State of Connecticut v. Ruben Reyes, 19 Conn. App. 695

O’Connell, J. The defendant appeals from a judgment of conviction, after a jury trial, of two counts of the crime of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4). He claims that the trial court erred (1) in removing him from the courtroom during his trial, and (2) in its instructions to the jury. We find no error.

The jury could reasonably have found that on June 23,1985, at approximately 11:30 p.m., the defendant, carrying a sawed-off shotgun, entered a cafe in Hartford with an unarmed man and announced, “This is a robbery.” The defendant pointed the gun at Gloria Echevarria, who was sitting behind the bar, and told her to open the cash register. She complied and the unarmed man removed approximately $325 from the cash register. At that point the defendant grabbed the bartender who was emerging from the rear of the cafe and pointed the gun at his neck.

He then pushed the bartender against the bar and took approximately $180 from his pockets and wallet. Both robbers then fled and the bartender called the police who later arrested the defendant. The defendant first claims that the trial court erred in removing him from the courtroom during argument on the state’s objection to a question posed to him on direct examination by defense counsel.

The defendant had taken the witness stand on his own behalf when defense counsel inquired, “And, to your knowledge, what is the community right where the Friendship Cafe is, if you know?” The state objected to the question on relevancy grounds and the court excused the jury. Before defense counsel could respond to the objection, the state’s attorney sought removal of the defendant, in order to prevent him from tailoring his testimony to the argument.

Over defense counsel's objection and exception, the court agreed, ordering the defendant to leave the courtroom, justifying the expulsion on the ground that no testimony was to be taken during his absence. The defendant claims that the trial court violated his right to be present at his trial pursuant to the sixth and fourteenth amendments to the United States constitution and

article first, § 8, of the Connecticut constitution. He also argues that the court violated Practice Book §§ 967 and 968. By contrast, the state argues that neither the state constitution nor the federal constitution mandates that the defendant be present, where, as here, a legal question concerning the admissibility of testimony was discussed. It is well established that a case will not be decided on constitutional grounds if there is some other ground on which it can be decided. State v. Williams, 200 Conn. 310, 322, 511 A.2d 1000 (1986).

While both our Supreme Court and this court have addressed the defendant’s right to be present at his trial under the federal constitution no case has been found that addresses this right in relation to our rules of practice. Because those rules furnish an adequate basis for determining the issue before us, we will address it accordingly. Three rules of practice are pertinent to the defendant’s claim.

Practice Book § 967 provides that a “defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing . . . . ” (Emphasis added.) Practice Book § 968 reinforces the defendant’s right to be present by stating that he “must be present at the trial” (emphasis added) unless the trial court finds that he is represented by counsel and that he has waived his right to be present.

Finally, Practice Book § 970 (3) provides that the “defendant need not be present . . . [a]t any argument on a question of law or at any conference . . . .” (Emphasis added.) Although we are determining this issue on rules of practice grounds, an examination of cases discussing the constitutional right to presence at trial is helpful. Our Supreme Court has held that “[a] criminal defendant has a constitutional right to be present at all critical stages of his trial.” State v. Simino, 200 Conn. 113, 125, 509 A.2d 1039 (1986); Rushen v. Spain, 464 U.S. 114, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983); see Illinois v.

Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). When a situation arises in which the defendant is not present during some portion of his trial, the reviewing court must determine whether he was absent during a critical stage and whether he effectively waived his right to be present by his unexcused absence. State v. Simino, supra, 126. The latter question need not be addressed here because both parties agree that the defendant did not waive his right. Relying on State v. Simino, supra, 128, and State v.

Olds, 171 Conn. 395, 405-406, 370 A.2d 969 (1976), the state asserts that a defendant has no absolute right to be present during discussions of law. Our reading of those cases, however, indicates that such a right would arise if it is determined that his presence bears a reasonably substantial relation to his opportunity to defend. State v. Olds, supra, 406; see Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S. Ct. 330, 78 L. Ed. 674 (1934).

In upholding the trial court’s denial of the defendant’s request to be present, the court, in Olds, examined the record and held that the discussion of law at issue involved pretrial motions, such as motions for production, to quash, to reduce bond and for a jury of twelve and that “there would have been no ‘advantage’ to having the defendant present . . . .” State v. Olds, supra. The right to be present during a discussion of law after the trial has commenced, however, arose in State v. Simino, supra.

In Simino, the court held that the defendant’s presence was constitutionally mandated when the court was charging the jury because during that time the “ ‘court is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts. . . .’ ” Id., 128, quoting People v. Ciaccio, 47 N.Y.2d 431, 436, 391 N.E.2d 1347, 418 N.Y.S.2d 371 (1979).

Despite the holding that the defendant had a right to be present during the jury charge, the Simino court concluded that the defendant had waived that right by failing to attend court that day, through no fault of the state. State v. Simino, supra. In the present case, during the enforced absence of the defendant, the trial court sustained the state’s objection to defense counsel’s question to the defendant.

It stated that it had previously prohibited him from inquiring into the existence of high crime and drug trafficking in and around the cafe through earlier witnesses he had subpoenaed because such evidence was irrelevant to the case. The court added that defense counsel had failed to interview those witnesses prior to their taking the stand despite the fact that they had been waiting at the courthouse to testify for approximately two days.

Consequently, he did not know how those witnesses would respond to his questions and the court would not now permit him to elicit the desired but still irrelevant answers from the defendant. Defense counsel did not respond to those remarks. On the basis of the foregoing, we conclude that the defendant’s enforced absence bore a reasonably substantial relation to his opportunity to defend himself because he was precluded from hearing the court’s remarks reflecting upon his counsel’s preparation of his case.

Because we interpret Practice Book §§ 967 and 968 as implementing the defendant’s constitutional right to be present at trial under the circumstances of the present case, we conclude that the trial court’s order evicting him from the courtroom violated his right to be present at the trial pursuant to Practice Book § 967.

Although the language in Practice Book § 970 (3) appears to grant the trial court discretion in removing the defendant during questions of law, the facts here clearly demonstrate that a court acts at its peril when it elects to do so during the trial, as opposed to during arguments of pretrial motions. The defendant urges us to adopt a per se rule of error in any case in which a defendant is ordered to leave the courtroom during the trial, except for reasons of misconduct as provided in Practice Book §§ 891 and 892.

Because we strongly favor the defendant’s presence at all times during the trial, the establishment of a per se rule is appealing. On the other hand, because we can envision a situation involving a purely technical violation, we conclude that the better course is a case-by-case analysis, determining harm in the light of the circumstances of each case. Here, the colloquy that occurred in the defendant’s absence involved the state’s objection to a proposed question which the court sustained on relevancy grounds. The defendant does not challenge that ruling on appeal.

Rather, the defendant claims that his absence was harmful because he was precluded from learning of and investigating the court’s remarks concerning his counsel’s preparation of his defense. An inquiry into this type of claim is more suited to a habeas corpus proceeding and would therefore be inappropriate in this appeal. State v. Williamson, 206 Conn. 685, 706-707, 539 A.2d 561 (1988). Hence, we conclude that the trial court’s error was harmless. The defendant’s remaining claims challenge the court’s charge to the jury.

He argues (1) that there was insufficient evidence to warrant the court’s instruction on subsection (2) of the definition of robbery found in General Statutes § 53a-133, (2), in the alternative, that the court failed to instruct the jury that they all had to agree on which subsection of § 53a-133 the defendant violated, (3) that there was insufficient evidence to warrant the court’s instruction on two statutory alternatives found in the definition of larceny as set forth in General Statutes § 53a-118, and (4) that the portion of the court’s instruction concerning the taking of money from the cash register was confusing and erroneous.

The defendant concedes that none of these claims of error was raised at trial and asks this court to review them under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In defining the crime of robbery, the court read General Statutes § 53a-133, which provides in pertinent part: “A person commits robbery when ... he uses or threatens the immediate use of physical force upon another person for the purpose of:

(1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” The court then referred to the evidence detailing the taking of money from the cash register to demonstrate how either subsection may apply. Shortly thereafter, it mentioned the robbery of the bartender in order to remind the jury that the case involved two separate robbery charges.

At the outset, we note that the defendant’s first two challenges to the court’s charge are directed solely to the robbery of the bartender. Turning to his first claim, he argues that the court erred in instructing the jury on the second subsection of § 53a-133 because there was no evidence that the bartender was compelled “to deliver up” his wallet and the cash. Therefore, he claims that the judgment of conviction on that count must be set aside and a new trial must be ordered.

Because a defendant has a constitutional right to be acquitted unless proven guilty of each element of a charged offense beyond a reasonable doubt, we will review this claim under State v. Evans, supra. State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987); State v. Messier, 16 Conn. App. 455, 469, 549 A.2d 270 (1988); State v. Webb, 8 Conn.

App. 620, 625, 514 A.2d 345 (1986). “ ‘[Wjhere a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ ” State v. Williams, supra, quoting State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983).

Both parties agree that the evidence depicted the defendant placing a shotgun to the bartender’s neck, turning him around and ordering him to place his hands on the bar while the other individual went through the bartender’s pants pockets retrieving his wallet and cash. The state argues that the defendant takes an excessively restrictive view of the

interpretation of subsection (2). It contends that the proof necessary to support such an instruction need only demonstrate that the victim was compelled to yield control of the property. Thus, in this case the force used placed the bartender in a position where he would be compelled to make himself accessible to a taking. To support its argument, the state relies on State v. Webb, supra.

There we said that “[a] common sense analysis [of § 53a-133] illustrates that the two subsections overlap. . . . ‘[Preventing or overcoming resistance to the taking of the property’ is at least a first cousin of‘compelling the owner of such property . . . to deliver up the property.’ ” Id., 625. In Webb, we disagreed with the defendant’s argument that the court erred by instructing the jury on both subsections rather than only on subsection (2) because he was charged only with “ ‘[forcing the victim] to sign over to him her paycheck.’ ” Id.

Rather, “while we concede that [such] language ... is covered by subsection (2), that does not logically lead to a conclusion that subsection (1) is excluded.” Id. By contrast, the defendant urges us to follow State v. Williams, supra. There, the trial court also instructed the jury on both subsections. On appeal, the state conceded that the evidence supported an instruction only as to subsection (1). In finding reversible error, our Supreme Court stated, “ ‘[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.’ ” Id., 364, quoting Batick v.

Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). In light of our

interpretation of § 53a-133 in State v. Webb, supra, we are unpersuaded by the defendant’s argument and his reliance on State v. Williams, supra. There, the victim felt a “tug” on her shoulder where the strap of her pocketbook rested and immediately lost consciousness. She testified that she “did not see the person who had taken her pocketbook, but believed he had approached her from behind.” Id., 352. As the state conceded, this scenario leaves no room for any

interpretation other than that the defendant’s actions prevented or overcame the victim’s resistance to his seizure of her pocketbook and thus supported an instruction only as to subsection (1). The evidence in the present case, however, does not permit such a clear-cut analysis and we are satisfied that the trial court did not err by instructing the jury on both subsections. We now turn to the defendant’s alternate argument that the trial court erred in failing to instruct the jury that each member had to agree on which subsection of § 53a-133 the defendant violated with respect to the robbery of the bartender.

As a result, the defendant claims that his sixth amendment right to a unanimous jury verdict was violated. Although the defendant failed to take an exception to the absence of such an instruction, his claim is entitled to a limited review to determine whether his sixth amendment right was compromised. State v. Anderson, 211 Conn. 18, 33, 557 A.2d 917 (1989); State v. Evans, supra.

When a trial court charges the jury on statutory alternatives that are supported by the evidence and are conceptually distinct, it must also instruct the jury that each member must agree on which alternative the defendant committed if it renders a conviction. State v. Anderson, supra, 34. We have previously determined that the evidence in this case supported a charge on both subsections of § 53a-133. Moreover, we also stated that we interpret those subsections as “first cousins” and “almost indistinguishable.” State v. Webb, supra, 625, 626.

Because “ ‘[t]he jury should not be obliged to decide between two statutorily prohibited ways of committing the crime if the two ways are practically indistinguishable’ ”; State v. Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988), quoting Manson v. State, 101 Wis. 2d 413, 430, 304 N.W.2d 729 (1981); we conclude that subsections (1) and (2) are not conceptually distinct and therefore a unanimity charge was not required. Thus, there was no danger of a constitutional violation and the defendant’s claim is not entitled to further review. Id.; see also State v. Flynn, 14 Conn.

App. 10, 39, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). In his next claim, the defendant argues that the trial court erred by reading the entire definition of larceny from General Statutes § 53a-119. The trial court instructed the jury that larceny encompasses, inter alia, a wrongful taking, obtaining or withholding of the property of the owner.

The defendant contends that this instruction placed statutory alternatives before the jury which were not supported by the evidence because there was no proof in the record of an “obtaining” or “withholding.” We will not address this claim of error because the defendant failed to preserve it for appeal. State v. Townsend, 206 Conn. 621, 627, 539 A.2d 114 (1989). Moreover, our reading of the charge discloses that the court specifically apprised the jury that the state was alleging a “wrongful taking.” Hence, there was no danger that their verdict was based on an improper element of larceny. Id.

The defendant argues, in this final claim, that the trial court’s instruction concerning the taking of money from the cash register was confusing and erroneous. The state concedes and we agree that this issue is reviewable under State v. Evans, supra. See State v. Zayas, 195 Conn. 611, 616, 490 A.2d 68 (1985). The thrust of the defendant’s argument is that the court was inconsistent in identifying the owner of the money taken from the cash register.

As a result, the jury may not have understood the elements of the crime of robbery. “It is elementary jurisprudence that a jury charge is to be considered in its entirety and no part of it is to be critically dissected in order to find a technical inaccuracy in one portion, read in artificial isolation from the overall charge.” State v. Phillips, 17 Conn. App. 391, 394, 552 A.2d 837 (1989).

We are satisfied that the jury was aware, on the basis of the evidence, that Echevarria was an employee of the cafe and was sitting behind the bar, when the defendant forced her to open the cash register, and that Morganson, who was not present, was the owner of the cafe. The court’s reference to “[the robbery] against the Friendship Cafe” does not distort these facts or leave any element of the crime misunderstood. Having reviewed the charge from the standpoint of its effect on the jury in assisting it in reaching a proper verdict; State v. Santiago, 17 Conn.

App. 273, 279, 552 A.2d 438 (1989); we are not persuaded by the defendant’s argument. There is no error. In this opinion Daly, J., concurred. Moreover, we note that the defendant was present at trial during an earlier argument concerning the state’s objection to similar questions and, as a result, he was aware of the basis of the court’s ruling that the testimony elicited was irrelevant. A habeas corpus action alleging ineffectiveness of counsel is pending at this time.