State v. Cobb

507 A.2d 457, 199 Conn. 322, 1986 Conn. LEXIS 768
CourtSupreme Court of Connecticut
DecidedApril 1, 1986
Docket11652
StatusPublished
Cited by33 cases

This text of 507 A.2d 457 (State v. Cobb) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cobb, 507 A.2d 457, 199 Conn. 322, 1986 Conn. LEXIS 768 (Colo. 1986).

Opinion

Arthur H. Healey, J.

The defendant, Grady Cobb, was convicted by a jury of assault in the first degree, in violation of General Statutes § 53a-59 (a) (l).1 He was [323]*323sentenced to a term of not less than five nor more than ten years. He appeals from the judgment of conviction and claims that the trial court erred in its instructions to the jury on (1) the defendant’s failure to testify, and (2) the essential elements of the offense charged. We find no error.

The jury could reasonably have found the following facts relevant to this appeal: At approximately 6 p.m. on May 12,1981, the defendant and the victim, Ruben Rodriguez, were struggling for a gun which both were clutching in their clasped hands above their heads. At the same time, off-duty Stamford police officer Gary Cosby and his friend, Rodney Bass, were driving on Greenwich Avenue in Stamford, and observed the two men engaged in a struggle. Cosby stopped his vehicle on the side of the street. A shot was fired from the weapon. It appeared to Bass that the defendant was in control of the weapon and that Rodriguez had been backing away from the defendant. More shots were fired. The defendant and Rodriguez fell on a stairway and the defendant stood up and fired a shot in the direction of Rodriguez, who was still lying on the stairs. The defendant then walked away from the scene. Cosby went to the aid of the victim while Bass called the police. Cosby knew both the victim and the defendant, and both Cosby and Bass made out-of-court and in-court identifications of the defendant. A medical doctor testified that she examined Rodriguez on the night of the shooting and that a bullet had entered his body near his heart. She considered the injury to be a “very serious physical injury.” Neither the defendant nor the victim testified at trial. The defendant did not call any witnesses in his defense.

The defendant first claims that the court erred in instructing the jury on the defendant’s failure to tes[324]*324tify because the instruction did not comport with General Statutes § 54-84 (b). The statute provides in part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” The instruction given to the jury by the trial court stated: “And in fairness to this defendant, you should draw no inference from the fact that he did not take the stand and testify in his own behalf.”

“Our analysis of this claim of error must proceed in three stages. Is the defendant entitled to raise this claim when he did not raise it at trial? If this claim is properly here, was the instruction given by the trial court erroneous? If the instruction was in error, was the error harmless?” State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985). We initially note that the defendant did not except at trial to the charge as given. Nevertheless, because § 54-84 (b) “serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial”; id.; and because it is “plain error for a trial judge not to comply with the mandate of General Statutes § 54-84 (b)”; State v. Tatem, 194 Conn. 594, 595, 596, 483 A.2d 1087 (1984); we will review the claim.

The language of the instruction given by the trial court was not in literal compliance with § 54-84 (b) and it was error for the trial court not to give the charge in the statutory language. “No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must . . . use the unique power of the jury instruction to reduce that speculation to a minimum.” Carter v. Kentucky, 450 U.S. 288, 303, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981); see State v. Tatem, supra, 599. Our legislature has prescribed § 54-84 (b) to be the jury instruction that must be given to reduce speculation to a minimum. Although we conclude that it was error [325]*325for the trial court not to follow the statute as worded when instructing the jury, that conclusion does not end our analysis.

The third prong of our inquiry is whether the error in the giving of the § 54-84 (b) instruction was nevertheless harmless. “An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury were misled. State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982).” State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982); State v. Tatem, supra, 599. In this case the jury was told that it could draw “no inference” from the defendant’s failure to testify. “An instruction prohibiting any inference would also preclude an unfavorable inference.” State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985);2 cf. State v. Tatem, supra. Because the jury was instructed that “no inference” may be drawn from the fact that the defendant did not testify, “the substantive meaning of the statutory requirement was conveyed.” State v. Marra, supra; see State v. Carrione, supra, 686. The jury was also instructed that “an accused person is not obliged to take the witness stand in his own behalf” and that the defendant is not “require[d] ... to prove his innocence” but that it is the “burden of the state to prove his guilt beyond a reasonable doubt.” The error of the trial court in not following the prescribed statutory language was, therefore, harmless in the context of this case.

[326]*326The defendant’s second claim is that the trial court erred in its instructions to the jury on the essential elements of the offense charged. The defendant concedes that exceptions were not taken to all of the instructions. Despite the defendant’s failure to except to the trial court’s instructions on all the matters upon which he now seeks review, we will review his claim on appeal under the second “exceptional circumstances” prong of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The alleged failure of the trial court to submit to the jury the essential elements of the offense charged would implicate the fundamental constitutional rights of the defendant. See State v. Griffin, 175 Conn. 155, 162-63, 397 A.2d 89 (1978).

The defendant contends that the jury charge on the elements of the offense presented such a “confused pattern for the jury to untangle” that the charge contravened his right to know the nature of the accusations against him, his right to due process, and his right to a fair trial under both the federal and state constitutions.

In reviewing a jury charge, we look to the charge as a whole to determine whether it “ ‘gave the jury a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.’ State v. Avila,

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Cite This Page — Counsel Stack

Bluebook (online)
507 A.2d 457, 199 Conn. 322, 1986 Conn. LEXIS 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cobb-conn-1986.