State v. Dunbar

656 A.2d 672, 37 Conn. App. 338, 1995 Conn. App. LEXIS 163
CourtConnecticut Appellate Court
DecidedMarch 28, 1995
Docket13155
StatusPublished
Cited by11 cases

This text of 656 A.2d 672 (State v. Dunbar) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dunbar, 656 A.2d 672, 37 Conn. App. 338, 1995 Conn. App. LEXIS 163 (Colo. Ct. App. 1995).

Opinion

Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault of a peace officer in violation of General Statutes § 53a-167c,1 assault in the second degree in violation of General Statutes § 53a-60 (a) (2),2 and assault [340]*340in the third degree in violation of General Statutes § 53a-61 (a).3 The defendant was sentenced on each of the first two counts for a term of imprisonment of six years, suspended after one year, followed by five years probation, and for a term of one year on each of the remaining counts, with all sentences to run concurrently.

The defendant raises three claims on appeal: (1) that the trial court improperly instructed the jury on the intent necessary for the crimes of assault of a peace officer; (2) that punishment for the convictions of assault in the second degree and assault of a peace officer violated his double jeopardy rights; and (3) that punishment for the convictions of assault in the third degree and assault of a peace officer violated his double jeopardy rights. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 27,1992, at approximately 8:15 p.m., members of the Waterbury police department were effecting arrests on Walnut Street in Waterbury. As Officer John Kennelly was struggling with an arrestee, the defendant approached Kennelly from behind and struck him on the head, at least twice. Officer Walter Faust observed the defendant’s actions and rushed to Kennelly’s aid. The defendant wrenched a flashlight from Faust’s hand and struck him over the left eye with it. The defendant then struck Faust with the flashlight at least three more times, knocking him to the ground. The defendant was then arrested and handcuffed with the aid of another officer.

[341]*341I

The defendant claims that the trial court improperly failed to instruct the jury on the specific intent necessary to commit the crimes of assault of a peace officer. This claim was not preserved at trial. The defendant seeks review under the plain error doctrine4 and the bypass doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant argues that the trial court failed to instruct on an essential element of the crimes charged, which is constitutionally impermissible. State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988).

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. State v. Wideman, 36 Conn. App. 190, 204-205, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995). “We may . . . dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Plude, [342]*34230 Conn. App. 527, 537, 621 A.2d 1342, cert. denied, 235 Conn. 923, 625 A.2d 824 (1993).

The claim of failure to instruct the jury adequately with regard to an essential element of the crime of assault of a peace officer, may result in a due process violation implicating the fairness of the trial. State v. Hinton, 227 Conn. 301, 313-14, 630 A.2d 593 (1993). The issue is one of constitutional magnitude implicating a fundamental right. The defendant, however, has not satisfied the third condition enunciated in Golding. He has failed to show that a constitutional violation clearly exists and that he was deprived of a fair trial.

The trial court instructed the jury as follows: “Now, I want to talk to you about these charges and what elements the state has to prove to meet its burden of proof. As for the charge of assault on a police officer, in the first and second counts of the information, the defendant is charged with the crimes of assault on a police officer in violation of General Statutes § 53a-167c; that statute provides in pertinent part that a person is guilty of assault of a peace officer when with intent to prevent a reasonably identifiable police officer as defined in § 53a-3 (9) — which I’ll explain to you later — this person intends to prevent a reasonably identifiable peace officer from performing his duty and in doing so causes physical injury to such peace officer while this officer is in the performance of his duty.”

The trial court did not specifically define the term intent until it gave its charge on the offense of assault in the third degree.5 The trial court repeated an iden[343]*343tical definition of intent with regard to the charge of assault in the second degree. The court also reminded the jury “that the burden of proving intent beyond a reasonable doubt is on the state.”

The defendant argues that the trial court specifically defined intent as to the third and fourth counts charging assault in the second degree and assault in the third degree, but did not do so for the first and second counts charging assault of a peace officer. Although the court could have provided a more thorough instruction by referring to its definition of intent as applying to all crimes charged against the defendant, our review must determine whether it was reasonably possible that the jury was mislead. Under the third prong of Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if from the substance of the charge rather than its form, it is reasonably possible that the jury was misled. State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). To be adequate, the charge must have provided the jurors with a clear understanding of the elements of the crime of assault of a peace officer, and have afforded proper guidance for the determination of whether those elements were proved beyond a reasonable doubt. See State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985).

Having reviewed the charge as a whole, we conclude that it is not reasonably possible that the jury was misled. The element of intent required for the crime [344]*344of assault of a peace officer was conveyed to the jury.

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Bluebook (online)
656 A.2d 672, 37 Conn. App. 338, 1995 Conn. App. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dunbar-connappct-1995.