author: Arthur H. Healey, J. Callahan, J.,

text:
    State of Connecticut v. Lester M. Allen
    (13113)
    Peters, C. J., Healey, Shea, Callahan and Glass, Js.

      (One justice dissenting)

    Argued September 29
    decision released November 24, 1987

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

After a jury trial, the defendant, Lester M. Allen, was found guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), assault on a peace officer in violation of General Statutes § 53a-167c (a) (1), attempted murder in violation of General Statutes §§ 53a-54a (a) and 53a-49, and having a weapon in a motor vehicle in violation of General Statutes § 29-38. The defendant was sentenced to a prison term of not less than twenty years and not more than thirty years. The defendant appealed to the Appellate Court which affirmed the convictions. State v. Allen, 9 Conn. App. 169, 517 A.2d 1043 (1986). This court granted the defendant’s petition for certification.

The sole question presented by this appeal is whether the Appellate Court erred in failing to find an abuse of discretion when the trial court permitted the state to reopen its case after it had rested and after the defendant’s motion for judgment of acquittal had been denied. We reverse the Appellate Court and remand to that court to remand to the trial court with direction to render a judgment of acquittal on the charge of having a weapon in a motor vehicle.

The jury could reasonably have found the following facts: On September 20,1980, officer Thomas Master-son of the Stratford police department observed a car with an expired registration. After the officer had stopped the defendant’s ear and as the officer was exiting his patrol car, the defendant took a gun from his pocket and fired a total of four shots before fleeing the scene. The defendant was found and arrested in Georgia three years after the incident.

The following background facts that occurred at trial are not in dispute. In the substitute information, the state charged that the defendant “did knowingly have in a motor vehicle occupied by him, a certain pistol, without a legal permit therefore [sic]” in violation of General Statutes § 29-38. After the state had rested its case, the defendant moved for judgment of acquittal on the charge of having a weapon in a motor vehicle, claiming that the state had not established a prima facie case under § 29-38. The defendant at that time argued that the state had failed to establish that the weapon was a pistol within the meaning of the statute by failing to offer any evidence on the length of its barrel. See State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977). Under General Statutes § 29-27, which controls § 29-38, a pistol or revolver is a firearm having a barrel of less than twelve inches in length. The defendant was apparently confused about the applicable statute, claiming that General Statutes § 53a-3 (18) governed the definition of a pistol for violations of § 29-38. This apparent confusion makes no real difference because the definition of a pistol or revolver is exactly the same under both statutes: it is a firearm with a barrel less than twelve inches in length. Thus, although the defendant did not cite the applicable statute, he correctly stated the law on that issue. The state also had overlooked the applicability of § 29-27 but argued that no definition of a pistol or revolver applied and asserted that having any weapon in a motor vehicle without a permit violated § 29-38. The court agreed with the state and denied the defendant’s motion.

On the next court day, before the defendant had begun to present his case, the state moved to reopen its case-in-chief in order to present evidence on the length of the barrel of the firearm. In its argument to reopen, the state claimed that although the defendant’s argument was incorrect, the state nevertheless was “hedging [its] bet” because “[the state was] afraid the Supreme Court may determine that the penal code definition of pistol should be grafted on to the weapon in a motor vehicle statute . . . and [it would] rather be safe than be sorry.” Accepting this argument, the court granted the motion over the defendant’s objection and Masterson, the victim of the shooting who had testified earlier, then testified that the barrel length was approximately two inches.

The defendant argues that the trial court’s decision to allow the reopening of the state’s case-in-chief violated the double jeopardy provision of the fifth amendment to the United States constitution and was an abuse of its discretion. Although the defendant claimed in his brief that the denial of his motion for judgment of acquittal implicated the prohibition against double jeopardy, he conceded at oral argument before us that the entire issue was better analyzed as a claim of an abuse of discretion. The defendant maintains that to permit the state to reopen its case-in-chief after the defendant has pointed out in his motion for judgment of acquittal the specific particulars why the state had failed to present a prima facie case rewards the state for its “laxity” and in practical effect turns the defendant’s attorney into a prosecutorial arm of the state.

The state, on the other hand, although it agrees that a defendant might be penalized by a timely and meritorious motion for judgment of acquittal, asserts that the reopening in this case filled an evidentiary gap which contributed to “the search for facts and truth” and is, thus, perfectly proper. State v. Allen, supra, 174.

The Appellate Court agreed with the defendant that the state had the burden to prove that the firearm met the statutory definition of a pistol. Id., 172, citing State v. Brown, supra, 260. Noting that the pistol itself was not in evidence, the Appellate Court held that “initially ‘[t]he state failed to introduce any evidence upon which the jury could find that the barrel of the firearm was in fact less than twelve inches in length.’ ” State v. Allen, supra.

The Appellate Court recognized that the defendant was “in a sense penalize[d]” by making such a motion and that a reopening could discourage him from doing so and could encourage him to wait to make such a motion until the last available moment in hopes that the missing evidence became unavailable. Id., 174. The court, however, also maintained that “ ‘ “a trial is not a game of technicalities, but one in which the facts and truth are sought.” Eskridge v. State, 258 Ind. 363, 369, 281 N.E.2d 490 (1972).’ ” State v. Allen, supra, quoting State v. Zayas, 195 Conn. 611, 623, 490 A.2d 68 (1985) (Healey, J., dissenting).

Balancing these two competing concerns, the Appellate Court relied on the “traditional rule” that either party may present omitted or further evidence “ ‘ “when mere inadvertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur.” ’ (Emphasis added.) [State v. Brigandi, 186 Conn. 521, 546, 442 A.2d 927 (1982)], quoting United States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980).” State v. Allen, supra, 175. The Appellate Court attributed the state’s failure to introduce evidence of the length of the gun barrel to the state’s own misperception, compounded by a different misper-ception by the defendant. Id., 176. That court concluded that these circumstances demonstrated that the state’s evidentiary failure was inadvertent and that this case presented a compelling circumstance for granting the motion to reopen. Id. The Appellate Court also ruled that the defendant suffered no “legal prejudice.” Id.

We begin our analysis by recognizing the fundamental concept that the state has the burden of proving every element of an alleged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Griffin, 175 Conn. 155,162, 397 A.2d 89 (1978). The defendant’s presumption of innocence until proven guilty is an “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” Coffin v, United States, 156 U.S. 432, 453,15 S. Ct. 394, 39 L. Ed. 481 (1895). A criminal defendant has the right to put the state to its burden and need not defend until and unless the state has presented a prima facie case. “The defendant, under our Constitution, need not do anything at all to defend himself, and certainly he cannot be required to help convict himself.” Williams v. Florida, 399 U.S. 78,112, 90 S. Ct. 1893, 26 L. Ed. 2d 446 (1970) (Black, J., dissenting). “ ‘One of the greatest safeguards for the individual under our system of criminal justice is the requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense. “Ours is the accusatorial as opposed to the inquisitorial system. . . . Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation.” ’ Cephas v. United States, 324 F.2d 893, 895 (D.C. Cir. 1963), quoting Watts v. Indiana, 338 U.S. 49, 54, 69 S. Ct. 1347, 93 L. Ed. 1801 (1949) . . . .” State v. Rutan, 194 Conn. 438, 443, 479 A.2d 1209 (1984).

In this case, the state failed to introduce any evidence as to the length of the barrel of the pistol, admittedly an essential element of the crime of having a weapon in a motor vehicle. State v. Brown, supra. As the state conceded at oral argument before us, had the defendant remained silent until after the verdict had been rendered, the omission of this evidence would have required a judgment of acquittal either in the trial court or on appeal. With the review of an alleged deprivation of a fundamental constitutional right permitted under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), together with the federal constitutional requirements of In re Winship, supra, the defendant would have been entitled to prevail on appeal.

The defendant, instead, made a motion for judgment of acquittal under Practice Book § 883. The defendant even cited State v. Brown, supra, as governing the outcome of the issue in this case. Having specifically brought this evidentiary gap to the attention of the state, the defendant was effectively victimized by his own diligence as the state used the reopening to supply the missing element of the crime, thus assuring the defendant’s conviction.

Practice Book § 883 permits the defendant to make a motion for judgment of acquittal and thus avoid presenting a defense if the state has not made out a prima facie case. If the evidence would not reasonably permit a finding of guilty, § 883 provides that the “judicial authority shall order the entry of a judgment of acquittal . . . . ” (Emphasis added.) In testing whether the evidence is sufficient to sustain a verdict on a § 883 motion, this court has held that, “[ejach essential element of the crime charged must be established by such proof . . . . ” State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). This case was an appropriate one for such a motion to be granted as the state had not made out a prima facie case that the defendant had violated General Statutes § 29-38 because no evidence concerning the length of the gun barrel had been presented.

An important concern in this case is the viability of Practice Book § 883 in circumstances such as this. If we hold that it is not an abuse of discretion to allow the state to supply evidence of a missing element of a crime identified by the defendant in his motion for judgment of acquittal after the state has rested, would any competent defense attorney ever make such a motion again? As the state conceded at oral argument, § 883 would become a “dead letter” if the subject matter of the motion clearly concerned an element of the crime. As the United States Supreme Court has observed, “[tjhat any judicial system should encourage litigants to raise objections at the earliest rather than the last possible time seems self-evident.” United States v. Tateo, 377 U.S. 463, 468 n.4, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964). In this type of case, however, the latter would occur if we sustained the action of the Appellate Court. Rather than make this motion at the close of the state’s case or even at any time before the jury has rendered a verdict, the defendant would be well advised to wait to make his constitutional claim on appeal.

Although we agree that an important function of a trial is a “search for facts and truth”; State v. Allen, supra, 174; a trial must also be fair. State v. Corchado, 200 Conn. 453, 459, 512 A.2d 183 (1986) (“discretion to be exercised must be informed and guided by considerations of fundamental fairness that are ingrained in the concept of due process of law”). “ ‘Every accused is entitled to a fair trial . . . at which the legal rights of the accused are safeguarded and respected.’ Wojculewicz v. Cummings, 143 Conn. 624, 632-33,124 A.2d 886 (1956).” State v. Lovelace, 191 Conn. 545, 553, 469 A.2d 391 (1983), cert. denied, 465 U.S. 1107, 104 S. Ct. 1613, 80 L. Ed. 2d 142 (1984). The time when the state rests its case-in-chief marks an important juncture in a criminal trial. It is “ ‘[t]o bring to an end voluntarily the introduction of evidence, the right to introduce fresh evidence, except in rebuttal, being thereupon lost.’ ” State v. Martin, 53 N.M. 413, 417, 209 P.2d 525 (1949). The state, which has the burden to prove every element of the crimes charged beyond a reasonable doubt, is required to present enough evidence so that a jury, could reasonably find the defendant guilty; failing such an evidentiary showing, it risks a successful motion for judgment of acquittal. Practice Book § 883. In United States v. Hinderman, supra, 996, the court warned that “the government’s case-in-chief should not be treated as an experiment that can be cured after the defendant has, by motion, identified the failures.” The California Supreme Court has recognized that “to require a defendant to state specific grounds in support of the motion for acquittal would place the burden upon him to point out to the prosecutor, as well as to the court, the gaps in the prosecution’s case. Such a requirement would come perilously close to compelling a defendant to aid in his own prosecution and would lessen the prosecutor’s burden to prove each and every element of the case beyond a reasonable doubt.” People v. Belton, 23 Cal. 3d 516, 522, 591 P.2d 485, 153 Cal. Rptr. 195 (1979).

We recognize the wide discretion enjoyed by the trial court to permit the reopening of a case after either side has rested. State v. Ricker, 90 Conn. 147, 152, 96 A. 941 (1916). “ ‘ “The reopening of a criminal case either to present omitted evidence or to add further testimony after either of the parties has rested is within the sound discretion of the Trial Court. [Citations omitted].” United States v. Wilcox, 450 F.2d 1131,1143 (5th Cir. 1971).’ United States v. Sisack, 527 F.2d 917, 919 (9th Cir. 1976).” State v. Brigandi, 186 Conn. 521, 545-46, 442 A.2d 927 (1982). “ ‘[T]he trial court must be vested with discretion to permit reopening when mere inadvertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur.’ ” Id., 546, quoting United States v. Hinderman, supra. Although this discretion has been used in the past with this court’s approval, a careful examination of the precedents will reveal that the precise facts and procedural posture of this case are significantly different. We reach the result in this case without interfering with a trial court’s discretion to permit a reopening under appropriate circumstances in a future case.

The state, in its brief, refers to numerous precedents in Connecticut which it claims support its argument that the reopening was not an abuse of the trial court’s discretion. We agree that earlier Connecticut cases have permitted reopenings but there were different circumstances from those in the present case.

It has been held not to be an abuse of discretion for the trial court to permit a reopening when a witness is recalled to elaborate or explain the testimony he has already given. State v. Brigandi, supra; State v. Ricker, supra, 153. Both the Appellate Court and the state rely heavily on the language in State v. McKnight, 191 Conn. 564, 579, 469 A.2d 397 (1983), that a reopening during a jury’s deliberations is permitted “where an essential element has been overlooked.” McKnight is inapposite; it did not involve a reopening going to an essential element of the crime charged but discussed the defendant’s request to reopen to permit a late-appearing witness to testify. The holding in that case was an affirmance of the denial to reopen on that defendant’s motion. See also State v. Holmquist, 173 Conn. 140, 151-52, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977); State v. Swift, 125 Conn. 399, 405, 6 A.2d 359 (1939). Obviously, when a defendant moves to reopen, he is not concerned with supplying a missing element of a crime. Thus, the language of McKnight is not supportive of the state’s position.

State v. Watson, 165 Conn. 577, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974), is another case heavily relied upon by the state. There the state reopened its case to present evidence that a codefendant had not possessed a permit for a gun, a fact that would have relieved the four codefendants of the crime of having weapons in a motor vehicle. In that case, however, the defendant did not file a motion for judgment of acquittal and thus the defendant was not the one responsible for pointing out the potential evidentiary gap in the state’s case. In addition, the court’s discussion of the reopening of the case was essentially dictum, since the court determined that a remand for a new trial was required because of a constitutional infirmity in the underlying statute. See State v. Zayas, supra, 623 n.4 (Healey, J., dissenting).

In State v. Zayas, supra, the trial court permitted the state to reopen its case to introduce the time of sunset after a motion for judgment of acquittal by the defendant had pointed out that the state had failed to introduce any evidence that an alleged burglary had taken place at night. Although this court affirmed the conviction, it found that reopening the case was unnecessary because the court had the power to take judicial notice of the time of sunset. Id., 615. Since judicial notice can be taken at any stage of the proceedings including on appeal; Nichols v. Nichols, 126 Conn. 614, 620-21, 13 A.2d 591 (1940); Fed. R. Evid. 201 (f); it did not matter whether or when the defendant pointed out the evidentiary gap. The fact that the time of sunset could be recognized by the court at any stage of the proceedings means that the defendant would never have been able to prevail on that issue, either at trial or on appeal. Thus, the issue of judicial notice makes Zayas significantly different from the facts of the present case. The state conceded at oral argument that Zayas is not controlling.

The only case in our jurisdiction that comes close to the facts of the present case is State v. Levy, 103 Conn. 138, 145, 130 A. 96 (1925). There, after the state had rested, the defendant made a motion to dismiss on the grounds that no evidence was presented on whether the beer was made from hops, malt or barley, a necessary element of the crime of illegally transporting intoxicating liquor. The trial court then permitted the state to reopen its case and present such evidence. We note that the state in Levy, unlike the state in this case, in resisting Levy’s claim, maintained that it had not failed to prove the alleged missing element. The state argued both that enough evidence was present and that the reopening was appropriate. In contrast, the state in the present case has conceded that the evidence presented in its case-in-chief was insufficient.

We also point out that in the present case the state offered new evidence on reopening and did not merely offer cumulative evidence or clarify previous testimony. An examination of the transcript shows that when Masterson originally testified on direct examination, he was unable to identify the weapon that was used against him. It was only after the reopening and after the state had been unable to establish adequately a prima facie case that Masterson testified about the length of the gun barrel. These facts strengthen our conclusion that allowing the state to reopen its casein-chief after the defendant has identified its shortcomings was fundamentally unfair to the defendant and an abuse of the trial court’s discretion. People v. Belton, supra, 523.

The notion that the defendant somehow induced this error by overlooking the applicable statute should also be dispelled. Both the Appellate Court in State v. Allen, supra, 175-76, and the state in its brief intimate that the defendant’s citation of the incorrect statute (although identical to the proper statutory provision) led the trial court to overlook the correct statute. The transcript clearly shows, however, that the defendant never mentioned the incorrect statute at issue until after the state had rested. Thus, it is the state that is solely responsible for its failure to produce evidence on the length of the gun’s barrel, concededly an element of the crime under General Statutes § 29-38. It can hardly be said that the state or the court was led to an incorrect decision by the defendant’s ipcorrect citation. Rather than considering the applicable statute on the length of the barrel, the trial court agreed with the state that having any weapon in a motor vehicle contravened the statute charged in the information. We cannot conclude that the defendant misled either the state or the court to their detriment.

Our holding in this case does not preclude a trial court from exercising its discretion to reopen a case. We only hold that when the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal, it is an abuse of the trial court’s discretion to permit a reopening of the case to supply the missing evidence.

The judgment of the Appellate Court is reversed and the case is remanded to that court to remand the case to the trial court with direction to render a judgment of acquittal on the charge of having a weapon in a motor vehicle in violation of General Statutes § 29-38.

In this opinion Peters, C. J., Shea and Glass, Js., concurred.

Callahan, J.,

dissenting. I respectfully dissent. I do not believe that the trial court abused its broad discretion in this area by allowing the state to reopen its casein-chief and present additional evidence regarding the length of the gun barrel.

Although it is, perhaps, unfortunate for this defendant that he brought the deficiency in the state’s case to its attention, I fail to see that he has suffered any legal prejudice. The additional evidence was no more detrimental to him when offered than it would have been if offered on the state’s case-in-chief. Lucas v. United States, 343 F.2d 1, 3 (8th Cir. 1965). Further, he had a full opportunity to meet and rebut the additional evidence presented. State v. Ricker, 90 Conn. 147, 152-53, 96 A. 941 (1916).

I agree with the Appellate Court that “ ‘ “a trial is not a game of technicalities, but one in which the facts and truth are sought.” . . . ’ ” (Citations omitted.) State v. Allen, 9 Conn. App. 169, 174, 517 A.2d 1043 (1986). That means to me that an obviously guilty defendant should not be acquitted because of inadvertence or mistake, no matter how brought to light, when any lapse or error can be corrected. In this particular case our holding is, perhaps, of no great significance because this defendant was convicted of more serious crimes. I fear, however, that limiting the discretion of the trial court in the manner we have will result in serious and regrettable consequences down the road.

I also do not believe that the spectre, raised by the majority, of possibly eliminating the usefulness of Practice Book § 883 is real. If the state does not present evidence of all the elements of a crime on its case-in-chief, the usual reason is that the evidence is not available. It is that situation that I think a motion for acquittal under Practice Book § 883 was intended to address and would continue to be used to address.

I would affirm the judgment of the Appellate Court.

       The defendant was sentenced to a term of imprisonment of not less than ten years and not more than twenty years on the charge of attempted murder. On the charge of assault in the first degree, the defendant was sentenced to a term of imprisonment of not less than ten years and not more than twenty years, this sentence to run concurrently to the attempted murder sentence. On the charge of assault of a peace officer, the defendant was sentenced to a term of imprisonment of not less than five years and not more than ten years, this sentence to run consecutively to the attempted murder and assault in the first degree sentences. On the charge of having a weapon in a motor vehicle, the defendant was sentenced to a five year term of imprisonment to run consecutively to the other sentences. The defendant will not commence serving his sentence in Connecticut until he completes a Georgia sentence which he is currently serving.

       This court limited its grant of certification to the following question: “On the charge of having a weapon in a motor vehicle in violation of General Statutes section 29-38, did the Appellate Court err in upholding the ruling of the trial court permitting the state to reopen its case-in-chief in order to present evidence of the length of the barrel of the firearm after the defendant’s motion for acquittal based upon the lack of such evidence had been denied?”

       General Statutes (Rev. to 1979) § 29-38 provides: “weapons in vehicles. Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the case may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. The word ‘weapon,’ as used in this section, means any pistol or revolver, any dirk knife or switch knife or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, and any other dangerous or deadly weapon or instrument, including any slung shot, black jack, sand bag, metal or brass knuckles or stiletto or any knife, the edged portion of the blade of which is four inches or over in length.”

       General Statutes § 29-27 provides: “ ‘pistol’ and ‘revolver’ defined. The term ‘pistol’ and the term ‘revolver,’ as used in sections 29-28 to 29-38, inclusive, mean any firearm having a barrel less than twelve inches in length.”

       General Statutes § 53a-3 (18) provides: “definitions. Except where different meanings are expressly specified, the following terms have the following meanings when used in this title . . .
      “(18) ‘Pistol’ or ‘revolver’ means any firearm having a barrel less than twelve inches.”

       Practice Book § 883 provides: “Motions for a directed verdict of acquittal and for dismissal when used during the course of a trial are abolished. Motions for a judgment of acquittal shall be used in their place. After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon his own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty. Such judgment of acquittal shall not apply to any lesser included offense for which the evidence would reasonably permit a finding of guilty.”

       Masterson testified in part on direct examination as follows:
      “Q. And were you able to see the weapon that was fired?
      “A. Yes, I did.
      “Q. Can you describe that in any way?
      “A. It was a revolver and it was either nickel or chrome or shiny on the front of the cylinder.”

       After the case was reopened, Masterson testified in part on direct examination as follows:
      “Q. . . . [Wjere you able to notice the length of the barrel of—I think you described it as a revolver that he fired at you?
      “A. That is correct.
      “Q. Would you give the jury an estimate of how long just the barrel portion of the revolver was?

        “A. Approximately a two inch barrel on the revolver.”
      Masterson testified in part on cross-examination as follows:
      “Q. You don’t know where this weapon came from. You never had any side view of the weapon?

        “A. Not a side view.
      “Q. Approximately how far away were you?
      “A. From me to you.
      “Q. Okay. Further than the distance of a car length? Withdraw that. I believe you testified on direct that you were at least 12 to 15 feet away; is that correct?
      “A. I believe so. I don’t remember.
      “Q. That’s your testimony now that the barrel of the gun is approximately two inches long?
      “A. Approximately.
      “Q. Did you ever see the barrel itself?
      “A. Yes, I did.
      “Q. Other than the cylinder, you saw the barrel?
      “A. Yes.
      “Q. You didn’t previously testify to that though. The first testimony of that is today; is that correct?
      “A. That is correct.”


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    State of Connecticut v. Steven H. Hufford
    (12954)
    Peters, C. J., Healey, Glass, Covello, and Hull, Js.

      Argued October 1
    decision released December 1, 1987

      Jon L. Schoenhorn, with whom was Dennis P. McMahon, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom were James G. Clark, assistant state’s attorney, and, on the brief, Rosita Creamer, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant was charged by substitute information with the crimes of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (3), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (l), and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (C) and/or (a) (2). After a jury trial, the defendant was acquitted of sexual assault in the second degree and found guilty of sexual assault in the third degree and sexual assault in the fourth degree.

On appeal, the defendant claims that: (1) the state failed to prove the defendant guilty beyond a reasonable doubt of sexual assault in the third degree; (2) the state failed to prove the defendant guilty beyond a reasonable doubt of sexual assault in the fourth degree; (3) the trial court erroneously instructed the jury on circumstantial evidence; (4) the trial court erroneously refused to charge the jury on the element of intent necessary for a conviction of sexual assault in the fourth degree; and (5) the defendant’s constitutional rights to confrontation and cross-examination of adverse witnesses were violated by the trial court’s denial of his motion for disclosure of the complainant’s psychiatric records. We find error.

The jury could reasonably have found the following facts. On October 15, 1984, the complainant and her husband, from whom she had filed for divorce, were engaged in an argument, at their East Hartford home, over items allegedly missing from there. When the complainant became very excited and began to hyperventilate, her husband called the police. Upon their arrival with paramedics, her husband told them the complainant had threatened to commit suicide. Although the complainant was crying and upset and frightened, the police and paramedics saw no evidence that she had tried to harm herself. Based on their observations and the information given them by her husband, they decided she should be taken to the hospital for observation. They called Ambulance Service of Manchester and an ambulance responded with two emergency medical technicians, the defendant and Douglas Bearse. The complainant resisted going to the hospital and the police and paramedics decided she should be restrained. The defendant and Bearse tied pillow cases around the complainant’s limbs and secured them to the stretcher with tape. She was placed in the ambulance and taken to the Hartford Hospital emergency room. The complainant remained in the hospital, in restraints, for more than two and one-half hours, shouting several times to attract attention to her situation. Eventually she was seen by a psychiatrist and released.

The sexual assault is alleged to have occurred during the ride to the hospital. The facts are in dispute. The complainant testified that during the ride, the defendant unbuttoned her blouse and unzipped her pants, and over her verbal protests fondled her breasts and massaged her vagina. The defendant testified that after the complainant was placed in the ambulance, he took her vital signs, that during the trip, he again took her vital signs, that he noticed that the top two buttons of the complainant’s blouse were open and that he buttoned them, and that it was possible that he brushed up against her breast while taking her blood pressure, but did not actually recall doing so. He denied the complainant’s assertion that he had intentionally touched her breasts and inserted his fingers in her vagina. Bearse, who was driving the ambulance, testified that he had a partial view of the rear compartment of the vehicle where the defendant and the complainant were, and that he could hear the complainant yelling that she did not want her belongings taken from her. He said he saw the defendant doing paperwork.

I

The defendant’s first challenge is to the sufficiency of the evidence to prove beyond a reasonable doubt that he committed sexual assault in the third degree as charged in count two of the substitute information. He contends that the state presented no evidence that the defendant used force to compel the alleged sexual contact. At the close of the state’s case and at the close of all the evidence, the defendant moved for judgment of acquittal on all charges. Both motions were denied.

In considering a challenge to the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Simino, 200 Conn. 113,116, 509 A.2d 1039 (1986); State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985). In other words, this court must ascertain “whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985).

The state was required to prove beyond a reasonable doubt that the defendant used force to compel the alleged sexual contact. General Statutes § 53a-72a (a) (1) (A). General Statutes § 53a-65 (7) (B) defines “use of force” as “use of actual physical force or violence or superior physical strength against the victim.” The defendant argues that the state did not prove use of force as that term is defined by the statute. The state counters that by partially undressing the complainant and touching her, the defendant exerted all the force necessary to compel the complainant’s submission to sexual contact. We agree with the defendant.

Penal statutes are to be construed strictly; State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983); and not extended by implication to create liability that the legislature did not purport to create. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). Words and phrases, however, are to be understood according to the commonly approved usage of the language; General Statutes § 1-1 (a); and words used in a criminal statute should not be accorded the narrowest technical meaning in disregard of their context and in frustration of the obvious legislative intent. State v. Roque, supra. We have previously acknowledged that the statutory definition of “use of force” is clear and that “it contains no words not commonly used which might not be understood in their ordinary meaning.” State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982).

This court has not heretofore considered any case in which mere touching was alleged to be the force necessary to a sexual assault. Rather, where we have found use of force proven, the evidence demonstrated either violence or some other form of physical coercion. See, e.g., State v. Monk, 198 Conn. 430, 503 A.2d 591 (1986) (defendant forced victim into car, struggled with her, choked her and sexually assaulted her while another held her down); State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985) (defendant strangled victim into unconsciousness); State v. Rothenberg, 195 Conn. 253, 487 A.2d 545 (1985) (defendant took victim by the arms and pulled her, struggling, to the couch); State v. Green, 194 Conn. 258, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985); (attempted sexual assault; when victim tried to get up, defendant held her down and struck her); State v. Kish, supra (defendant grabbed victim’s wrists and dragged her into bedroom).

The evidence adduced at the trial of this case demonstrated that the defendant had no need to exert force to effect the sexual contact. The complainant had been legally rendered immobile for transport to the hospital and the defendant had only to open her blouse and pants to commit the sexual assault. We are unpersuaded by the state’s argument that these actions constituted force. In this case, there was mere touching. Neither violence, nor physical coercion, nor use of superior strength was necessary to assault this complainant sexually. We decline to stretch the ordinary meaning of “use of force” to fit this particular case. We, therefore, hold that the defendant did not use force as contemplated by General Statutes § 53a-65 (7) (B), and that the evidence does not support the jury’s verdict of guilty of sexual assault in the third degree.

Our holding here is supported by a comparison of sexual assault in the third degree; General Statutes § 53a-72a (a) (1) (A); with sexual assault in the fourth degree. General Statutes § 53a-73a (a) (1) (C) and (a) (2). We agree with the state that these are separate crimes but disagree with the state’s assertion that in this factual setting, the defendant can be found guilty of both. While both statutes proscribe nonconsensual sexual conduct, sexual assault in the third degree by use of force contemplates a will overborne by physical coercion, whereas sexual assault in the fourth degree addresses subjection to sexual contact upon a physically helpless person or without the victim’s consent under circumstances not necessarily requiring physical force.

Prior to 1975, sexual contact by forcible compulsion and sexual contact with a person unable to consent by reason of being physically helpless were both considered sexual contact in the first degree and designated a class C felony. General Statutes (Rev. to 1975) § 53a-78. Sexual contact with a person without consent was sexual contact in the third degree and designated a class A misdemeanor. General Statutes (Rev. to 1975) § 53a-80. These statutes were repealed by Public Acts 1975, No. 75-619. In their place, the legislature enacted General Statutes § 53a-72a, a class D felony, which encompasses sexual contact compelled by use of force, and General Statutes § 53a-73a, a class A misdemeanor, which includes sexual contact with a physically helpless person and sexual contact with a nonconsenting person. It is clear that the legislature sought to separate the offenses originally contained in § 53a-78 and to impose greater criminal liability upon a defendant who uses force, thereby risking additional harm to the sexual assault victim, than upon the defendant who takes advantage of a situation where the only touching necessary is that constituting the sexual contact. See State v. Rodgers, supra, 60-61. Were we to adopt the interpretation of “use of force” urged by the state to include mere touching, we would eradicate the distinction between sexual assault in the third degree and sexual assault in the fourth degree.

Finally, we do not lightly upset a jury verdict. Although whether there was a use of force is ordinarily a question of fact for the trier; State v. Monk, supra, 433; State v. Kish, supra, 766-67; a jury may not resort to speculation or conjecture. State v. Scielzo, 190 Conn. 191,196-97, 460 A.2d 951 (1983). “ ‘Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot “constitutionally stand,” as it is violative of the fourteenth amendment [to the United States constitution] . . . ” State v. Scielzo, supra; see Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560, reh. denied, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979).

It was the state’s burden to prove beyond a reasonable doubt every element of sexual assault in the third degree. We hold that the record discloses no evidence upon which the jury could reasonably have concluded that the defendant used force to compel the complainant to submit to sexual contact. Therefore, no rational trier could have found the defendant guilty of sexual assault in the third degree. Accordingly, we find error. The trial court is directed to render judgment of acquittal on count two of the substitute information.

II

We consider the defendant’s second and fifth claims of error together since they both implicate the validity of his conviction on count three, sexual assault in the fourth degree.

A

The defendant was charged in the substitute information and bill of particulars with intentionally subjecting the complainant to sexual contact while she was physically helpless and/or without her consent. He asserts that these disjunctively phrased charging documents, coupled with the court’s charge to the jury, permitted the jury to convict him without reaching unanimity on the exact crime charged. He further asserts that the state failed to present evidence that the complainant was physically helpless. The state objects that this claim of error is not reviewable because at trial the defendant did not preserve it for appeal. The defendant urges us to review this claim under the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The defendant concedes that he did not object to the disjunctive phrasing in the substitute information or bill of particulars, nor did he except to the court’s allegedly erroneous jury instruction. Furthermore, the defendant requested that the court give the jury charge of which he now complains. When the jury returned its verdict, the defendant failed to request a poll of the jury to determine under which subsection of General Statutes § 53a-73a he was convicted.

In his motion for judgment of acquittal at the close of the state’s case, the defendant argued that the state had failed to present any evidence that the complainant was physically helpless. At the close of all the evidence, the defendant renewed his motion. The motion was denied at both junctures.

Claims of error not preserved at trial are nonetheless reviewable “where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, supra, 70.

According to the defendant, his constitutional rights to proper notice, to prepare an effective defense and to a unanimous jury verdict have been violated and he is, therefore, entitled to review under Evans. We find no constitutional error arising from the disjunctively phrased substitute information and bill of particulars.

The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense, to avoid prejudicial surprise and to plead his conviction or acquittal in bar of any future prosecution. State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987); State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). An information which charges two or more separate offenses in the alternative is fatally defective because of its failure adequately to apprise the defendant of the specific charge against him. State v. Edwards, 201 Conn. 125, 130, 513 A.2d 669 (1986); State v. Eason, 192 Conn. 37, 40, 470 A.2d 688 (1984). No such vulnerability attaches, however, to an information that charges the defendant with alternate methods of committing one substantive crime. That was the case here with the charge of sexual assault in the fourth degree. The defendant’s conviction under either theory of liability would preclude subsequent prosecution for the same offense. The defendant’s defense was a simple denial that the incident had ever occurred. He has pointed to no support in the record, nor can any be found, that he was prejudiced or unfairly surprised by the charging documents. Nor does he assert that he would have changed his defense had the information charged him with each alternative in separate counts or in the conjunctive. Thus, the defendant has not established an infringement of his constitutional rights. See State v. Franko, supra.

The defendant properly preserved his challenge to the sufficiency of the evidence to convict him of sexual assault in the fourth degree by timely excepting to the court’s denial of his motion for judgment of acquittal. See State v. Duhan, 194 Conn. 347, 354, 481 A.2d 48 (1984). We agree with the defendant that the state presented no evidence that the complainant was physically helpless within the meaning of the statute.

General Statutes § 53a-65 (6) defines “physically helpless” as “unconscious or for any other reason . . . physically unable to communicate unwillingness to an act.” This language contains no terms not commonly used which might not be understood in their ordinary meaning. Since the complainant was not unconscious, we are concerned with whether she was physically able to communicate her unwillingness to the act. The defendant argues that because the complainant, according to her own testimony, was able to protest verbally, she was not physically helpless. The state, relying on People v. Teicher, 52 N.Y.2d 638, 422 N.E.2d 506, 439 N.Y.S.2d 846 (1981), responds that the complainant was physically helpless by virtue of her inability to move away from the defendant notwithstanding her ability to speak. We find Teicher inapposite to the case before us. In Teicher, the defendant, a dentist, was convicted of sexually abusing a police decoy whom he had drugged. The Court of Appeals upheld the conviction over the defendant’s contention that the victim was not physically helpless because she was mentally aware although unable to control her body. Significantly, that court pointed out that the jury heard evidence that the victim was lifted to a standing position by the defendant, and that, under the circumstances, “there may be a decrease in the cerebral blood flow which could result in dizzyness or even unconsciousness,” and that chest compression could compound the result, thereby leaving the question of the state of the victim’s helplessness for the jury to decide. Id., 648. We find that these facts sufficiently distinguish Teicher from the present case.

“Communicate” means “2 a: to make known: inform a person of . . . 3 . . . speak, gesticulate . . . to convey information.” Webster, Third New International Dictionary (1986). By her own account, the complainant told the defendant repeatedly to stop touching her, directly conveying her objection to his advances. While this testimony tends to show lack of consent, it contradicts the state’s assertion that the complainant was unable to communicate her “unwillingness to an act.” The record contains no evidence tending to show that the complainant was physically helpless.

The court instructed the jury that it could find the defendant guilty if it found that the complainant was either physically helpless or had not consented to the sexual contact. The court’s submission of the issue of physical helplessness to the jury in light of the state’s failure to produce evidence of physical helplessness violated the defendant’s constitutional right to be proven guilty beyond a reasonable doubt of all the elements of the crime charged. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Little, 194 Conn 665, 676, 485 A.2d 913 (1984). The jury returned a general verdict of guilty of sexual assault in the fourth degree. A verdict rendered on a single count charging alternative methods of committing the same crime may be upheld only if there is sufficient evidence to support the verdict as to each alternative charged. Leary v. United States, 395 U.S. 6, 31-32, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969); State v. Arnold, 201 Conn. 276, 285, 514 A.2d 330 (1986). Unless there is evidence sufficient to support all alternatives, it would be impossible to determine whether the jury based its decision on an alternative theory of criminal liability for which there was no evidence. State v. Arnold, supra, 282. Since there is no evidence of physical helplessness as required for a conviction under General Statutes § 53a-73a (a) (1) (C), the verdict must be set aside and the case remanded for a new trial limited to the issue of lack of consent.

B

The defendant’s conviction is invalid for another reason. The court erroneously denied the defendant’s motion for disclosure of the complainant’s psychiatric records, thereby violating the defendant’s right to confront and cross-examine the state’s key witness against him.

Following the state’s direct examination of the complainant, the defendant, out of the jury’s presence, introduced the hospital records of the treatment of the complainant on the night of the alleged sexual assault. He also argued his motion for an order to compel the complainant to submit to a psychiatric examination and sought production of her psychiatric records for the purpose of impeaching her credibility. The defendant sought the complainant’s records to show that her mental and emotional condition might have impaired her ability at trial or at the time of the occurrence to observe, recollect and narrate the events of the night in question. The court denied the motion, concluding that the defendant had failed to make the requisite showing that the complainant’s testimonial capacity was affected by her condition, and that he had failed to demonstrate that denial of the information sought would impair his right to confrontation. The defendant duly excepted to this ruling. He limits his challenge on appeal to the court’s denial of access to the psychiatric records.

The right to confrontation is fundamental to a fair trial under both the federal and state constitutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Jarzbek, 204 Conn. 683, 707, 529 A.2d 1245 (1987); State v. Reardon, 172 Conn. 593, 599-600, 376 A.2d 65 (1977). It is expressly protected by the sixth and fourteenth amendments to the United States constitution; Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Pointer v. Texas, supra; and by article first, § 8, of the Connecticut constitution. State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925). The defendant is guaranteed more than an opportunity to confront witnesses physically. Davis v. Alaska, supra. The right to confrontation secures to the defendant the opportunity to cross-examine witnesses against him; id., 315-16; and “to expose to the jury the facts from which the jurors . . . could appropriately draw inferences relating to the reliability of the witness.” State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). The right of cross-examination is not absolute, however, and the trial court may, in its discretion, limit the testimony; id., 508; although the court may not so restrict cross-examination as to impair the defendant’s right to confrontation and deny him a fair trial. State v. Asherman, 193 Conn. 695, 718, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050,105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). We must determine whether, in denying the defendant access to the complainant’s psychiatric records, the trial court prevented the defendant from pursuing a relevant line of inquiry reasonably calculated to elicit facts upon which the jury might logically have decided either to disbelieve the complainant or to discount or discredit her testimony. Davis v. Alaska, supra. We conclude that the defendant’s right to confrontation was impaired. We rest this holding not only on the requirements of the federal constitution, but also on independent and adequate state constitutional grounds. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; see Michigan v. Long, 463 U.S. 1032, 1041,103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. Jarzbek, supra, 707-708.

Where, as here, the records sought are privileged, the witness’ right to privacy must be weighed against the criminal defendant’s right to bring to the jury’s attention facts affecting the witness’ credibility. State v. Storlazzi, 191 Conn. 453, 458, 464 A.2d 829 (1983). “The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material ‘especially probative of the ability to “comprehend, know and correctly relate the truth” ’; United States v. Lindstrom, 698 F.2d 1154, 1165-66 (11th Cir. 1983); so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation. As in the case of admissibility of such records, access to records bearing on ‘the mental unsoundness of a witness (i.e., relating to a trait importing in itself a defective power of observation, recollection or communication), at or around the time of trial or of the occurrence about which he is to testify’; State v. Piskorski, [177 Conn. 677, 736, 499 A.2d 866 (1979)]; should be granted to the defendant. And as in the case of admissibility of such records, however, access to ‘such [records] must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it’; id., 737; and to weigh that value against the interest in confidentiality of the records. Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” State v. Storlazzi, supra, 459.

The patient-psychiatrist privilege must defer to the defendant’s interest in determining whether there is substantial evidence that the mental condition of a vital prosecution witness might reasonably affect that witness’ credibility. State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986); State v. Cardinal, 194 Conn. 114, 118-19, 478 A.2d 610 (1984). “If the testimony of such a witness is to remain in the case as a basis for conviction, the defendant must be afforded a reasonable opportunity to discover any infirmities that may cast serious doubt upon its truthfulness.” State v. Pierson, supra. We have established procedures to reconcile the patient-psychiatrist privilege with the defendant’s right to confrontation where, as here, it is not certain that such privileged information exists; id., 228; cf. State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984); or where psychiatric records were known to exist.

“Where there is any reasonable basis in the evidence for believing that psychiatric personnel may have information relating to the mental condition of a witness that might affect his testimony, the court must conduct a voir dire of the person who may possess such information in order to discover whether it would be admissible. This preliminary inquiry may be conducted only with the consent of the witness sought to be impeached, but, unless such consent is forthcoming, the testimony of that witness must be stricken. The voir dire for the purpose of determining the existence of such impeachment evidence must be conducted in the courtroom in the presence of the defendant and his counsel, who shall be allowed to participate fully in the proceeding. The court may, however, exclude the public from the courtroom pursuant to Practice Book § 895. See Press-Enterprise Co. v. Superior Court of California for the County of Riverside, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). If, after conducting such a voir dire, the court decides that some of the evidence elicited is admissible at trial, the defendant shall be permitted to use it, but'the remaining confidential communications shall be sealed. If no admissible impeaching evidence is discovered, the entire record of the proceeding shall be sealed for possible appellate review.” State v. Pierson, supra, 228.

In this case, the defendant made the requisite showing that there were reasonable grounds to believe that there were psychiatric records or information pertaining to the complainant’s mental condition bearing on her testimonial capacity and reliability as a witness. During argument on his motion for disclosure, the defendant introduced the Hartford Hospital emergency room record and emergency department nursing notes pertaining to the complainant’s condition on the night of the incident. The nursing notes described her as uncooperative and unwilling to answer questions or talk rationally. While her mental status was described in the emergency room record as “calm now, very hysterical, not suicidal, not [homicidal],” she was diagnosed as having a social problem and histrionic personality disorder. She was advised to “[c]all [a health maintenance organization] for appointment for help/support (Mental Health Clinic).” In light of these facts, the trial court should have granted the defendant’s motion for disclosure to enable him to discover whether the complainant had indeed sought counseling and whether there existed any records of such treatment. Following discovery, the court should have conducted a voir dire to ascertain whether the records contained any otherwise privileged information admissible for impeachment purposes. Whether such evidence exists cannot be determined without a voir dire. State v. Pierson, supra, 229. The fact that the defendant did not ask specifically for a voir dire at trial does not, as the state contends, constitute a barrier to the court conducting such a proceeding. Where, as here, the requisite showing has been made that there are reasonable grounds for believing such records exist, the defendant should be permitted to discover them. After they have been obtained, the court should then conduct a voir dire as to their admissibility.

The procedures set forth above are to be applied to the proceedings on remand. Should the defendant’s efforts to discover the records fail, i.e., no such records exist, then there would be no need for a voir dire and a new trial should proceed in accordance with our decision in part II A of this opinion. Should such records exist and the complainant refuse, however, to consent to waive her privilege as to a preliminary inquiry into admissibility, her testimony must be stricken. Since her testimony was the only evidence that the crime had been committed, judgment of acquittal would have to be rendered due to insufficiency of the evidence. Should she consent and the court find no impeachment evidence, the entire record of the proceeding shall be sealed for possible appellate review, and a new trial shall proceed in accordance with our decision in part II A.

Ill

Finally, the defendant challenges the trial court’s instructions to the jury on circumstantial evidence and on sexual assault in the fourth degree.

A

The defendant claims that the court’s instructions on circumstantial evidence erroneously diluted the state’s burden of proof to establish his guilt beyond a reasonable doubt and instead permitted the jury to find him guilty by a preponderance of the evidence. The defendant did not file a request to charge with the trial court on circumstantial evidence, nor did he except to the charge. Ordinarily, we decline to review claims of error not properly preserved for appeal; Practice Book § 4185; but because the claim implicates the defendant’s constitutional right to have the state prove him guilty beyond a reasonable doubt, we will review it. In re Winship, supra, 361; State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987); State v. Whelan, 200 Conn 743, 755-56, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Evans, supra.

In its general charge on circumstantial evidence, the trial court instructed the jury that “proof beyond a reasonable doubt does not mean that you must have direct evidence supporting each and every element of the charge, nor does it mean that you have direct evidence of every fact involved.” The court explained that the rule of circumstantial evidence involves the offering of evidence from facts, “from which you are asked to infer the existence of another fact or of a set of facts. Such an inference may be made, providing two elements in the application of the rule are satisfied. The first element is that the fact from which you are asked to draw the inference, which fact we’ll call the underlying fact, has itself been proven in this trial. The second element that must be satisfied is that the inference asked to be drawn from the underlying fact is not only logical and reasonable, but is strong enough so that it is more probable than not, that the fact to be inferred is true. To sum up, it is your right to draw inferences if you conclude that the facts you find proved, reasonably establish other facts by reason and in logic, and that they are not the result of speculation or guesswork or surmise.”

The defendant argues that this instruction permitted the jury to infer his intent and purpose in committing the crime by a preponderance of the evidence.

We have had many opportunities to consider jury instructions on circumstantial evidence that were substantially similar to the charge in this case. State v. Robinson, 204 Conn. 207, 527 A.2d 694 (1987); State v. Miller, supra; State v. Smith, 201 Conn. 659, 519 A.2d 26 (1986); State v. Whelan, supra; State v. Rodgers, 198 Conn. 53, 502 A.2d 360 (1985); State v. Reddick, 197 Conn. 115, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). While we have consistently held such a charge to be erroneous, such error is not reversible unless it can be shown that it was reasonably possible that the jury was “misled [by the charge] to believe that they were to apply any standard other than that of ‘beyond a reasonable doubt’ in determining the guilt of the accused.” State v. Miller, supra, 491-92; State v. Robinson, supra, 210-11; State v. Whelan, supra, 756-57.

The standard of our review turns on whether the principal disputed issue is one that is ordinarily proven by circumstantial evidence. If the principal disputed issue is intent, which is typically proven by circumstantial evidence, “ ‘we will closely scrutinize the court’s instructions’ on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof. State v. Mullings, [202 Conn. 1, 12, 519 A.2d 58 (1987)]; State v. Whelan, supra, 757; State v. Rodgers, [supra, 59]; State v. Farrar, 7 Conn. App. 149, 155, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).” State v. Robinson, supra, 210. Otherwise, we review the instruction in the context of the charge as a whole to ascertain whether it is reasonably possible that the jury was misled by an erroneous explanation of the use of circumstantial evidence. Id.

Contrary to the defendant’s assertion, the principal disputed issue in this case was not intent, but the credibility of the complainant. The defendant denied that he committed the crimes charged. The evidence produced to prove that the crime was committed was the direct testimony of the complainant. This evidence was contradicted by the direct testimony of the defendant and his version of the facts was corroborated by the testimony of Bearse, the ambulance driver. On this record, it is clear that the jury’s verdict depended not upon circumstantial evidence, but upon the credit it gave to the direct testimony of the complainant.

Our examination of the jury charge as a whole discloses that the court repeatedly admonished the jury that they must find the existence of each essential element of each crime beyond a reasonable doubt. Furthermore, the court adequately instructed the jury on the presumption of innocence and reasonable doubt. As to the intent required for sexual assault in the fourth degree, the court instructed the jury that they could find it by circumstantial evidence, but that it must be found beyond a reasonable doubt. Accordingly, we find that the erroneous circumstantial evidence instruction could not reasonably have misled the jury as to the state’s burden of proof and was thus harmless beyond a reasonable doubt. State v. Smith, supra, 672-73; see Rose v. Clark, 478 U.S. 570,106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).

B

The defendant also claims that the trial court erred in failing to instruct the jury that intentional conduct was necessary to convict him of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). We find this claim to be without merit.

Subsection (a) (1) of General Statutes § 53a-73a contains an element of specific intent not repeated in subsection (a) (2). In its charge to the jury on subsection (a) (2), the court merely recited the language of the statute and did not apprise the jury that conviction under that subsection requires a finding that the defendant intended to subject the complainant to sexual contact. The defendant argues that, even if specific intent is not required under subsection (a) (2), his testimony that he may have inadvertently touched the complainant’s breast while taking her blood pressure constituted evidence sufficient to require an instruction on general intent to commit the crime of sexual assault in the fourth degree in this manner.

“[T]he fundamental principle that a criminal act must be volitional does not mean that a charge to the jury that omits reference to this principle is constitutionally defective where the evidence at trial contains no suggestion that the defendant’s conduct was involuntary and he has made no such claim either in the trial court or on appeal.” State v. Pierson, supra, 217.

We need not address the defendant’s arguments as to the type of intent required for sexual assault on a

person without her consent. Viewing as a whole the court’s instructions on the element of sexual contact, it is not reasonably possible that the jury was misled into believing that the defendant could be guilty of the crime by virtue of inadvertent or accidental acts. Consistent with the statutory definition of sexual contact; General Statutes § 53a-65 (3); the court, in its charge on sexual assault in the third degree, informed the jury that any sexual contact would have to have been for the sexual gratification of the defendant. This instruction was repeated in the instructions on sexual assault in the fourth degree on a physically helpless person. Finally, in its instructions on sexual assault in the fourth degree without consent, the court referred the jury to its prior explanations of sexual contact. In light of these instructions, we conclude that the jury could not reasonably have been misled to believe that unintentional conduct could form the basis of a violation of General Statutes § 53a-73a (a) (2).

There is error, the judgment of guilty of sexual assault in the third degree is set aside and the trial court is ordered to render judgment of acquittal, and the judgment of guilty of sexual assault in the fourth degree is set aside and the case is remanded to the trial court for further proceedings consistent with part II of this opinion.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) § 53a-71, as amended by Public Acts 1983, No. 83-396, provides in part: “sexual assault in the second degree: class c felony: nine months not suspendable. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age, or (2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or (3) physically helpless, or (4) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (5) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.”

       “[General Statutes] Sec. 53a-72a. sexual assault in the third degree: class d felony, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person whom such person knows to be related to such person within any of the degrees of kindred specified in section 46b-21.”

       “[General Statutes] Sec. 53a-73a. sexual assault in the fourth degree: class a misdemeanor, (a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is'unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (2) such person subjects another person to sexual contact without such other person’s consent, or (3) such person engages in sexual contact with an animal or dead body.”

       At the time of the incident, the complainant and her husband were still living in the same house.

       The defendant urges us to abolish the waiver rule, under which a defendant may not obtain appellate review of a trial court’s denial of his motion for acquittal at the close of the state’s case without relinquishing his right to introduce evidence in his own behalf. State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). Although we acknowledge that the waiver rule has come under attack in recent years; see State v. Rutan, supra, 440-44; we decline, at this time, to overrule it because to do so is not required for disposition of this appeal.

       The defendant argues that this claim of error is reviewable under the doctrine of plain error. Practice Book § 4185. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). The error claimed by the defendant “is not so obvious or so egregious as to constitute plain error.” State v. Franko, 199 Conn. 481, 489-90 n.10, 508 A.2d 22 (1986).

       The sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      The right to confrontation is made obligatory on the states by the fourteenth amendment to the United States constitution. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Reardon, 172 Conn. 593, 599, 376 A.2d 65 (1977).

       The constitution of Connecticut, article first, § 8, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       General Statutes § 52-146e protects such records from disclosure.


author: Per Curiam.

text:
    Joseph Boccuzzi v. Mary Choquette et al.
    (13104)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued October 8
    decision released December 1, 1987

      Walter L. Burrows, Jr., and Claudine Siegel, for the appellant (plaintiff).

      Richard J. Pacini, for the appellees (defendants).
   Per Curiam.

On February 5, 1986, the plaintiff, Joseph Boccuzzi, commenced this action against the named defendant, Mary Choquette, in the Superior Court for the Stamford-Norwalk judicial district, seeking orders of custody, visitation and support concerning her child born out of wedlock whom he claimed to be his son. On March 10, 1986, the court admitted as a party defendant Joseph H. Choquette, the named defendant’s husband, who had obtained a decree dated August 27,1985, in which the Stamford Probate Court approved the stepparent adoption of the child by Mr. Choquette.

The defendants thereafter moved to dismiss the Superior Court action for lack of jurisdiction. The court granted the motion to dismiss for the reason that the plaintiff had already filed a related action to determine his paternity in the Stamford Probate Court. The plaintiff appealed.

During the pendency of this appeal, the Stamford Probate Court has determined that the plaintiff is, in fact, the father of the child in question. This finding has not been appealed. The parties have now agreed that the order of dismissal may be vacated and the matter remanded for a determination of the custody and visitation issues by the Superior Court. The parties are further agreed that the Superior Court should simultaneously consider and review the plaintiff’s additional claim that the earlier adoption proceedings should be vacated in view of the alleged absence of notice to him. See Phinney v. Rosgen, 162 Conn. 36,42,291 A.2d 218 (1971), quoting Haverin v. Welch, 129 Conn. 309, 316, 27 A.2d 791 (1942) (“ ‘Superior Court . . . may, in proper cases, grant relief against decrees of the Probate Court procured by fraud, accident, mistake and the like’ ”).

The order of dismissal is vacated and the matter is remanded to the trial court for further proceedings in accordance with this opinion.

       In a proceeding to establish paternity brought by the plaintiff under General Statutes § 46b-172a, the court, relying on the results of blood tests performed on the mother, the child and the plaintiff, declared the plaintiff to be the father of the child as articulated in an order dated September 3, 1987.