State v. Truppi
State v. Truppi
Opinion of the Court
After a trial to the jury the defendant was convicted on a four count information of the crimes of sexual assault in the first degree, General Statutes § 53a-70 (a) (2); assault in the first degree, General Statutes § 53a-59 (a) (1); robbery in the first degree, General Statutes § 53a-134 (a) (1); and kidnapping in the second degree, General Statutes § 53a-94 (a). The court imposed separate sentences under each count, to run consecutively. The defendant claims error in an instruction on intent and in the consecutive sentences for assault and robbery.
The jury could reasonably have found the following facts. Early in the morning of December 3, 1977, the defendant came up behind the female victim as she was putting the key into the backdoor of her house in Bridgeport; put a gun to her head; and told her that he needed a driver. Thereupon, he pushed her into his car and told her to drive. While she drove his automobile he pointed the gun at her head. After some time he ordered her to stop, get out of the car, and accompany him to a wooded area of the Brooklawn Country Club golf course in Fairfield. Then he ordered her to remove all her clothing and sexually assaulted her. Thereafter he told her to turn on her stomach and he began searching her pocketbook. Suddenly she felt
I
The defendant claims that the court’s instructions to the jury violated his constitutional right to due process by shifting to him the burden of proof of intent, contrary to the holdings in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), State v. Arroyo, 180 Conn. 171, 429 A.2d 457 (1980), and State v. Harrison, 178 Conn. 689, 425 A.2d 111 (1979).
Before instructing the jury regarding the elements of the four crimes with which the defendant was charged and the specific criminal intents required for assault in the first degree, robbery in the first degree, and kidnapping in the second degree, the court gave the following instruction which the defendant claims unconstitutionally shifted the burden of proof to him. “Now, in the usual case, the State of Connecticut does not have to offer evidence to prove that a man charged with a crime actually had a guilty intent or guilty knowledge. This is because a man is presumed to have intended to do the acts which he did do. Accordingly, until some credible evidence comes into the case tending to prove that, because in the light of the circumstances as he honestly and in good faith believe (sic) them to be, the act which he did would appear to be lawful or because the act was an accident, the State may safely rely upon the presumption that the accused intended to commit the acts which he did commit. Until such evidence
Sandstrom held that in a case where intent is an element of the crime charged, instructions which a reasonable jury could believe required them to apply a burden-of-persuasion-shifting or conclusive presumption “that a person intends the ordinary consequences of his voluntary acts” violate a defendant’s right to due process of law. Sandstrom, supra, 512, 515, 517. Unlike the instruction in Sandstrom, the foregoing instruction explicitly stated that the presumption would vanish when some credible contrary evidence came into the case. Hence, reasonable jurors could not have viewed this instruction as conclusive respecting the element of intent. In addition, the challenged passage concerned intent to do the act
The trial court avoided the “ambiguous and elastic” terms “intent”
“Only the most exceptional circumstances will save a claim, constitutional or otherwise, from the fatal consequences of a defendant’s failure to make a timely objection.” State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980); State v. Arroyo, 180 Conn. 171, 429 A.2d 457 (1980); State v. Briggs, 179 Conn. 328, 332, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).
Under these circumstances we decline to exercise the discretion, provided in Practice Book, 1978,
Ill
Unlike the instructions given on sexual assault, the instructions specifically relating to the three remaining crimes, each of which required proof of a specific intent, incorporated the court’s general instruction on intent. Because a reasonable jury may have believed that the “requisite guilty intent” referred to the specific intent required in each of the three remaining crimes charged in the information, we follow our past practice in reviewing post-trial Sandstrom claims relating to narrow classes of crimes requiring heightened culpability. State v. Vasquez, 182 Conn. 242, 245-46, 438 A.2d 424 (1980); State v. Maselli, 182 Conn. 66, 75, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981); State v. Arroyo, supra; see United States v. Bailey, 444 U.S. 403, 405, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980).
An “entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant, . . . [does not violate due process unless] there is no rational way the trier could make the connection permitted by the inference.” Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); Arroyo, supra, 175.
Unless cured, however, the portion of the instruction quoted by the defendant may have had an impact on the defendant’s remaining convictions similar to the instruction in Harrison, supra, which
Neither Sandstrom nor Ulster County Court v. Allen closely scrutinized mandatory rebuttable presumptions. Allen, however, indicated that it may be proper to analyze a mandatory rebuttable presumption as a permissible inference if it merely imposes on the defendant an extremely low burden of production which can be satisfied by “any” evidence. Allen, supra, 157-58 n.16. In this case the low burden of producing “some credible evidence” would have satisfied the defendant’s burden of production. The defendant, however, neither took the stand, offered any witnesses, nor suggested a theory of defense in cross-examination or otherwise. Thus, unless the state introduced credible evidence which rebutted the presumed intent, the jury could have concluded that it must find against the defendant on
In deciding whether a reasonable jury could have reached such a conclusion we must look at the charge as a whole, and not sever one portion and analyze it in isolation. Vasquez, supra, 246; Harrison, supra, 693; State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); see also Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973). “[Ijsolated improper comments by the trial judge do not compel reversal if the instruction is otherwise correct and nonprejudicial.” United States v. Guillette, 547 F.2d 743, 750 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S. Ct. 132, 54 L. Ed. 2d 102 (1977). Instructions which “clearly delineate the state’s burden of proof on every element, including intent”; Arroyo, supra, 176; act to overcome any potential confusion engendered by the portion of the instructions challenged by the defendant. Maselli, supra, 75-76; Arroyo, supra, 175-76; Harrison, supra, 696-97.
We-therefore pay “careful attention to the words actually spoken to the jury . . . for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom, supra, 514. The word “presume” does not in
In the present case the court began by instructing the jury that they were the sole judges of the facts and of the sufficiency of the facts to demonstrate the guilt of the accused. They were told that while the court might point out the legal effect of certain facts or evidence, or suggest certain considerations which the jury should bear in mind in considering the evidence, or make comments concerning the weight of evidence or regarding the propriety of finding certain facts from that evidence, such comments would be merely suggestive for the jury to approve or disapprove in the exercise of their sound judgment. They were instructed that they should make the proper deductions or inferences from the
Assault in the first degree,
The instructions which were directed specifically to the crime of assault
Accordingly, reasonable jurors following those instructions would have weighed every fact and circumstance presented by the evidence when they determined that the defendant acted with intent to cause serious physical injury. Therefore, they would not have based such a conclusion on an isolated fact. See Sandstrom, supra, 522; Morissette v. United States, supra, 275. Nor would
Since an inference of intent to cause serious physical injury from proof of the circumstances of a multiple stabbing accords with reason, it did not offend due process to inform the jury that the law permitted them to so infer. Allen, supra, 157.
B
The court’s instructions on robbery in the first degree
IV
The state urges that even if the instructions could have led a reasonable jury to shift the burden of proof to the defendant or to find intent on a lower standard than “beyond a reasonable doubt” such error would be harmless because of the overwhelming evidence of the defendant’s guilt.
Ordinarily the burden of establishing that harm resulted from a trial court error rests on the appellant. State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980); State v. Ruth, 181 Conn. 187, 197, 435 A.2d 3 (1980); State v. Pepe, 176 Conn. 75, 81, 405 A.2d 51 (1978). However, “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). If error touches a less basic constitutional right, we sometimes apply the “harmless error” exception, but only sparingly, in a few, discrete circumstances. State v. Zeko, 177 Conn. 545, 558, 418 A.2d 917 (1979). In such circumstances we require the state to prove the error harmless beyond a reasonable doubt. State v.
When a court commits constitutional error by admitting evidence of a defendant’s post -Miranda warning silence to rebut a claim of post-arrest communication with the police, we consider and weigh overwhelming evidence of guilt in determining whether the state has proven “harmlessness” beyond a reasonable doubt. State v. Briggs, supra, 336-37; Zeko, supra, 557. In such a case, however, the error does not significantly impair the truth finding function of the trial.
Since the defendant’s jury reasonably could have relied on a “no evidence” standard in determining intent for kidnapping and robbery they may reasonably have failed to consider the evidence, which the state urges us to find overwhelming. That possibility is incompatible with both the societal interest in the reliability of these jury verdicts; see Mullaney v. Wilbur, 421 U.S. 684, 699, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); and the protection which a jury determination of guilt by the “beyond a reasonable doubt” standard should guarantee to the defendant. Therefore we decline to weigh the evidence of guilt against the uncured damage done by the harmful portion of the instructions.
The defendant also claims that the consecutive sentences he received upon his convictions for assault in the first degree, General Statutes § 53a-59 (a) (1), and robbery in the first degree, General Statutes § 53a-134 (a) (1), violate the constitutional provision against double jeopardy. We examine this claim because it would affect a retrial for robbery. The fifth amendment provides in pertinent part “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend, y. This clause applies to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The double jeopardy prohibition covers not only separate trials but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). “The legislature remains free ... to define crimes and fix punishments,” but once it has acted courts may not exceed their “legislative authorization by imposing multiple punishments for the same offense.” Id; see also Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980).
“Before the double jeopardy prohibition is triggered, however, it must appear not only that the crimes charged arose out of the same act or transaction but also that they are substantially the same.” State v. Amaral, 179 Conn. 239, 242, 425 A.2d 1293 (1979). The United States Supreme Court applies the “Bloclcburger” test to determine whether a defendant, by violating two distinct statutory provisions in one act or transaction,
Each of these crimes as charged in the information required proof of an additional fact or facts which the other did not. Robbery in the first degree required proof of the additional element of larceny, while assault in the first degree required proof that the defendant used a knife with “intent to cause serious physical injury.” Thus, the defendant’s offenses are distinct, permitting the state to impose separate punishments.
In this opinion Peters, Healey and Parskey, Js., concurred.
We do not understand how the dissent can claim that this instruction is not east in terms of a presumption. The placement of this general instruction before the instructions relating to the crimes charged in the information indicated to the jury that this instruction applied whenever the later instructions mentioned intent.
Because this passage used the term “act” ambiguously, reasonable jurors could have attributed any one of at least three meanings to the word: (1) any bodily movement; (2) a muscular movement willed by the actor; and (3) the consequences or results of the movement. See Cook, “Act, Intention, and Motive in the Criminal Law,” 26 Yale L.J. 645, 647 (1917). The Model Penal Code, § 1.13 (2), adopts the first definition of the term “act.” Mr. Justice Holmes limited the definition of an “act” to the second meaning. The Common Law, 91. See also Perkins, “A Rationale of Mens Rea,” 52 Harv. L. Rev. 905, 912 (1939). Our penal code does not define the term. If the jurors chose the Model Penal Code’s terminology,
Certain discussions in our decisions have equated “general intent” with the concept that the law usually punishes only voluntary acts. See, e.g., State v. Roy, 173 Conn. 35, 45, 376 A.2d 391 (1977).
“[W]here the definition of a crime requires some forbidden aet by the defendant, his bodily movement, to qualify as an aet, must be voluntary. To some extent, then, all crimes of affirmative action require something in the way of a mental element—at least an intention to make the bodily movement which constitutes the aet which the crime requires. . . . [S]ome of the broad defenses to criminal liability (especially insanity, infancy, and involuntary intoxication) operate, when applicable, to relieve the actor from liability because these conditions negative his mental capacity to commit any crime. These notions are sometimes summed up with the expression that all crimes require a ‘general intent,’ . . . .” LaFave & Scott, Criminal Law (1972) § 28, p. 201. “The unadorned word ‘fault’ is ... a more accurate word to describe what crimes generally require in addition to their physical elements.” Id., § 27, p. 192. Certainly punishment without fault conflicts with the principles of Anglo-American criminal jurisprudence except for a small class of regulatory offenses. Dennis v. United States, 341 U.S. 494, 500, 71 S. Ct. 857, 95 L. Ed. 1137 (1951); Perkins, “A Rationale of Mens Rea,” 52 Harv. L. Rev. 905, 906 (1939). The venerable common-law distinction between “general intent” and “specific intent” crimes has, however, resulted in much confusion. United States v. Bailey, 444 U.S. 394, 403, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980). “This ambiguity has led to a movement away from the traditional dichotomy of intent and toward an alternative analysis of mens rea . . . [which replaces] the ambiguous and elastic term ‘intent’ . . . with a ‘hieraehy of culpable states of mind.’ ” Id., 403-404; see Model Penal Code § 2.02; General Statutes § 53a-3 (11)-(14).
“[General Statutes] See. 53a-70. . . . (a) A person is guilty of sexual assault in the first degree when such person eompels another person to engage in sexual intercourse . . . (2) 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.” This statute designates no special mental state.
Contrary to the implication of the dissenting opinion, merely defining the word “intent” does not cure an erroneous instruction that the jury must presume intent or may do so without evidence.
General Statutes § 53a-59 (a) (1), which defines the crime of assault in. the first degree, requires “intent to cause serious physical injury to another person . . . .”
General Statutes § 53a-13f (a) (1) defines the crime of robbery in the first degree in terms of robbery, which is defined in § 53a-133. Section 53a-133 states: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” In addition, robbery incorporates the “intent to deprive another of property or to appropriate the same to himself or a third person” required for larceny by $ 53a-119.
General Statutes § 53a-94 (a), whieh defines the crime of kidnapping in the second degree, uses the term “abducts.” Section 53a-91 (2) defines “abduct” to mean “to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation.”
While discussing assault in the first degree the court stated: “Under our law, a person is guilty of assault in the first degree when, with intent to cause serious physical injury to another person, he causes such injury to such person by means of a dangerous weapon. The specific intent to harm is the basic requirement of a criminal assault. This simply means that the defendant Truppi must have acted consciously, with the objective of causing serious physical injury to the person named in the information, namely [the victim]. Absent this essential element of the crime, the defendant Truppi cannot be found guilty. And please remember that each essential element of the crime must be proved by the State beyond a reasonable doubt. . . . Now, this statute requires a specific intent. That is, a crime of assault in the first degree. Now, whether or not a person, in doing so or in committing some act, did so consciously and with a specific objective, causing a serious physical injury to another person or persons, is an issue which you must determine from the surrounding circumstances as you may in the exercise of your best judgment find them to be. You cannot look into a person’s mind and ordinarily the only way that we have of determining a person’s intent or his intention, in this case the intent to harm, is by circumstantial evidence. Now, there’s a difference between direct evidence and circumstantial evidence. Direct evidence is what someone saw, what he heard, what he knows, what he testifies to directly as to his visual observations or within something he heard. That’s direct evidence. Circumstantial evidence is
With regard to robbery in the first degree the court charged as follows on the element of intent. “[T]he fifth element is that he acted intentionally in committing the crime of robbery. Now, the words of this statute are ordinary common English words. They should be given their ordinarily understood meaning insofar as you are concerned. The statute itself defines the meaning of the word robbery as follows: ‘A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking.’ The word 'larceny’ is also defined by the statute as follows: 'A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from the rightful owner.’ A person acts intentionally with respect to a result or conduct described by a statute defining an offense, when his conscious objective is to cause sueh result or to engage in such conduct. Now, applying this statute and the definitions upon which you have been instructed, if you find that on December 3rd, 1977, at or about 5:30 in a wooded area in the vicinity of Cornell Eoad in Eairfield, the defendant
In the course of instructing the jury on the crime of kidnapping in the second degree the court said: “To abduct means to restrain a person with intent to prevent her liberation by using or threatening the use of physical force. A person acts intentionally under our law with respect to a result or to conduct described by the statute defining this offense, when its conscious objective is to cause such result or to engage in such conduct. Applying this statute, and the definitions I have given you, if you find from the evidence produced in court, beyond a reasonable doubt, that George E. Truppi did intentionally on December 3rd, 1977, at or about 4:30 A.M., abduct [the victim] from the back door of her home on Wood Avenue at gunpoint, and that with intent to interfere substantially with her freedom of movement by compelling her to drive his car from place to place to a point somewhere near or on the premises of the Brook-lawn Country Club, and that he threatened and intimidated her with the use of physical force during the time of such abduction with the use of a .44 caliber magnum pistol, you can find him guilty of the erime of kidnapping in the second degree.”
Contra, People v. Wright, 408 Mich. 1, 289 N.W.2d 1 (1980); State v. Hamilton, 605 P.2d 1121 (Mont.), cert. denied, 447 U.S. 924, 100 S. Ct. 3017, 65 L. Ed. 2d 1117 (1980).
Dissenting Opinion
(dissenting). The court’s instructions on robbery in the first degree and kidnapping in the second degree are valid under the Arroyo framework. State v. Arroyo, 180 Conn. 171, 429 A.2d 457 (1980).
The court’s charges on these crimes do not possess the potential for conclusiveness or burden-shifting that was present in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), or State v. Harrison, 178 Conn. 689, 425 A.2d 111 (1979). In fact, the attacked instructions are not cast in terms of a presumption at all. They merely say that, “[a] person acts intentionally under our law with respect to a result or to conduct described by the statute defining this offense, when its conscious objective is to cause such result or to engage in such conduct.” The court then instructed the jury to apply this definition of the word intent in their deliberations. This instruction on intent could not be reasonably construed to require a conclusive presumption or a shifting of the burden of proof. It overcame any conclusive and burden-shifting effect of the earlier instruction.
I would affirm the convictions.
Reference
- Full Case Name
- State of Connecticut v. George E. Truppi
- Cited By
- 63 cases
- Status
- Published