Opinion
(SC 15947)
Argued March 23, 1999
Officially released November 30, 1999
Substitute information charging the defendant with the crimes of burglary in the first degree, burglary in the second degree, sexual assault in the first degree, unlawful restraint in the first degree and robbery in the third degree, brought to the Superior Court in the judicial district of New Haven and tried to the jury before Ripley, J.; verdict and judgment of guilty of burglary in the first degree, burglary in the second degree, sexual assault in the first degree and unlawful restraint in the first degree, from which the defendant appealed to the Appellate Court, O'Connell, Spear and Freedman, Js., which reversed the trial court's judgment and remanded the case for a new trial, and the state, on the granting of certification, appealed to this court, which reversed the Appellate Court's judgment and remanded the case to that court for consideration of the defendant's remaining claims raised on appeal; on remand, the Appellate Court, O'Connell, C.J., and Spear and Freedman, Js., reversed the trial court's judgment of conviction of burglary in the second degree only and remanded the case to the trial court with direction to render judgment of not guilty on that count only, and the defendant, on the granting of certification, appealed to this court. Affirmed.
Richard Emanuel, special public defender, for the appellant (defendant).
Marjorie Allen Dauster, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Timothy J. Sugrue, executive assistant state's attorney, John Waddock, senior assistant state's attorney, and Susann E. Gill, assistant state's attorney, for the appellee (state).
Opinion
The defendant, Charles Coleman, was convicted, after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a)(2), burglary in the second degree in violation of General Statutes § 53a-102 (a), sexual assault in the first degree in violation of General Statutes (Rev. to 1985) § 53a-70 (a), and unlawful restraint in the first degree in violation of General Statutes (Rev. to 1985) § 53a-95. The Appellate Court originally reversed the judgment of conviction for what it perceived to be an evidentiary error by the trial court; State v. Coleman, 42 Conn. App. 78, 80, 679 A.2d 950 (1996); and, on a certified appeal from that judgment, we reversed the judgment of the Appellate Court and remanded the case to that court for consideration of the defendant's remaining claims. State v. Coleman, 241 Conn. 784, 792, 699 A.2d 91 (1997).
Following our remand, the Appellate Court reversed the trial court's judgment only as to the conviction of burglary in the second degree, and affirmed the judgment in all other respects. State v. Coleman, 48 Conn. App. 260, 274, 709 A.2d 590 (1998). We then granted the defendant's certification to appeal from the judgment of the Appellate Court, limited to the following two issues: "1. Should this court review the defendant's challenge to the trial court's instructions that `the law is made to protect society and innocent persons, and not to protect guilty ones?'" and "2. If the answer to the first question is yes, did the instructions violate the defendant's federal or state constitutional rights to have the jury adequately instructed regarding the presumption of innocence and the concept of reasonable doubt?" State v. Coleman, 245 Conn. 907, 718 A.2d 15 (1998). This certified appeal followed.
This case is controlled by our recently issued decision in State v. Schiappa, 248 Conn. 132, 167-77, 728 A.2d 466 (1999). In that case, we considered and rejected claims essentially identical to those presented by the certified questions in the present appeal.
I would reverse the conviction of the defendant, Charles Coleman, on the ground that the trial court's jury instruction — "the law is made to protect society and innocent persons, and not to protect guilty ones" — was unconstitutional. As I explain in my dissent in State v. Watson, 251 Conn. 239, 244-49, 740 A.2d 832 (1999), this court's decision in State v. Schiappa, 248 Conn. 132, 728 A.2d 466 (1999), was wrongly decided. Instead, this court should be guided by the reasoning set forth in the Second Circuit Court of Appeals' decision in United States v. Doyle, 130 F.3d 532, 539 (2d Cir. 1997), and should hold that the challenged language of the jury instruction in this case "created a reasonable likelihood that the jury misunderstood the reasonable doubt standard and the presumption of innocence."
I was not assigned to sit on the panel for Schiappa, which was decided by a full court of seven justices (a senior justice was selected to complete the panel of seven). Nor was I assigned to the panel of five justices that decided State v. Delvalle, 250 Conn. 466, 736 A.2d 125 (1999).
Accordingly, I dissent.