45 Conn. App. 6 | Conn. App. Ct. | 1997
Opinion
The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General
The jury reasonably could have found the following facts. On the morning of November 21, 1994, approximately between 5:45 and 5:50 a.m., Robert Works parked his car
Works asked the defendant to take the money and to leave the train pass and wallet, but the defendant ran toward Atlantic Street with the wallet. Works called the police from his cellular phone while pursuing the defendant. Sergeant Ryan Devaney met Works within one minute. A possible suspect was questioned at 660 Atlantic Street, but Works could not identify the suspect as the robber. Devaney and Works continued to search the area.
Officer Thaddeus Colcott was also patrolling Atlantic Street in response to a radio dispatch concerning the incident. Near 660 Atlantic Street, he observed the defendant, who fit the description of the perpetrator. When Colcott approached, the defendant fled south
Works was initially hesitant to make a positive identification of the defendant because he did not recognize the defendant’s clothing. When Works did identify the defendant’s face as that of the perpetrator, Devaney searched him. The defendant was in possession of a sum of money equal to that reported to have been in Works’ wallet as well as Works’ identification. Neither the wallet nor the knife were found in the defendant’s possession. The entire incident, from the robbery to the identification of the defendant, lasted about fifteen minutes.
The relevant procedural history is as follows. On the final day of the criminal trial, the defendant submitted a request for a jury charge on the lesser included offense.
The defendant claims that the trial court improperly denied his request to charge on larceny in the sixth degree
“The law governing the right of a defendant to an instruction on a lesser included offense than that charged by the state is well established.” State v. Chance, 236 Conn. 31, 54, 671 A.2d 323 (1996). “There is no fundamental constitutional right to a jury instruction on every lesser included offense; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of common law.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996). “Connecticut law entitles a defendant to a lesser included offense charge if his request satisfies the four requirements set forth in State v. Whistnant, [supra, 588].” State v. Crafts, 226 Conn. 237, 250, 627 A.2d 877 (1993). The Whistnant requirements are as follows: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra, 588.
“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra,
The parties are at issue only on the fourth prong of the Whistnant test: whether the element of the crime of robbery that differentiates it from the lesser offense of larceny was sufficiently in dispute. The differentiating element of robbery is the use or threatened immediate use of physical force, in this case, the use or threatened immediate use of the knife. State v. Tinsley, 181 Conn. 388, 398, 435 A.2d 1002, cert. denied, 449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981); State v. Torrence, 37 Conn. App. 482, 488-89, 657 A.2d 654 (1995). The defendant, however, does not dispute the existence of the knife. The defendant contends that the lesser included offense should have been charged because there was a question as to the identity of the perpetrator of the robbery, but no question that the defendant was in possession of the stolen items.
In effect, “[t]he defendant’s request was for a charge concerning his culpability for a separate and distinct crime, that is, a charge as to an alternate offense, not a lesser included offense.” State v. Vitale, 197 Conn. 396, 408, 497 A.2d 956 (1985). The defendant was not charged with wrongfully taking, obtaining or withholding property of the victim fifteen minutes after the alleged robbery. See General Statutes § 53a-119. The defendant was charged with the commission of a robbery during an interaction with the victim. Larceny, to be a lesser included offense of this robbery, would have to have occurred during such interaction. “[W]e have never abandoned the general rule that one crime is not a lesser included offense of another if the greater can be committed without a simultaneous commission of the lesser.” State v. Barletta, 238 Conn. 313, 335, 680 A.2d 1284 (1996).
Because the defendant failed to meet the fourth prong of the Whislnant test, he was not entitled to a jury instruction on larceny in the sixth degree as a lesser included offense of robbery in the first degree.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-134 (a) provides in relevant, part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . .
The request included the following proposed charge: “If the state has failed to convince you beyond a reasonable doubt that it was Mr. Collins who committed a robbery as I have previously defined that offense for you—you may then go on to consider whether the state has proven the lesser offense of larceny in the sixth degree. Under our law, a person can be found guilty of this offense if he receives or [retains] stolen property knowing that it has been stolen or believing that it has probably been stolen. As used here, the term ‘receive’ means to acquire possession or control of such property.
“Legal Basis: General Statutes §§ 53a-118 (a) (6), 53a-119 (8), 53a-133.”
General Statutes § 53a-125b (a) provides: “A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less.”
General Statutes § 53a-119 provides in relevant part: “A person commits
In the defendant’s request for the lesser included offense charge, he did not raise any contention as to the use of a knife in the course of the offense.