State v. West

491 A.2d 428, 3 Conn. App. 650, 1985 Conn. App. LEXIS 923
CourtConnecticut Appellate Court
DecidedApril 30, 1985
Docket2700
StatusPublished
Cited by11 cases

This text of 491 A.2d 428 (State v. West) 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. West, 491 A.2d 428, 3 Conn. App. 650, 1985 Conn. App. LEXIS 923 (Colo. Ct. App. 1985).

Opinion

Daly, J.

The plaintiff has appealed1 from his conviction of sexual assault in the first degree,2 challenging the second substitute information and the instructions to the jury.

The jury could readily have found the following facts: About 7:50 a.m. on November 20, 1979, while awaiting a bus at the corner of Blue Hills Avenue and Plain-field Street in Hartford, the complainant was forced into the defendant’s car and driven to a remote section of Keney Park where she was sexually assaulted, struck in the face with the defendant’s fist and robbed. Although the complainant never actually saw a weapon displayed, she believed that her attacker possessed a knife or gun. When the police brought the defendant to Mount Sinai Hospital, where the complainant was being treated, she identified him as her assailant.

[652]*652The first count of the original, substitute and second substitute informations all contained essentially the same language: “[T]he said [defendant] did compel another person to engage in sexual intercourse by the use of force or the threat of use of force against such other person which reasonably caused such person to fear physical injury to such person .... ” On May 2, 1980, the defendant objected to the substitute information on the ground that it charged the offense in the alternative, and that he had been assured that the state would make an election before the case started. On May 6,1980, the state filed a second substitute information which charged in the conjunctive. After the court heard argument from both counsel, the state, in open court, converted the information from the conjunctive to the disjunctive by substituting the word “or” for “and.”3 The defendant promptly objected.

The issues raised by the defendant are (1) whether the trial court erred by permitting the state to accuse the defendant of the crime of sexual assault in the first degree by disjunctively charging alternative theories of liability within a single count of the information, and (2) whether the trial court deprived the defendant of his state and federal constitutional right to a jury trial by failing to instruct the jury concerning the scope of its responsibility to render a unanimous verdict following deliberation upon several alternatively stated elements of an offense within a single count of the information.

[653]*653The defendant claims that he was never properly charged with the offense of sexual assault in the first degree because the information, in charging in the alternative, was fatally defective. In support of his claim, the defendant relies on the following principle: “An information which charges the commission of two or more offenses in the alternative is fatally defective for the reason that it does not definitely apprise the accused of the specific charge against him. Though the statute makes criminal the commission of several acts stated disjunctively, the information must charge in the conjunctive since otherwise it would be uncertain which of two or more accusations was intended. . . . Such has always been the rule in this jurisdiction. ‘In an indictment or information, the offense may not be laid in the alternative. The accused has a right to know, before trial, the exact single offense for which he is to be tried. He may not be tried for one act, or another, or another, at the pleasure of the prosecutor, unless there be as many distinct counts in the information.’ Smith v. State, 19 Conn. 493, 500 [1849].” Grasso v. Frattolillo, 111 Conn. 209, 212-13, 149 A. 838 (1930); see also State v. Sumner, 178 Conn. 163,166, 422 A.2d 299 (1979); State v. Cofone, 164 Conn. 162, 167, 319 A.2d 381 (1972); State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963).

It is important to note that the defendant specifically disclaims any reliance on the argument that the disjunctively phrased information deprived him of his sixth amendment right to practical notice of the charges against him. His sole claim in this regard is that the use of the word “or,” rather than “and,” rendered the information so fatally defective that it did not charge him with any criminal offense at all. We disagree.

The aforesaid cases stress notification to the defendant. The defendant here is not claiming lack of notice and, additionally, the record reflects that the state’s [654]*654attorney indicated orally that he was going to proceed in the conjunctive. Moreover, an information which charges the commission of two or more offenses in the alternative, although improperly drafted, maybe remedied by a bill of particulars which sets out the charges in the conjunctive. State v. Eason, 192 Conn. 37, 40, 470 A.2d 688 (1984). Thus, it cannot be viewed as not charging any criminal offense at all; rather, its vice is that it charges too much, depriving the defendant of his right to adequate notice of the charges against him.

The defendant also claims error in the trial court’s failure to instruct the jury to require that its verdict be unanimous when considering several alternatively stated elements of an offense within a single count of the information (a conceptual difference between “the use of force or the threat of use of force”). The defendant did not request that the trial court give the instruction he now claims was reversible error not to give. Nor did the defendant enter an objection and exception to the instructions given.

“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 review 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).

“The defendant’s challenge to the disjunctive jury instruction raises state and federal constitutional questions relative to the state’s burden of proof beyond a reasonable doubt and the defendant’s right to a unanimous verdict. These matters go directly to the integ[655]*655rity of the fact finding process, and the defendant’s failure to object at trial should not preclude him from raising them on appeal.” State v. Baldwin, 101 Wis. 2d 441, 446, 304 N.W.2d 742 (1981).

In State v. Jones, 193 Conn. 70, 75, 475 A.2d 1087 (1984), “[t]he indictment charged, in the language of the felony murder statute, that the defendant ‘did commit or attempt to commit a robbery

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Bluebook (online)
491 A.2d 428, 3 Conn. App. 650, 1985 Conn. App. LEXIS 923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-west-connappct-1985.