State v. Moran

731 A.2d 758, 53 Conn. App. 406, 1999 Conn. App. LEXIS 203
CourtConnecticut Appellate Court
DecidedMay 25, 1999
DocketAC 17308
StatusPublished
Cited by5 cases

This text of 731 A.2d 758 (State v. Moran) 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. Moran, 731 A.2d 758, 53 Conn. App. 406, 1999 Conn. App. LEXIS 203 (Colo. Ct. App. 1999).

Opinion

Opinion

DALY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that the trial court improperly (1) instructed the jury that the defendant was required to prove his assertions by a fair preponderance of the evidence and (2) allowed rebuttal testimony that impeached the defendant on a collateral matter.

The juiy reasonably could have found the following facts. On July 17,1996, at about 9:30 p.m., Sundeep Gill, age sixteen, was working as a cashier at a gasoline station and convenience store operated by her parents and located at the comer of Boston and Noble Avenues in Bridgeport. Her sister, Navdeep Gill, age fourteen, was with her in the store and their mother was in the rear of the store. Her father was across the street at a similar establishment also owned by her parents.

Sundeep was standing in an enclosed cashier’s booth, which had a three foot square opening with a sliding window to serve the customers. Ramesh Gangareddi, a family friend, was with her. Navdeep was standing near the dairy case and saw the defendant enter the store. As Sundeep was preparing to close the cash register, she also saw the defendant enter the store. Her back was to the defendant, when she heard him say, “Give me the money. Give me everything you have.” When she turned around, she saw a knife in his hand.

Sundeep was unable to open the register and the defendant vaulted over the counter in front of the window, pulled the register out of the booth and ran to a [408]*408waiting car. Navdeep ran to her mother in the rear of the store while Sundeep called the police. The total elapsed time was between four and six minutes. Nav-deep described the robber as being a white male, between five feet, ten inches and six feet tall with shoulder length, curly, dirty hair, big eyes and facial stubble. He was wearing a navy blue T-shirt with short sleeves and dark jeans. Two days later, both sisters went to the police station and independently selected the defendant’s photograph. Officer Ferdinand Ferrao arrested the defendant on August 2,1996, after viewing a wanted poster. The defendant’s appearance was the same as in the photograph selected by both sisters. At trial, Sundeep made an in-court identification of the defendant.

The defendant testified that he resided less than a block away from the scene and, when arrested, had not changed his appearance. He maintained that he was at home with his mother on the evening in question and testified that he remembered his whereabouts because it was the night that TWA flight 800 crashed and he had discussed the event with his mother. The defendant appeared clean shaven with short hair and wore a suit at the time of trial. He indicated that his hair was cut while incarcerated and that he shaved his mustache because he was not permitted to have scissors to groom it and, therefore, “you don’t really have a choice but to shave.” The defendant denied altering his appearance to obfuscate the in-court identification. On cross-examination, the defendant admitted that there was no rule concerning hair length at the Bridgeport Correctional Center (center). The state called Captain Charles Shephard of the correctional center who testified in rebuttal, over objection, that there was no rule requiring an inmate to get a haircut prior to trial.

I

The defendant claims that the trial court’s instruction on the defendant’s burden of proof was improper. The [409]*409defendant failed to take exception to the charge at trial and seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, our Supreme Court held “that a defendant can prevail on a claim of constitutional error not preserved at trial 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. In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 239-40.

We conclude that the record is adequate for review of the defendant’s claim. Because “the failure to instruct the jury adequately with regard to an essential element of the crime may result in a due process violation implicating the fairness of the trial”; State v. Jackson, 34 Conn. App. 599, 605-606, 642 A.2d 738, cert. granted [on other grounds], 231 Conn. 917, 648 A.2d 165 (1994) (appeal withdrawn October 18,1994); we conclude that the issue is one of constitutional magnitude implicating a fundamental right.

We now examine whether the alleged violation clearly exists and clearly deprived the defendant of a fair trial. We note that, “under the third prong of Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. . . . State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991). . . . State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). Our Supreme Court has further held that [a] jury instruction is constitutionally adequate if it provides the jurors with a clear under[410]*410standing of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Citations omitted; internal quotation marks omitted.) State v. Jackson, supra, 34 Conn. App. 606.

“In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” (Citations omitted; internal quotation marks omitted.) State v. Ash, 231 Conn. 484, 493-94, 651 A.2d 247 (1994).

In State v. Mullings, 202 Conn. 1, 13, 519 A.2d 58 (1987), and in the present case, the primary issue before the jury involved the identity of the robber, the defendant having offered an alibi defense.

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Related

State v. Gonzalez
864 A.2d 847 (Supreme Court of Connecticut, 2005)
State v. Dudley
791 A.2d 661 (Connecticut Appellate Court, 2002)
State v. Hall
786 A.2d 466 (Connecticut Appellate Court, 2001)
State v. Moran
733 A.2d 849 (Supreme Court of Connecticut, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
731 A.2d 758, 53 Conn. App. 406, 1999 Conn. App. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moran-connappct-1999.