State v. Kurvin
State v. Kurvin
Opinion of the Court
This appeal
I
The court charged the jury on robbery in the first degree and on the lesser included offense of robbery in the third degree. It instructed the jury that robbery occurs when the accused uses or threatens the immediate use of physical force “for the purpose of committing a larceny.” (Emphasis added.) In discussing larceny
Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged; Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); including intent where intent is one of those elements. Mullaney v. Wilbur, supra, 702. If there is a reasonable possibility that the jury were misled by a charge on such intent then the giving of such charge constitutes reversible error. State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976); State v. Rose, 169 Conn. 683, 688, 363 A.2d 1077 (1975). The court’s failure to explain to the jury the extent of the intended deprivation of property required as an element of the offense raised a sufficient constitutional issue to satisfy the requirements of Evans. We, therefore, turn to the merits of the constitutional claim.
A court’s charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial. See State v. Rose, supra, 687. With this in mind the following facts are pertinent: On December 15, 1978, at approximately 2 p.m., members of the New Haven Police Department responded to 257 Highland Street in New Haven on a complaint of a robbery. At the Highland Street address, police spoke with the complainants Connie Civita and Rosemary Greene and obtained a description of the individual and vehicle involved in the robbery. This infor
At an Arco Gas Station on the corner of Shelton Avenue and Goodrich Street, police attempted to approach the suspect for questioning. The suspect walked away from the area of the officers, however, eventually ducking behind a building and reappearing seconds later. Fearing for their safety, officers drew their guns, searched the suspect, subsequently identified as the defendant, and searched the area behind the building where an automatic small caliber weapon, a holster and three cartridges were found.
Shortly thereafter police brought the complainants to the Arco Station and the defendant was positively identified as the perpetrator of the robbery by both of them. He was then placed under arrest and transported to the police station. A subsequent check of state and local police records revealed that the defendant did not, as of December 15, 1978, have a proper permit to carry a gun. Subsequent investigation revealed that the gun was operable and the cartridges prime.
At the trial, two significantly different versions of the events of December 15, 1978 were put into evidence, one by state witnesses and one by the defense. According to state witnesses, after driving Connie Civita, her daughter, and Rosemary Greene to Starr Street and Sheffield Avenue in his car, the defendant robbed the complainants at gunpoint of $63, threatening to shoot the child if the money was not turned over.
The standard with which to test jury instructions in criminal cases is easier to formulate than to apply. “ ‘Although, in general, the failure to give an instruction is not error unless a request therefor was made, the pertinent principles of substantive law must always be charged, even if the trial judge must do so on his own motion. In defining an offense, the trial judge should include every material element.’ ” 4 Wharton, Criminal Procedure (12th Ed.) § 540. The court’s instructions on the offense charged must include every element of that offense. 75 Am. Jur. 2d, Trial §713; see annot., “ ‘Duty in instructing jury in criminal prosecution to explain and define offense charged,’ ” 169 A.L.R.
In considering the manner in which the standard is to be applied, we must bear in mind two concepts which if not mutually exclusive at least appear to lead us in opposite directions. The first concept simply stated is that the claimed error under review, because it appears to involve an essential element of a crime, must be examined if not under a constitutional searchlight at least in a constitutional penumbra. “If, when all is said and done, the conviction is sure that the error did not influence the
We cannot ignore the fact that the defendant saw no reason to take exception to an instruction which he now elaims is misleading. “It is the rare case in which an improper instruction will justify a rever
Whether a charge is possibly misleading depends on the substance rather than the form of what is said. The elements of a crime are those constituent parts which must be proved by the state to sustain a conviction. If the court tells the jury what must be proved to sustain a conviction and includes in the recitation all the constituent parts of the crime charged, the fact that these parts are neither labelled nor numbered does not render the recitation misleading.
Due process seeks to assure a defendant a fair trial, not a perfect one. It seeks to have all relevant issues resolved in a single trial, if at all reasonably possible. Subjecting an accused needlessly to multiple prosecutions does not serve the public interest. The requirement that claims of error with respect to jury instructions be raised either by a request to charge or an exception to the charge; Practice Book §§ 852, 854; is not designed to erect an artificial barrier to the correction of judicial error but rather to serve the ends of justice. “The purpose of the rule is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased
The defendant was charged in the first count of the information with robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). This offense occurs when one who commits robbery is armed with a deadly weapon. Robbery is defined in § 53a-133. Under this section “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.” The court charged the jury 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 to compel the owners of the property or another person to deliver up the property.” (Emphasis added.) It immediately repeated this instruction. A little later it charged as follows: “So in this particular case, without getting into the concept of larceny,
The defendant in challenging the sufficiency of the charge asserts “[a]t the trial, he [the defendant] testified that he had left the remaining amount of heroin upstairs in his house and believed that the value of the total quantity of heroin was somewhere between fifty and sixty dollars. At least on the basis of the defendant’s account it would not have been illogical for the jury to conclude that he did not have the felonious intent at the time he took the heroin that was necessary to support a conviction for either the robbery or larceny offenses incorporated in the charge.” This argument not only ignores the heroin admittedly consumed but also overlooks the language used by the court in its instructions on robbery. Furthermore, since the
Larceny involves both taking and retaining. The criminal intent involved in larceny relates to both aspects. The taking must be wrongful, that is, without color of right or excuse for the act; State v. Barnet, 140 Conn. 118, 122, 98 A.2d 530 (1953); and without the knowing consent of the owner. State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978). The requisite intent for retention is permanency. General Statutes § 53a-118 (a) (3) defines “deprive” to mean “(A) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (B) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.”
It is undisputed that the alleged criminal transaction occurred in the defendant’s car. The state’s evidence was that the victim Greene was robbed of money at gunpoint. The defendant’s version was that he and Greene had agreed to share some heroin, that when he requested his share, Greene handed it over to him, at which point he told her that he was going to keep it and that subsequently he used half of what he received from her. There was no claim and no evidence to support a claim of borrowing or temporary deprivation. Indeed, the inference to be drawn from the defendant’s testimony that he told Greene that he was going to keep the drugs and that he used half of the heroin, at least with respect to the half consumed, would have been sufficient to
In finding no error we are not to be understood as approving the charge as given. “We recognize that the task of delivering an accurate and truly instructive charge to a jury is a demanding one. Of foremost importance is the necessity for organizing and outlining governing legal principles in a logical sequence that will fairly inform the jurors of the essential rules to be applied by them in reaching their verdict. Certain principles, of course, are of such a standard and recurring nature that they should present no serious problem for the court in the average case. Others require more preparation and thought on the judge’s part. Complex legalisms must be translated into simple prose that will be understandable by the average layman. The essential elements of the crime or crimes and of any defenses raised by the defendant should be clearly described. Terms of legal significance should be defined in a way that will be understood. If illustrations are to be given, and they are often instructive, they should be furnished in addition to, not in substitution for, plain explanations of those criteria that are to govern the jury’s deliberations.” United States v. Clark, 475 F.2d 240, 250-51 (2d Cir. 1973).
The defendant challenges the reference in the charge to his interest in the outcome of the trial. Although he took no exception to this charge, he asserts that we should consider this claim under the Evans by-pass because this instruction denigrated his testimony and depreciated his right to testify. Because we have considered and rejected this constitutional challenge on numerous occasions in the past; State v. Maselli, 182 Conn. 66, 74, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981); State v. Mastropetre, 175 Conn. 512, 525, 400 A.2d 276 (1978); State v. Bennett, 172 Conn. 324, 335-37, 374 A.2d 247 (1977); State v. Jonas, 169 Conn. 566, 577, 363 A.2d 1378 (1975); State v. Guthridge, 164 Conn. 145, 151, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); this claim merits no consideration under Evans.
There is no error.
In this opinion Armektano and Shea, Js., concurred.
Although the defendant purported to appeal from the verdict rather than the judgment as required by General Statutes § 52-263, this defect in form not being jurisdictional in nature; Lengel v. New Haven Gas Light Co., 142 Conn. 70, 75, 111 A.2d 547 (1955); may be disregarded. Markiavicus v. Bunnell Transportation Co., 119 Conn. 310, 312-13, 175 A. 914 (1934); Schmidt v. Schaub, 115 Conn. 208, 209, 161 A. 98 (1932).
Our discussion of this issue applies not only to larceny as the substratum of the robbery charges but also to the claimed lesser included offenses of larceny in the third and fourth degrees. Because the defendant was found guilty of the original charge of robbery, any claimed inadequacy with respect to the charge on the lesser included offenses would have been harmless in any event. State v. Johnson, 185 Conn. 163, 176 n.2, 440 A.2d 858 (1981).
This is not to say that at some future time this court, especially in the ease of a material variation of the language used here, might not reconsider the question of whether such a reference in the charge amounts to a violation of the defendant’s due process rights either under the state or federal constitution.
Dissenting Opinion
(dissenting). Because I would find error in the failure of the trial court to instruct on intent, I disagree with the majority opinion. In its treatment of this issue, the majority misunderstands the defendant’s claim of error and, therefore, does not fully address the claim.
Jury instructions, of course, need “not be exhaustive, perfect or technically accurate,” so long as they are “correct in law, adapted to the issues and sufficient for the guidance of the jury.” Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953); see Messina v. Iannucci, 174 Conn. 275, 278, 386 A.2d 241 (1978); State v. Sawicki, 173 Conn. 389, 396, 377 A.2d 1103 (1977). An error of constitutional dimension in the instructions in a criminal case is reversible error when it is reasonably possible that the jury were misled by the instructions. State v. Ruiz, 171 Conn. 264, 273-74, 368 A.2d 222 (1976); State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975).
By pleading not guilty, the defendant has “put in issue every essential element of the crime
In this opinion Healey, J., concurred.
I agree with the majority’s disposition of the defendant’s second claim regarding the court’s instructions on the defendant’s interest in the outcome of the trial as a factor in evaluating his credibility as a witness; however, in my view it would be unnecessary to reach this claim.
During oral argument before us, the counsel for the defendant stated: “On page 10 [of the state’s brief], the state misconstrues the defendant’s claim by implying that his allegation of error relies solely on the omission of the word 'permanently.’ Although that omission certainly supports his claim that the court failed to adequately provide the jury with the proper guidelines, the defendant’s claim is based on the total failure of the eourt to define the element of intent as requiring conscious objective.”
The majority’s discussion of the court’s use of the word “purpose” in the instructions on robbery as defined in General Statutes § 53a-133 is irrelevant to the claim of error regarding the sufficiency of the instructions on intent as an element of larceny, which is an element of robbery. See General Statutes §§ 53a-119, 53a-133.
The court’s entire instructions on the issue of intent were as follows: “Now, remember when I told, you that the subject of a robbery is a larceny? I’m going to give you the concept of larceny. ‘A Person commits larceny when with intent to deprive another person of property or to appropriate the same to himself or a third person, he wrongfully takes or withholds such property from an owner.’ So, when you consider in your deliberations robbery in the first degree, you must in order for the defendant to be found guilty of the crime of robbery in the first degree or robbery in the third degree, you must find that this threatened use of force or actual physical force that was used was for the purpose of committing a larceny. Larceny is one of the elements that you must consider before you can find the defendant guilty of the charge of robbery either in the first degree or robbery in the third degree.
“Let me give it to you again. ‘A person commits a larceny when with intent to deprive another person of property or to appropriate the same to himself or a third person, he wrongfully takes or withholds such property from an owner.’ ‘Wrongfully takes property from an owner or withholds the property from an owner’ in this particular ease means money or it could be personal property which would include drugs.”
The issue before this court concerns the adequacy of the trial court’s instructions, not the sufficiency of the evidence. The majority’s detailed discussion of the facts, apparently to support the conclusion that the jury could have reasonably inferred the required intent from the evidence presented, is irrelevant to the claim of error in this case. The error claimed here is not that the instructions were improperly adapted to the facts, but rather that the intent instructions, or absence thereof, did not meet .the minimum constitutional requirements, regardless of the facts of the case.
Reference
- Full Case Name
- State of Connecticut v. Robert Kurvin
- Cited By
- 191 cases
- Status
- Published