction may be released, the facts of this case would have precluded the exercise of such discretion.

There is no error.

In this opinion the other judges concurred.

       The defendant was found not guilty of two counts of attempted murder in violation of General Statutes §§ 53a-54a and 53a-49.

       General Statutes § 53a-lll provides in pertinent part: “(a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       General Statutes § 53a-13 provides: “(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.
      “(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescription.
      “(c) As used in this section, the terms mental disease or defect do not include (1) an abnormality manifested only by repeated criminal or otherwise antisocial conduct or (2) pathological or compulsive gambling.”

       General Statutes § 17-244 (a) provides, in pertinent part: “[A]ny court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers . . . may if it appears to the court that such person is mentally ill and dangerous to himself or others, upon its own motion or upon request . . . order the commissioner [of mental health] to conduct an examination of the convicted defendant by qualified personnel of the [Whiting Forensic] institute. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the institute for additional examination or should be sentenced in accordance with the conviction.”

       General Statutes § 17-245 (a) provides in pertinent part: “If the report [pursuant to § 17-244] recommends sentencing in accordance with the conviction and confinement in the institute for custody, care and treatment, then during the period between the submission of the report and the disposition of the defendant by the court such defendant shall remain at the institute and may receive such custody, care and treatment as is consistent with his medical needs.”
      Subsection (c) of that statute provides in part: “If the court finds such person to be mentally ill and dangerous to himself or others and to require custody, care and treatment at the institute, it shall sentence him in accordance with the conviction and order confinement in the institute for custody, care and treatment provided no court may order such confinement if the report does not recommend confinement at the institute. The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence.”

       General Statutes § 17-250 provides that an institutionalized defendant be reexamined at least once every six months. That examination shall ascertain whether the patient is mentally ill and in need of custody, care and treatment at the institute and the record of the examination may include a recommendation for transfer of the patient or a change in confinement status.

       General Statutes § 17-251 provides: “(a) As soon as is practicable the director [of Whiting Forensic Institute] shall act upon the examination reports of his staff. Upon review of each report and upon consideration of what is for the benefit of the patient and for the benefit of society, the director shall determine that such patient: (1) Remain in the institute for further treatment or be transferred to some other facility under the control of the commissioner or (2), if such patient is under commitment, be granted a leave of absence or extended visit or (3), if such patient is under sentence and is eligible for parole, be granted a parole; or (4) has sufficiently improved to warrant his discharge from the institute provided if such person was sentenced and confined in the institute under section 17-245, he shall not be released except upon order of the court by which he was confined under said section, after notice to said court by the director.
      “(b) The' court, upon its own motion or at the request of the defendant or his attorney, may at any time hold a hearing to determine whether such person should be discharged from the institute prior to the expiration of the maximum period of his sentence. Prior to such hearing, the institute shall file a report with the court concerning the patient’s mental condition. The court may appoint a physician specializing in psychiatry to examine the patient and report to the court. Such hearing shall be held at least once every five years. If the court determines the patient should be discharged from the institute, it shall then determine whether the patient should be released, granted parole or returned to the custody of the commissioner of correction.”

       General Statutes § 53a-12 (b) provides: “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.”

       The defendant also argues that the trial court considered evidence of one of the courtroom sheriffs personal lives as relevant to the defendant’s claim that he was suffering from the post-traumatic stress disorder known as “Vietnam Syndrome.” At the time of the remarks about the sheriffs adjustment to society after having served in Vietnam, the defendant was presenting a psychiatric expert whose testimony included the possibility that the defendant was suffering from that disorder. The trial court asked the witness a series of questions, using the sheriff as an example, in seeking a fuller understanding of that disorder.
      The evidence considered at a sentencing hearing may be “information that would be inadmissible for the purpose of determining guilt.” State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986).

       We note that the trial court’s decision does not compel the conclusion that at the time the defendant committed the crime he was suffering from a defect which rose to the level necessary for the affirmative defense of General Statutes § 53a-13. The decision may be read to conclude that the court found that the lowering of the defendant’s inhibitions and his decision to commit arson were causally unrelated to a mental defect.

       We note that our Supreme Court has stated that under the present statutory scheme that “[t]he ordinary prisoner, who is being punished for a crime, must serve the remainder of his term of imprisonment regardless of whether treatment for his mental condition has been successful.” State v. Reed, 192 Conn. 520, 529-30, 473 A.2d 775 (1984). That statement is not controlling here, because it was made in dictum, in a case relating solely to the liability of insanity acquittees for the cost of their court-ordered institutionalization.

       General Statutes § 17-245 (c) provides, in pertinent part: “The defendant shall not be subject to custody, care and treatment under this part beyond the maximum period specified in the sentence.”