State v. Monar

579 A.2d 104, 22 Conn. App. 567, 1990 Conn. App. LEXIS 278
CourtConnecticut Appellate Court
DecidedAugust 14, 1990
Docket7397
StatusPublished
Cited by4 cases

This text of 579 A.2d 104 (State v. Monar) 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. Monar, 579 A.2d 104, 22 Conn. App. 567, 1990 Conn. App. LEXIS 278 (Colo. Ct. App. 1990).

Opinion

Cretella, J.

The defendant appeals from her conspiracy conviction challenging the denial of her motion for judgment of acquittal and the denial of her motion to correct sentence. She was charged by means of a substitute information, in three counts, with the following offenses: (1) possession of a narcotic substance with intent to sell or dispense by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b);1 (2) transportation of a narcotic substance [569]*569with intent to sell or dispense by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b); (3) conspiracy to possess or transport a narcotic substance with intent to sell or dispense, in violation of General Statutes §§ 53a-48 and 21a-277.2 After a jury trial, she was convicted on only the third count. She raises the following claims in this appeal: (1) the trial court did not instruct the jury on the elements of the substantive offenses when giving instructions on the conspiracy charge; (2) the wording of the conspiracy charge failed to advise her adequately of the nature and cause of the accusations against her; (3) remarks by the state’s attorney during closing argument deprived her of a fair trial; (4) the court should [570]*570not have admitted evidence of a sum of money found in the defendant’s purse; (5) the third count of the substitute information was fatally defective because it charged three offenses in the disjunctive;3 and (6) the trial court should not have denied her motion to correct sentence.

The jury could have reasonably found the following facts, among others. The state’s attorney’s office and the Stratford police department established a surveillance at the Howard Johnson’s Motor Lodge in Stratford, on the basis of information received through a wiretap. At approximately 8 p.m. on July 24, 1987, a white vehicle containing four occupants entered the parking lot. Two females, the defendant and her daughter, exited the vehicle and were arrested. The daughter was carrying a satchel on her shoulder that contained approximately $900,000 worth of cocaine. The defendant had $31,480 in her purse.

I

The defendant claims that the trial court failed to instruct the jury on the elements of the offense alleged in the third count. At trial, she objected to the court’s charge on the third count, stating that although the court had instructed on the elements of conspiracy, the court did not elaborate upon the elements of the substantive offense alleged in that count, viz., a violation of General Statutes § 21a-277 (a).

We review claims regarding the court’s charge to the jury according to certain well established principles. Jury instructions must be read as a whole. State v. Rouleau, 204 Conn. 240, 252, 528 A.2d 343 (1987). We review “ ‘the substance of the charge rather than the form of what was said . . . .’ ” State v. Silano, 204 [571]*571Conn. 769, 776, 529 A.2d 1283 (1987). The charge must be considered from the standpoint of its probable effect on the jury in guiding them to a proper verdict. State v. McCalpine, 190 Conn. 822, 830, 463 A.2d 545 (1983). It must fairly present the case to the jury so that no injustice is done. State v. Storlazzi, 191 Conn. 453, 466, 464 A.2d 829 (1983). It need not be exhaustive, perfect or technically accurate. State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982).

The record reveals that although the court gave detailed instructions on the elements of conspiracy and on the elements of the violations of § 21a-278 (b) alleged in the first two counts, it did not instruct the jury on the elements of a violation of General Statutes § 21a-277 (a). In its instruction on the third count, however, the court stated that the underlying crime, which was the object of the conspiracy alleged in the third count, was “the possession and distribution of cocaine.”

Section 21a-278 (b) and 21a-277 (a) both proscribe the activities of possessing or transporting narcotics with intent to sell. The only significant difference between the two statutes, for purposes of this case, is that “unlike § 21a-278 (b), drug dependency is neither an exemption nor an element of § 21a-277 (a).” State v. Luca, 19 Conn. App. 668, 673, 563 A.2d 752 (1989).

The court’s instructions could have misled the jury to believe that it could not convict her of the charge alleged in the third count unless it found beyond a reasonable doubt that she was not drug-dependent. If the jury was confused in this manner, that confusion could have only benefitted the defendant by making her conviction on the third count less likely. We conclude that although the court’s instruction possibly misled the jury, the inaccuracy in the instruction had no effect on the ultimate verdict of guilty.

[572]*572The charge was favorable to the defendant and is therefore not a justifiable basis of complaint by her. State v. Cochran, 191 Conn. 180, 188, 463 A.2d 618 (1983).

II

Two of the defendant’s claims will be considered together because they are closely related. First, the defendant claims that the third count of the substitute information failed to apprise her adequately of the nature and cause of the accusations against her.4 The third count refers to General Statutes § 21a-277, but does not refer to a specific subsection of that statute. The defendant did not request a bill of particulars. “Under our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.” State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); see Practice Book §§ 830-833; State v. Davis, 141 Conn. 319, 320-21, 106 A.2d 159 (1954).

The defendant claims that Practice Book §§ 831 and 832 are unconstitutional in that they place the burden of requesting a more definite statement of the charges [573]*573upon the defendant.5 Prior to 1965, the Connecticut constitution provided that “[i]n all criminal prosecutions, the accused shall have a right ... to demand the nature and cause of the accusation.” Const, of 1818, art. I, § 9. The defendant contends that the rule of State v. Davis, supra, placing the burden of requesting a bill of particulars on the defendant, made sense under the constitution in effect at that time because the former article first, § 9, gave the defendant only a right “to demand” such a bill. At present, the constitution provides that “[i]n all criminal prosecutions, the accused shall have a right ... tobe informed

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Related

State v. Garcia
949 A.2d 499 (Connecticut Appellate Court, 2008)
State v. Mitchell
655 A.2d 282 (Connecticut Appellate Court, 1995)
State v. Bowens
591 A.2d 433 (Connecticut Appellate Court, 1991)
State v. Monar
582 A.2d 206 (Supreme Court of Connecticut, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
579 A.2d 104, 22 Conn. App. 567, 1990 Conn. App. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-monar-connappct-1990.