State v. Berger

BERDON, J.,

dissenting. The majority tacitly concedes that there was insufficient evidence to justify instructing the jury that the defendant, Ruben Berger, had exclusive possession of the apartment where narcotics were found. Nevertheless, my colleagues hold that this error was harmless, because there was sufficient evidence to justify instructing the jury on an alternative theory of criminal liability. This reasoning cannot withstand scrutiny. The essential problem that inheres in the majority opinion is that we will never know whether the jury convicted the defendant based on nothing more than the theory that he had exclusive possession of the apartment.

“An instruction on a statutory alternative that is not supported by the evidence violates a defendant’s fundamental right, protected by the due process clause of article first, § 8, of the Connecticut constitution, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. State v. Williams, [202 Conn. 349, 363, 521 A.2d 150 (1987)]; see also State v. Rodriguez, 223 Conn. 127, 147, 613 A.2d 211 (1992); State v. Allen, 216 Conn. 367, 388-89, 579 A.2d 1066 (1990); State v. John, 210 Conn. 652, 688, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Arnold, 201 Conn. 276, 281-82, 514 A.2d 330 (1986); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). A similar principle applies when the trial court instructs the jury that it may convict a defendant on the basis of a statutory alternative for which there is no evidence. Accordingly, it is firmly entrenched in the common law of this state that [t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a *241finding. State v. Williams, supra, 364; Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). [I]f a claim is made against the evidence in the case, and wholly unsupported by proof, it is error to submit it to the jury as if the evidence justified the claim, and without comment, as there is great danger of its leading to an unjust verdict. Lewis v. Phoenix Mutual Life Ins. Co., 44 Conn. 72, 88 (1876); see also Allen v. Rundle, 50 Conn. 9, 33, 47 A. 599 (1882); Hartford v. Champion, 58 Conn. 268, 276, 20 A. 471 (1890); McGarry v. Healey, 78 Conn. 365, 367, 62 A. 671 (1905); Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250 (1933) . . . Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979).

“The principle of not submitting to the jury any issue for which there is insufficient evidence has roots in our early common law. Justice Swift, writing in 1822, shortly after the adoption of the state constitution in 1818, noted that the jury in its deliberations must find expressly all the facts put in issue, or must negate them all. 2 Z. Swift, Digest of the Laws of the State of Connecticut (1823) p. 774. Similarly, Justice Swift recognized the court’s power to direct the jury to say, in their verdict, on which count they find the defendant guilty, and to find him not guilty on the rest, so that if he should be found guilty on an insufficient count, he might take advantage of it by motion in arrest. Id., p. 383. Also imbedded in our common law is the notion that the judge has the power to defend the innocent against an unjust verdict. . . . Id., p. 413. Implicit in the power to set aside a verdict that has no support in the evidence, is the idea that the court should not submit to the jury, in the first instance, an issue that has no support in the evidence. By doing so, the court invites an unjust verdict. . . . [State v. Chapman, 227 Conn. 616, 627-29, 632 A.2d 674 (1993), superseded by State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994).]” (Internal quotation marks omitted.) State v. Chapman, supra, *242229 Conn. 549-50 (Berdon, J., with whom Katz, J., joined, dissenting).

Accordingly, I dissent.