State v. Marshall

485 A.2d 930, 3 Conn. App. 126, 1985 Conn. App. LEXIS 1225
CourtConnecticut Appellate Court
DecidedJanuary 8, 1985
Docket2984
StatusPublished
Cited by12 cases

This text of 485 A.2d 930 (State v. Marshall) 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. Marshall, 485 A.2d 930, 3 Conn. App. 126, 1985 Conn. App. LEXIS 1225 (Colo. Ct. App. 1985).

Opinion

Daly, J.

The defendant was found guilty by a jury of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). The defendant has appealed from the judgment rendered on the verdict, and claims that the court erred in its charge to the jury concerning alibi and specific intent. The defendant further submits that the court erred in admitting into evidence a police photograph of him without deleting certain data contained thereon.

The jury could reasonably have found the following facts: On June 5,1983, around 4 p.m., the complainant [127]*127was a passenger in the front seat of a motor vehicle which was stopped for a traffic light at the intersection of North Main, Cherry and North Elm Streets in Waterbury. The defendant reached into the vehicle and grabbed a necklace from the complainant’s neck. He ran in front of the vehicle and disappeared into the North Square Park area. On June 7, the driver of the motor vehicle in which the complainant was a passenger identified the defendant from photographs shown to her at the Waterbury police headquarters. On June 8, the complainant identified the defendant from an array of nine photographs.

The defendant first claims that the court erred in failing to instruct the jury in substantial compliance with the defendant’s request to charge on alibi.1 “Although an alibi is sometimes spoken of as a defense, it operates, in this state, to entitle an accused to an acquittal when he has so far proved the alibi that a reasonable doubt of his guilt is raised upon all the evidence.” State v. White, 155 Conn. 122, 123, 230 A.2d 18 (1967). An examination of the request to charge and the charge actually given2 indicates that it was virtually identical [128]*128except for the addition of “[s]o if you believe their alibi, then you have to decide whether the state disproved the alibi beyond a reasonable doubt.” The defendant claims that the aforesaid sentence shifted the burden of proof concerning alibi from the state to the defendant.

It is the law of this state “ ‘that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.’ ” State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). “Our general rule is that ‘[t]he appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.’ Practice Book §§ 854, 3063; see also Practice Book § 3060F (c) (1) and (2).” State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984). “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 court congestion caused by unnecessary retrials.” Id., quoting State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982). The defendant took no exception to the charge, but we will consider it as having been encompassed by the request to charge.

[129]*129“To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. ... In considering the charge as a whole we eschew critical dissection . . . thereby not passing upon the instructions attached in ‘artificial isolation’ from the whole charge. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984), quoting State v. Corchado, 188 Conn. 653, 660-61, 453 A.2d 427 (1983). After reviewing the charge, we conclude that the law on the defendant’s alibi was correctly stated in this case. “The charge read as a whole fairly presented the case to the jury and was correct on the law so that no injustice was done.” Frankovitch v. Burton, 185 Conn. 14, 25, 440 A.2d 254 (1981).

The disputed sentence taken into consideration with the rest of the charge did not shift the burden of proof on alibi to the defendant. The verdict indicates that the jury was satisfied with the victim’s account of what took place and her identification of the defendant as the culprit, and that they did not find the alibi evidence credible. These were questions for them to decide, and the evidence abundantly supported their conclusion. State v. White, supra, 124.

The defendant next claims that the court erred in charging the jury that they mandatorily had to infer specific intent if they found that the act of taking the necklace had occurred beyond a reasonable doubt.3 Lar[130]*130ceny requires the existence of a felonious intent in the taker to deprive the owner of it permanently. State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978). “[I]ntention is a mental process, and of necessity it must be proved by the statement or acts of the person whose act is being scrutinized.” State v. Jacobowitz, 194 Conn. 408, 416, 480 A.2d 557 (1984), quoting State v. Mazzadra, 141 Conn. 731, 735, 109 A.2d 873 (1954). The acts involved here include the seizing of the necklace from the person of the victim and the fleeing from the scene with it.

The defendant, relying on Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), claims that the trial court’s instructions violated his constitutional rights. “In the ordinary case we would refuse to review error claimed in jury instructions which, as here, was not brought to the attention of the trial court. Practice Book §§ 315, 3063. We have, however, previously held that because the type of error claimed falls within the ‘exceptional circumstances’ rule of State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), we will reveiw it despite the lack of objection and exception below.” State v. Johnson, 185 Conn. 163, 167, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983).

At the outset, it should be noted that the Sandstrom language, “every person is conclusively presumed to intend the natural and necessary consequences of his act,” is lacking in our case.

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Bluebook (online)
485 A.2d 930, 3 Conn. App. 126, 1985 Conn. App. LEXIS 1225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marshall-connappct-1985.