State v. Ryan

53 Conn. App. 606

733 A.2d 273

STATE OF CONNECTICUT v. MICHAEL RYAN

(AC 16865)

Appellate Court of Connecticut.

Argued January 25, 1999.

Officially released June 1, 1999.

Foti, Schaller and Dupont, JS. James Streeto, special public defender, for the appellant (defendant).

Frederick W. Fawcett, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and C. Robert Satti, Jr., assistant state's attorney, for the appellee (state).

Opinion

DUPONT, J.

The defendant, Michael Ryan, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136, and assault in the third degree in violation of General Statutes 53a-61. On appeal, the defendant claims that the trial court improperly (1) instructed the jury regarding the law of reasonable doubt and the presumption of innocence, thereby depriving him of his rights under the state and federal constitutions, and (2) permitted the state to file a substitute information after the state had rested its case. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On October 8, 1995, the victim, Brian Fernandez, was attacked by the defendant after Fernandez withdrew money from an automatic teller machine at a People's Bank in Fairfield. As Fernandez was exiting the bank, he saw the defendant approaching. Fernandez held the door open for the defendant because he thought the defendant was going to use the teller machine. Instead, the defendant demanded that Fernandez give him money, pushed him to the ground and sprayed him in the face with a substance that caused burning and irritation. After Fernandez gave the defendant his wallet, which contained $35, the defendant fled the scene and Fernandez called the police. Subsequently, Fernandez identified the defendant from a photographic array as the person who robbed him. The defendant was arrested and charged in a substitute information dated August 15, 1996, with robbery in the first degree and assault in the second degree. At trial, Fernandez made an in-court identification of the defendant as the man who had robbed him.

At the close of the state's case-in-chief, the defendant moved for a judgment of acquittal as to both counts because the state failed to present evidence of a dangerous instrument. The trial court granted the motion, in part, as to the principal offenses charged, but concluded that there was sufficient evidence that would permit a jury to return verdicts of guilty on the lesser included crimes of those that were charged.¹ Thereafter, the trial court permitted the state to file a substitute information charging the defendant with the crimes of robbery in the third degree and assault in the third degree. The jury returned verdicts of guilty on both counts and this appeal followed.

I

The defendant raises six claims regarding the trial court's jury instructions, arguing that the trial court's instructions concerning the law of reasonable doubt and the presumption of innocence were improper as violative of his fifth amendment right to due process and sixth amendment right to a jury trial.² We will address the defendant's claims in turn.

"`When reviewing [a] challenged jury instruction... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.... [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.' ... State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995)." State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999). "It is axiomatic that in reviewing a challenged portion of a jury charge, we must consider the charge as a whole and its effect in guiding the jury to a proper verdict.... We do not scrutinize an individual section of an instruction in artificial isolation from the overall charge in a microscopic search for possible error." (Citation omitted; internal quotation marks omitted.) State v. Edwards, 39 Conn. App. 242, 248-49, 665 A.2d 611, cert. denied, 235 Conn. 924, 666 A.2d 1186 (1995).

A

The defendant first claims that the trial court's instruction to the jury that the principle requiring the state to establish guilt beyond a reasonable doubt is a "rule of law ... made to protect the innocent and not the guilty" impermissibly undermined the presumption of innocence, thereby diluting the state's burden of proof. We do not agree.

Since the filing of this appeal, our Supreme Court has considered whether an instruction identical to the one challenged by the defendant violates a defendant's due process rights. State v. Schiappa, 248 Conn. 132, 167-68, 728 A.2d 466 (1999) (en banc). Although the court in Schiappa disapproved of the challenged language and, pursuant to its supervisory authority over the administration of justice, directed our trial courts to refrain from using the challenged language in future cases, the court nevertheless rejected the defendant's constitutional claim based on the particular instructions given in that case.

The Supreme Court stated that the trial court "repeatedly apprised the jury regarding the presumption of innocence and the state's burden of establishing guilt beyond a reasonable doubt. Moreover, the challenged portion of the instruction was immediately preceded by language underscoring the presumption of innocence and the state's burden of proof: `It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law imputes to every person so charged by making the state meet its burden of proof of guilt beyond a reasonable doubt.' ... Furthermore, the allegedly improper language was immediately followed by an instruction that again emphasizes these two critical constitutional principles: `If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and to render verdicts of guilty.' ... These two sentences, taken together with the court's repeated explanations of the presumption of innocence and the state's burden of proving the defendant guilty beyond a reasonable doubt, eliminated any reasonable likelihood of juror misunderstanding as to the state's burden and the proof necessary for a conviction." (Emphasis in original.) Id., 172-73. The court held that "under the third prong of Golding, [a] defendant may prevail ... on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled' ... State v. Webb, 238 Conn. 389, 456, 680 A.2d 147 (1996)...." State v. Schiappa, supra, 248 Conn. 176-77.

Here, the same two instructions cited by the court in Schiappa immediately preceded and followed the challenged portion of the instruction. In light of Schiappa, and after reviewing the trial court's entire charge to the jury, we conclude that the defendant's claim must fail.³

B

The defendant's next claim is that the trial court's instruction that "a reasonable doubt is a doubt that has its foundation in the evidence or lack of evidence" unconstitutionally diluted the state's burden of proof. The defendant concedes that he did not preserve his claim at trial and he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),⁴ or the plain error doctrine. Practice Book § 60-5. We conclude that the trial court's instruction did not constitute a constitutional violation and, therefore, the defendant's claim is not entitled to Golding review. We also conclude that the instruction did not involve plain error.

"`Just as every claim of evidentiary error by the trial court is not truly constitutional in nature ... every claim of instructional error is not truly constitutional in nature.'" (Citation omitted.) State v. Dash, 242 Conn. 143, 151-52, 698 A.2d 297 (1997). While our Supreme Court has held that claimed instructional errors regarding the burden of proof or the presumption of innocence can be constitutional in nature so as to satisfy the second Golding requirement; see id., 152; not all claims masquerading as constitutional ones concerning the burden of proof or the presumption of innocence have been afforded Golding review. See State v. Blackman, 246 Conn. 547, 561, 716 A.2d 101 (1998); State v. Williams, 48 Conn. App. 361, 373, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998). The defendant claims that the court's instruction is improper because a reasonable doubt need not be founded on the evidence or the lack of evidence but must be consistent with the evidence offered at trial, and relies on State v. Gallivan, 75 Conn. 326, 53 A. 731 (1902), to support his claim. The defendant's reliance on Gallivan, however, is misplaced. That case involved a challenge to a court's instruction containing language different from that at issue here and fails to support the defendant's assertions. Our Supreme Court has held that identical or substantially similar language to that challenged here is not of "constitutional dimension." State v. Taylor, 239 Conn. 481, 505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). Moreover, we do not find that the instruction affected the fairness or integrity of the proceedings or resulted in manifest injustice to the...