State v. Lopez

502 A.2d 418, 5 Conn. App. 599, 1985 Conn. App. LEXIS 1206
CourtConnecticut Appellate Court
DecidedDecember 17, 1985
Docket2187; 2188
StatusPublished
Cited by17 cases

This text of 502 A.2d 418 (State v. Lopez) 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. Lopez, 502 A.2d 418, 5 Conn. App. 599, 1985 Conn. App. LEXIS 1206 (Colo. Ct. App. 1985).

Opinion

Hull, J.

In this case, two defendants who were tried together appeal from their convictions arising out of the same factual background. Their cases were also combined on appeal. Each defendant was convicted, after a jury trial, of possession of burglar’s tools in violation of General Statutes § 53a-106, of burglary in the third degree in violation of General Statutes § 53a-103, of larceny in the sixth degree in violation of General Statutes § 53a-125b, and of conspiracy to commit burglary in violation of General Statutes § 53a-48.

Both defendants claim as error that the trial court improperly instructed the jury on intent, an essential element of each of the crimes charged. The defendant Lopez also claims as error (1) that the trial court denied his sixth amendment right to confrontation by restricting his cross-examination of one of the investigating officers, and (2) that the state failed to prove beyond a reasonable doubt two essential elements of the offense of possession of burglar’s tools. The defendant Sariol also asserts as error (1) that he was convicted of possession of burglar’s tools without sufficient evidence as to whether he had the intent to use, or knowledge that some person intended to use, a screwdriver in the commission of the burglary, and (2) that he was denied due process at sentencing because, in imposing sentence, the trial court erroneously assumed that the defendant was unwilling to admit his guilt in exchange for a proper degree of leniency in sentencing.

The undisputed facts and pertinent testimony before the jury follow. On March 2, 1983, at some time between 10:30 a.m. and 10:50 a.m., Officers Robert [601]*601Studwell and Frank Tyska, and Sergeant John Suchy of the Norwalk police department responded to a call of a burglary in progress at Six Taylor Avenue. An anonymous female caller had reported two men entering through a rear window. Tyska and Suchy went to the rear of the building with a police dog while Stud-well covered the front door. When Tyska noticed a cut rear window screen and an open window, he yelled into the house that the dog would be turned loose unless everyone came out. Tyska then heard footsteps traveling away from him while Studwell heard footsteps traveling toward him. The defendants ran out the front door where Studwell placed them in custody at gunpoint. A search of Sariol at the scene by Studwell produced a watch crystal and a screwdriver. A search at headquarters produced a watch from Sariol and earrings from Lopez. Studwell testified that the search of Lopez had been conducted by Tyska and Tyska testified that it had been conducted by Studwell.

The earrings and watch were identified as belonging to Jacob Kozar and Debra Wagner who resided at Six Taylor Avenue on the date of the burglary. The items had been removed from one of the bedrooms. Kozar and Wagner did not give the defendants permission to enter their house and neither had ever met either of the defendants. The screwdriver found on Sariol was admitted into evidence. It did not belong to Jacob Kozar or Debra Wagner. Suchy testified that after the apprehension of the defendants he observed the point of entry and the cut screen. He testified that his investigation of prior burglaries indicated the use of screwdrivers in some of them. He also testified that the screwdriver was used to cut the screen and that in his opinion it was a burglar tool.

The defendant Lopez testified as follows. Sometime before March 2,1983, he had gone to Six Taylor Avenue to collect $50 which Kozar owed him for a televi[602]*602sion set Lopez had sold him several months earlier. No one was at home on this first visit. On March 2, 1983, he returned with Sariol. He asked Sariol to go to the rear of the building to notify him if Kozar attempted to leave through the back door. He entered the open front porch door and knocked on the inner front door and waited for five minutes with no response. Sariol then returned to the front door. The police arrived and arrested both of them, searching both men but finding nothing. Lopez was not aware that Sariol had a screwdriver. He had never seen either the watch or the earrings before. He did not enter the inner front door and did not enter the house through any window.

Sariol’s testimony was consistent with that of Lopez. Both he and Lopez were on the front porch when the police arrived. Sariol never entered the house. Lopez never had the screwdriver, the earrings or the watch in his possession. No earrings were taken from Lopez.

I

As to Both Defendants: Whether the Court Improperly Instructed the Jury on Intent

Both defendants claim error in the court’s instructions to the jury on the intent element of the crimes charged against them. Since neither defendant requested an instruction on intent, or excepted to the charge, we can consider this claimed error only under the second prong of the Evans bypass rule; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); that is, to determine if the defendants have clearly been deprived of a fundamental constitutional right and a fair trial. We will not unnecessarily fatten this opinion with the well-known criteria governing the application of this test. The principles are well summed up in Evans, supra, and most recently refined in State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985): “Once it has been established that the record adequately [603]*603supports a claim that a defendant has clearly been deprived of a fundamental constitutional right and a fair trial; State v. Evans, supra, 70; the merits of the claim must be determined.” (Emphasis added.) Review of those merits involves the inquiry, not whether the ruling or instruction at issue is erroneous, but whether it violated some fundamental constitutional right of the defendant. State v. Torrence, supra.

Thus, our Evans inquiry in this case has three prongs: (1) whether the record supports the defendant’s claim that the charge raises a question of fundamental constitutional dimension; (2) if so, whether there was error; and (3) if there was error, whether it requires reversal. Id. In cases involving claimed error in the judge’s charge to the jury, the ultimate issue is whether it was reasonably possible that the jury was misled. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

The defendants’ claim is that the court misled the jury by equating knowledge with specific intent. Such a claim raises a sufficient constitutional issue to afford an Evans review; State v. Kurvin, supra, 558; and our review of the record indicates adequate support for the claim. Accordingly, we now consider the merits of the claim.

During its charge to the jury, the court did not read the statutory definition of intent.

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Bluebook (online)
502 A.2d 418, 5 Conn. App. 599, 1985 Conn. App. LEXIS 1206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopez-connappct-1985.