State v. Stephenson, 131 Conn. App. 510

Background

Defendant Stephenson is convicted after a jury trial of robbery in the third degree and two counts of larceny in the fifth degree stemming from August 23, 2006 at Macy's in Stamford.
Store detective Sinclair observed Stephenson with a shopping bag, selecting items, acting nervous, and placing items in the bag over approximately 45 minutes.
Security staff and Sinclair confronted Stephenson outside; a struggle occurred and one handcuff was applied; police ultimately took him into custody.
Six Macy's items valued at $356.49 and three LensCrafters eyeglasses valued about $600 were recovered; LensCrafters manager identified the glasses as theirs and noted Stephenson had been in the LensCrafters earlier that day.
Amended information initially charged robbery in the second degree; after the defense motion, the State amended to robbery in the third degree and two counts of larceny; the court instructed on the third-degree charge.
Defendant argues on appeal that (a) the court erred by not instructing robbery in the third degree as a lesser included offense of robbery in the second degree, (b) the evidence is insufficient for third-degree robbery, (c) the videotape authenticity instruction was inadequate, (d) the state deprived him by disposing of evidence central to defense, and (e) the trial court improperly precluded testimony that police coaxed a witness to lie; the court affirms.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court correctly instructed on robbery third degree	Stephenson contends robbery third degree was a lesser included offense of robbery second degree.	Stephenson argues improper omission of allowed lesser-included instruction.	No error; court did not present third-degree as lesser included offense.
Sufficiency of the evidence for robbery third degree	State contends force was used during the larceny.	Stephenson argues no force was used.	Evidence sufficient; jury could find force in the course of taking and retention.
Failure to require authenticating videotape before consideration	State maintained authenticity of videotape; jury credibility determinations apply.	Court should have instructed that tape be true, accurate, authentic as a condition to consideration.	No reversible error; authenticity determination left to jury; correct charge given in context.
Due process in disposing of evidence central to defense	State’s return of merchandise violated due process because it deprived defense of material evidence.	Davis framework and state constitution require preservation of evidence; value exceeded $250 but still violated.	No due process violation; Davis applied and balancing factors show no prejudice.
Preclusion of testimony that officers coaxed Sinclair to lie	Defense sought to prove police coerced witnesses to lie to impeach related testimony.	Testimony relevant to credibility of LensCrafters witness should have been admitted.	Court did not abuse discretion in excluding; insufficient foundation to show police coaxing related to LensCrafters.

Key Cases Cited

State v. Cutler, 293 Conn. 303, 977 A.2d 209 (Conn. 2009) (propriety of nonconstitutional jury instruction review; not required to tailor to exact request)
State v. Dash, 242 Conn. 143, 698 A.2d 297 (Conn. 1997) (nonconstitutional credibility instruction review standard)
State v. Stevenson, 53 Conn.App. 551, 733 A.2d 253 (Conn. App. 1999) (authentication/credibility considerations in evidence rulings)
State v. Serrano, 123 Conn.App. 530, 1 A.3d 1277 (Conn. App. 2010) (procedure for evaluating potential instructional error in credibility)
State v. John L., 85 Conn.App. 291, 856 A.2d 1032 (Conn. App. 2004) (foundation and role of authentication under § 9-1(a))
State v. Davis, 10 Conn.App. 130, 521 A.2d 1051 (Conn. App. 1987) (return of property; due process considerations when value low)
State v. Morales, 232 Conn. 707, 657 A.2d 585 (Conn. 1995) (state constitutional due process balancing for preserved evidence)
State v. Asherman, 193 Conn. 695, 478 A.2d 227 (Conn. 1984) (Asherman balancing factors for missing evidence)
State v. Thomspon, 128 Conn.App. 296, 17 A.3d 488 (Conn. App. 2011) (Asherman balancing factors applied to missing evidence)
State v. Cecil J., 291 Conn. 813, 970 A.2d 710 (Conn. 2009) (evidentiary admissibility; trial court's discretion)