Posts tagged with "jury instruction"

Where Defense Counsel Invited Error, He Could Not Then Demand a Mistrial

In the previous article “Jury Could Reasonably Infer That Defendant Withheld Fact She Participated in Robbery In Order To Receive State Benefits,” the defendant did not succeed in her claim that the State presented insufficient evidence to convict her of fraudulent receipt of worker’s compensation benefits. In her appeal, she additionally argued that because an officer improperly referenced the defendant’s request for counsel during his testimony, the court should have declared a mistrial but failed to do so.

During cross-examination, defense counsel pressed the officer regarding whether he had taken a statement from the defendant following the robbery, asking variants of the same question. The officer consistently stated he did not take a statement, and upon repeat questioning, clarified that he had not done so because the defendant asked for an attorney. Defense counsel did not object to this testimony, and it was the judge who pointed out, outside the presence of the jury, the potential constitutional issue of referencing the counsel request. At this point, defense counsel made an oral motion for a mistrial, arguing that the statement was improper and nonresponsive. The court denied the motion, finding that the officer’s testimony was “sort of responsive,” and instead instructed the jury to disregard the officer’s testimony about the defendant’s request for counsel.

Declaring a mistrial is an extreme measure granted in very few situations, such as prejudice undermining the right to a fair trial. If the court can implement a curative action to counter the prejudice, oftentimes through a jury instruction, this is the preferred course of action. It is within the trial court’s discretion to grant or deny a motion for a mistrial, and the defendant “bears the burden of establishing that there was irreparable prejudice to the defendant’s case such that it denied him a fair trial.” However, if the error claimed by the defendant resulted from questioning on his part during cross-examination, “[s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.”

In this case, the Appellate Court determined that defense counsel invited the error. By repeatedly asking the officer whether he had taken a statement from the defendant, despite consistent negative answers, defense counsel “opened the door for [the officer] to explain why there was no statement.” In addition, the defendant failed to show how she was denied a fair trial. The judge gave a curative instruction to disregard the statement, and “[a]bsent evidence to the contrary, we presume that the jury followed the court’s limiting instruction.” The Court further noted the strength of circumstantial evidence against the defendant. Therefore, this argument on appeal was rejected as well, and the judgment affirmed.

When faced with a charge of larceny, burglary, conspiracy, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Jury Instruction Was “Accurate,” Not Misleading: Appeals Court Affirms Evading Responsibility Judgment

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s claim that the trial court’s jury instruction regarding the elements of evasion of responsibility was misleading.

This case arose from an incident that occurred on the night of July 16, 2001, in Bridgeport, CT. The defendant consumed six beers in three and a half hours before and while eating dinner. He left the restaurant in his truck and approached the same intersection as the victim, who was on a motorcycle. Without signaling, the defendant turned into the victim’s path, and despite significant effort to avoid a collision, the victim struck the back end of the truck. The victim was thrown from his motorcycle and died from his injuries. A witness observed the accident and later testified that “the truck then stopped, the defendant stepped out of the truck, looked, got back in and took off.” Police pursued the defendant, who stopped only after he was forced to by a second police cruiser. The defendant was visibly intoxicated, and blood alcohol tests produced readings of 0.172 and 0.167, over twice the legal limit.

The defendant was charged with second-degree manslaughter, second-degree manslaughter with a motor vehicle, and evading responsibility, in violation of Connecticut General Statutes (CGS) §§ 53a-56(a)(1), 53a-56b(a), and 14-224(a), respectively. At trial, the defendant testified that “while he was turning left, after giving a signal, he felt an impact toward the rear of his truck, saw nothing and thought someone had hit his vehicle and driven off.” The defendant was convicted on the second two counts. He appealed his conviction, arguing, in part, that the trial court did not properly instruct the jury regarding the elements of evading responsibility. Specifically, he claimed:

1)      The court misled the jury by using the word “prevent” rather than “unable” with respect to reporting requirements of CGS § 14-224(a).

2)      The court improperly instructed the jury that it had to find that “some outside force caused the defendant to be unable to report the information,” rather than “the defendant’s being unable to report for any cause or reason.”

3)      The court did not instruct the jury that the defendant was legally excused from the remaining statutory requirements because he was arrested while seeking assistance for the victim.

The Appellate Court was not persuaded by any of these arguments. Because the defendant did not draw a sufficient distinction between the use of “prevent” and “unable,” the court’s use of the first word was harmless. The Court reiterated that CGS § 14-224(a) does not provide any legal excuse for failing to stop. As the legislative history indicates, “failure to stop immediately cannot be cured at some later time by an operator reporting the incident to police.” As such, a reasonable jury could find that the defendant did not immediately stop and render assistance to the victim following the collision, and by leaving the scene he was not satisfying his duties under the statute. The Appellate Court found that the jury instruction, as given, was proper and did not deprive the defendant of a fair trial.

When faced with a charge of evading responsibility, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Appellate Court Declines to Review DUI Convict’s Unpreserved Claims

In a recent criminal law matter, the Appellate Court of Connecticut declined to review the defendant’s unpreserved claims of instructional error and evidentiary impropriety.

In this case, the defendant was charged with operating a motor vehicle while under the influence (OMVUI), in violation of Connecticut General Statutes § 14-227a(a)(1), along with other charges. At trial, the State called to the witness stand an optometrist (witness), who was also an expert in field sobriety testing. The prosecutor posed a hypothetical and asked the witness whether, based on the facts given, he would believe the person was under the influence. Defense counsel objected, arguing that the question was beyond the witness’s area of expertise. However, the court overruled, stating that the witness had “additional qualifications beyond the optometry field.” In addition, the court instructed the jury that they could find the defendant guilty if he was “driving while impaired,” though defense counsel did not object to this charge.

The defendant was subsequently convicted on all counts and appealed. He argued, for the first time, that the trial court’s jury instruction was deficient because it “dilut[ed] the state’s burden of proof.” Furthermore, the defendant claimed that the court improperly allowed a witness to express an opinion “with regard to an ultimate issue in the case.”

When a party raises a claim for the first time not at trial but instead on appeal, the Appellate Court is limited to review “under either the plain error doctrine… or the doctrine set forth in State v. Golding.” If a party fails to brief or argue either doctrine, the Court will decline to afford such review. In addition, “[a]ppellate review of evidentiary rulings is ordinarily limited to the specific legal [ground] raised by the objection of trial counsel.”

In this case, the Appellate Court declined to review both of the defendant’s claims. It reasoned that the defendant did not submit a written request to change the jury instruction, nor did defense counsel object when it was given. With respect to the witness’s testimony, defense counsel objected to the specific hypothetical question posed as being beyond the witness’ expertise. However, on appeal, the defendant presented a different ground for appeal, and extraordinary circumstances did not exist to as to permit review of the unpreserved claim.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Jury Properly Instructed by Trial Court Regarding Inferences From Breath Test Refusal

In a recent criminal law matter, the defendant was the subject of a traffic stop at 12:40am on April 29, 2005. University police believed that he was driving under the influence based on his erratic driving, a suspicion confirmed by the defendant’s slurred speech, red glassy eyes, the smell of alcohol in his car, and failed field sobriety tests. The defendant was arrested and transported to university police headquarters. After being advised of his rights and the implied consent to take a breath test, the defendant stated he would not consent until he contacted an attorney. “The defendant repeatedly stated that he would not do anything without an attorney,” so police recorded the refusal. However, the defendant later requested to take the breathalyzer test, but officers would not administer it. They stated it was too late; however, if the officers administered the test at the time of this request, it would have occurred within the two-hour statutory window.

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a. Following the close of evidence at trial, the court proposed the following jury instruction: based on the evidence, if the jury concluded that the defendant refused to take the breathalyzer test, it could draw reasonable inferences stemming from that fact. The defendant requested that the jury instruction include “consciousness of innocence” language about the officers’ refusal to conduct the test after the defendant requested it, and to draw any reasonable inference from that fact as well. The court denied the request and the defendant was found guilty of OMVUI. He appealed the conviction, stating, in part, that the jury instruction improperly focused on his refusal without enough emphasis on his later request to submit. Therefore, he claimed the court “improperly deprived him of a theory of defense” and the jury instruction was “imbalanced in favor of the state.”

The Supreme Court of Connecticut has stated that for a defendant to be entitled to a theory of defense instruction, he or she must assert a recognized legal theory. Likewise, our appellate court has “repeatedly refused to apply the consciousness of innocence principle to jury instructions regarding consciousness of guilt,” and as such is not a recognized legal theory. In this case, the Appellate Court of Connecticut found that because the proposed language from the defendant encompassed this very scenario, he was not entitled to a theory of defense instruction.

When a court considers a challenge to a jury instruction that does not give rise to constitutional implications, the charge is “considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.” The instruction need only be correct in law (in light of the facts of the case) and not mislead the jury. In this case, the trial court properly instructed the jury that it first had to actually find that the defendant refused to submit to the breathalyzer test before it could draw any inferences from a refusal. “The court told the jury it must consider all of the evidence… [T]he instruction… did not instruct the jury that it could not consider the defendant’s request to submit to the test. … [It] did not inform the jury that it could draw a negative inference from a refusal to take a Breathalyzer test.” Instead, the trial court “merely informed the jury that it could draw an inference from [the defendant’s] refusal.” After addressing additional arguments on appeal, the Appellate Court affirmed the judgment.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Jury Instruction Relating to Defendant’s Refusal to Submit to a Breath Test Upheld by State Appellate Court

In a recent criminal law matter, the Appellate Court of Connecticut did not find that a trial court’s jury instruction on consciousness of guilt, as it related to a defendant’s refusal to submit to a breath test, was improper.

This case arose from an incident that occurred on August 7, 2005. The defendant and his friend spent approximately six hours fishing on Long Island Sound, during which the defendant drank four beers. Approximately an hour later, the defendant drove his friend to Danbury. While returning to his home in Norwalk, the defendant approached a well-marked construction zone that closed down one lane. The defendant swerved into this lane and crashed into a large orange sign, then continued toward the construction site. He nearly struck an off-duty Wilton police officer, who ordered the defendant into a nearby parking lot. The defendant was arrested after he failed multiple field sobriety tests administered by two officers, in conjunction with their observations of the smell of alcohol, glassy and glazed eyes, and disheveled clothing.

At the police station, the defendant was asked to submit to a breath test and advised of his right to counsel. He unsuccessfully attempted to contact an attorney, and then was asked once more to submit to the breath test. Because the defendant again insisted on speaking to an attorney, he was advised that his continued request would be deemed a refusal to take the test, but the defendant persisted. During trial, the judge instructed the jury that the defendant’s conduct may tend to show consciousness of guilt, and “if [the jury found] the defendant did refuse to submit to [the breath test, the jury] may make any reasonable inference that follows from that fact.” The defendant was convicted of operating a motor vehicle while under the influence (OMVUI) in violation of State law. He appealed on multiple grounds, including, in part, the claim that the court improperly instructed the jury that refusing to submit to a breath test could be treated as evidence of consciousness of guilt.

When a court considers a charge of the court, it must determine “whether [the instruction] fairly presents the case to the jury in such a way that injustice is not done to either party.” The instructions are not dissected in a piecemeal fashion; rather, when the challenge to a jury instruction does not raise a constitutional question, the reviewing court will consider its total effect. General Statute § 14-227a, the State’s OMVUI law, includes a subsection that reads, “[T]he court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a … breath … test.” In other words, the Connecticut legislature intended for courts to instruct juries on “permissive inferences.”

In this case, the Appellate Court reviewed the language of the jury instruction and determined it was “well within the parameters of § 14-227a.” The court repeatedly told the jury that consciousness of guilt was only a permissive inference; as such, the trial court did not abuse its discretion. The Appellate Court argued that even if the instruction was improper, the defendant failed to provide evidence that it was harmful. The Court noted the amount of evidence, other than the defendant’s refusal, that indicated he was under the influence of alcohol at the time of the incident.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Appellate Court Finds Defendant’s Convictions Proper: Evidence Was Sufficient, and Guilty Verdicts Were Not Legally Inconsistent

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s insufficiency of the evidence and legally inconsistent guilty verdicts claims.

This case arose from an incident that occurred on May 20, 2008. The defendant and his friends confronted members of a rival gang, including the victim, who struck the defendant in the face as the two groups met. Each separated and fought others when the defendant “pulled a handgun from his waist and fired five shots into the crowd of participants in the fight,” one which struck the victim. The defendant fired a sixth round as he ran for his vehicle.

The defendant was subsequently arrested and charged with assault in the first degree, reckless endangerment in the first degree, and carrying a pistol without a permit. The gun used was never introduced into evidence, but the State provided forensic, testimonial, and demonstrative evidence that the gun used by the defendant had a barrel that did not exceed twelve inches in length. At the close of evidence, the trial court issued a jury instruction that discussed the essential elements of each crime. The jury returned a guilty verdict on all counts.

On appeal, the defendant first argued that a jury instruction allowed “legally inconsistent guilty verdicts” on the first two charges. He argued that each contained a mutually exclusive mental state – intentionality and recklessness – thus it would be improper to conclude that he acted “intentionally and recklessly with regard to the same act and the same result.” When a court reviews a claim of legal inconsistency, it must determine whether “there is a rational theory by which the jury could have found the defendant guilty of both crimes.” As the Appellate Court highlighted, “It is not inconsistent… to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results.”

In this case, the Court agreed that the convictions were not legally inconsistent, because the trial court never instructed the jury that the crimes were committed by the same physical act. It explained, “It seems evident that one who deliberately shoots at another person acts intentionally, while one who shoots into a crowd acts recklessly,” a position the defendant did not contest. Thus, the Court determined that it was reasonable for the jury to conclude that the defendant intended to cause injury to the victim, while also being reckless with respect to firing shots into a gathered crowd. Therefore, this aspect of the defendant’s appeal failed.

The defendant also argued that there was insufficient evidence to convict him of carrying a pistol without a permit. He claimed that the State did not prove that the handgun he fired met the statutory definition of a pistol, which requires a barrel length of less than twelve inches. The Appellate Court readily disagreed with the defendant: based on the forensic, testimonial, and demonstrative evidence supplied to the jury, it could reasonably conclude that the gun’s barrel length was less than twelve inches. “Direct numerical evidence of barrel length is not required to obtain a conviction [for carrying a pistol without a permit].” Therefore, the Court affirmed the judgment.

When faced with a charge of carrying a pistol without a permit or other gun offenses, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Defendant Unsuccessfully Contests Jury Instructions on Intent, But Succeeds With Double Jeopardy Claim

In a recent criminal law matter, the Appellate Court of Connecticut reversed in part and affirmed in part a defendant’s multi-count conviction following a coordinated ambush that left numerous victims with serious injuries.

This case arose from an incident that occurred on August 2, 2004. An individual “orchestrated a plan” to exact retribution against a group who attacked him a week earlier, recruiting approximately twenty relatives and friends, including the defendant, for an ambush at an enclosed basketball court. The plan was successful, and the defendant shot one victim twice and stabbed another multiple times in the back.

The defendant was subsequently arrested and charged with ten counts: two for conspiracy to commit assault in the first degree, six for assault in the first degree as an accessory, and two for assault in the first degree. Before specifically instructing the jury as to the elements of each offense, the court first gave an instruction “as to the concept of intent generally.” The defendant stated he had no objections to the instructions as given. The defendant was convicted on nine of ten counts (including both conspiracy charges) and sentenced to twenty-nine years’ incarceration.

On appeal, the defendant argued that the general intent instruction misled the jury because it allowed them to convict based on “intent to engage in the prohibited conduct without determining that he specifically intended to cause serious physical injury.” He further contended that his convictions for two counts of conspiracy, for which he received two sentences, violated double jeopardy protections because they were one crime arising from a single incident.

When a court reviews the appropriateness of a jury instruction, it must decide whether the charge in its entirety, rather than a section in isolation, properly presents the case to the jury. The Supreme Court of Connecticut has consistently held that “[a] trial court’s repeated instruction that specific intent was an element of the crime charged eliminated any possibility that the jurors reasonably could have mistakenly believed that the defendant could properly have been found guilty based on a finding of only general intent.”

In this case, the Appellate Court reviewed the trial transcripts and counted the phrase “intended to cause serious physical injury to another person” twenty times, while “specific intent” was used seven times. In stark contrast, the general intent instruction was only referred to three times, and its inclusion may have actually assisted the jury in understanding the meaning of specific intent. The Court determined that the trial court “unmistakably conveyed to the jury that specific intent was an element of the assault charges against the defendant.” Thus, this aspect of the defendant’s appeal failed.

The defendant, however, succeeded on his second claim regarding double jeopardy, with which the State agreed. An individual cannot receive cumulative punishments for two or more crimes, which he asserts instead comprise of a single crime, arising out of the same transaction or occurrence. Typically, a court will look at the statutes to determine if one requires proof of an element the other does not possess. In this case, however, it was quite clear that there were two conspiracy convictions stemming from a single agreement – the ambush. Therefore, the Court reversed the convictions and ordered the trial court to merge the conviction on these two counts while vacating the sentence for one of them.

When faced with a charge of assault, conspiracy, or accessory, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Appellate Court Considers Whether Evidence of Previously-Set Fire Was Improperly Admitted in Arson Trial

In “Double Jeopardy Not Implicated in Case Where Man Purposefully Burned Down His Home to Collect Nearly $400,000 in Insurance Payments,” the Appellate Court of Connecticut rejected a defendant’s claims that his constitutional protections against double jeopardy were violated when he was convicted of both larceny in the first degree and insurance fraud. The Court considered other matters on his appeal, including whether or not the court improperly admitted testimony.

In her sworn statement, the defendant’s daughter informed police that the defendant had purposefully set her car on fire during the summer of 2001. She explained that she did not want to have to continue making her car payments, so the defendant “told [her] that he was going to start a fire in the car and make it look like an electrical fire so that she could collect the insurance and pay off the automobile loan.” His effort was a success: police determined the damage was accidental, the car was deemed a total loss, and the insurance company, as expected, paid her claim.

Prior to the defendant’s trial for arson, insurance fraud, and larceny, he filed a motion seeking to exclude any evidence related to car fire. He argued that he did not receive any of the proceeds, was never charged for a crime, and the evidence was more prejudicial than probative. The State countered that this evidence of misconduct was admissible because it was relevant in establishing intent as to whether the house fire was accidental and showed a common scheme. The court denied the motion but issued a jury instruction that the purpose of the evidence was to establish “a method or plan or scheme… in the commission of criminal acts or the existence of intent or the absence of accident.”

Generally, evidence of a defendant’s prior bad acts is inadmissible to prove guilt on a present charge. However, “evidence of crimes so connected as to tend directly to prove the commission of the charged crime is admissible.” Such evidence will be admitted only if it is relevant to a statutory exception, such as proving intent, and the probative value outweighs the prejudicial effect. In this case, the Appellate Court agreed with the defendant that the daughter’s statement was inadmissible to show a common scheme or plan because the car fire occurred more than a year before the house fire. However, the Court sided with the State and found the evidence was admissible “to prove the closely related issues of intent… lack of accident or mistake.” As the Court elaborated:

The evidence that the defendant started a fire in the automobile in order that his daughter might recover insurance proceeds tended to prove that he knew how to start a fire that appeared to be accidental in nature and that he intentionally set the fire to his residence to recover insurance proceeds.

Whether or not the house fire was accidental in nature became an issue in the case, so the evidence regarding the car fire made “utterly limpid his subsequent intent to burn down his house… to recover the insurance proceeds.” After determining the evidence would not “shock the sensibilities” of the jury, resulting in undue prejudice to the defendant, the Appellate Court affirmed judgment as to this aspect of the defendant’s appeal.

When faced with a charge of arson, fraud, or larceny, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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