State v. Pieger

O’CONNELL, J.,

concurring in part and dissenting in part.

I

I agree with the majority’s analysis of the corpus delicti rule, but I feel that we should not reach that issue because the defendant improperly used a motion for judgment of acquittal in lieu of a proper evidentiary objection.

The corpus delicti doctrine is a rule of evidence utilized to determine the admissibility of a confession. 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 111b (1). If a sufficient foundation has not been established under the applicable Tillman or Harris decisions, a defendant’s confession is not admissible into evidence. State v. Harris, 215 Conn. 189, 194-95, 575 A.2d 223 (1990); State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964). If a defendant does not object to the admission of a confession it becomes part of the evidence and may be considered by the trial court. See In re Jose M., 30 Conn. App. 381, 390, 620 A.2d 804 (1993).

In the present case, the defendant did not object to the confession’s coming into evidence. Instead, he waited until the close of the state’s case-in-chief when he moved for a judgment of a acquittal. Practice Book §§ 883, 884. Section 883 mandates that “the judicial *470authority shall order the entry of a judgment of acquittal as to any . . . offense charged . . . for which the evidence would not reasonably permit a finding of guilty.” The trial court must base its ruling on the motion for judgment of acquittal on all the evidence that has come into the case up to that point. At that point, it is too late for the defendant to argue that if some of the evidence had not been admitted, the evidence would not have reasonably permitted a guilty finding.

The majority’s analysis would allow a defendant to fail to object to any evidence and then at the conclusion of the state’s case ask the court to review the state’s entire case and to disregard any evidence that, if he had made timely objection, would not have been admitted. This is clearly an improper use of a motion for judgment of acquittal. It may not be used as a substitute for a timely objection. At the time the motion was made, the defendant’s confession was in the case and the trial court was required to consider it.

II

I do not agree with the majority that the trial court properly ordered the defendant to make a $2500 donation to New Britain Hospital.1 Because such a donation is not authorized by statute, the trial court lacked jurisdiction to impose such an order. The donation to New Britain Hospital should therefore be vacated as an illegal portion of the sentence. Practice Book § 935; State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306 (1988).

The penalties for the crime for which the defendant was convicted include a fine of not more than $5000, imprisonment of not less than one year nor more than five years, or both a fine and imprisonment. General *471Statutes § 14-224 (f). In accordance with the statute, the trial court imposed a term of imprisonment of five years, suspended after eighteen months with five years probation. The trial court did not impose a monetary fine but instead ordered the defendant to make a $2500 “charitable donation” to New Britain Hospital. It is readily apparent that a charitable donation is not one of the legislatively sanctioned penalties.

In addition to the statutory penalties for evading responsibility, General Statutes § 53a-30 (a) provides that in any case in which the court imposes a sentence of probation, the court may impose any of twelve conditions of probation. Nothing in this compendium of conditions includes a charitable donation.

The majority finds jurisdiction for the charitable donation in subdivision (12), which allows “any other conditions reasonably related to [the defendant’s] rehabilitation.” I am not persuaded that ordering the defendant to pay $2500 to New Britain Hospital under the guise of a charitable donation is reasonably related to his rehabilitation.

The majority concludes that the defendant will be rehabilitated if he is required to make a financial contribution out of his own pocket. I agree with this principle, but submit that this beneficial purpose can be achieved within statutory bounds by the imposition of a fine. I am not persuaded that payment of $2500 to New Britain Hospital will have a more rehabilitative effect than payment of a like sum into the coffers of the state.

This court must construe the statute as it finds it without reference to whether we feel that the law might have been improved by the inclusion of other provisions. Houston v. Warden, 169 Conn. 247, 252, 363 A.2d 121 (1975). If a charitable contribution is to become an authorized disposition in a criminal prosecution it must be added by the legislature and not by the courts.

*472For these reasons, I respectfully dissent from the majority decision on this issue only.

I distinguish this case from the situation in which a defendant enters into a voluntary plea agreement that includes a charitable contribution. I reserve my comments on voluntary contributions for a case in which that issue is presented to us.