201 Conn. 489 | Conn. | 1986
The crimes involved in this case arose out of a robbery of a restaurant in Hartford on January 29, 1981. After a trial to the court, Kremski, J., the defendant, Elkie Lee Crump, was found guilty under both counts of a substitute information which charged the crimes of robbery in the second degree, in violation of General Statutes § SSa-lSB,
On appeal, the defendant claims that there was “insufficient evidence” to sustain the trial court’s finding that he was guilty of robbery in the second degree and conspiracy to commit robbery in the second-degree,
Contrary to the defendant’s claim, there was sufficient evidence to prove that he was guilty of robbery in the second degree. A robbery is committed when, in the course of committing a larceny, a person uses or threatens the immediate use of physical force upon another person for any of the purposes set out in General Statutes § 53a-133.
Whether a person who is present at the commission of a crime aids or abets its commission so as to be criminally liable depends on the circumstances surrounding his presence there and his conduct while there. “ ‘The accessory statute, § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged. See LaFave & Scott, Criminal Law (1972), p. 505 n.53, § 64.’ (Emphasis in original.) State v. Harrison, [178 Conn. 689, 694, 425 A.2d 111 (1979)].” State v. Haddad, supra, 399. “A person acts ‘intentionally’ with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” General Statutes § 53a-3 (11). Intent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by circumstantial evidence. State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980); State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979). There is, of course, no legal distinction between direct and circumstantial evidence as far as probative force is concerned. State v. Wilson, 178 Conn. 427, 434, 423 A.2d 72 (1979). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); see State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). “It is clear that since the guilt of one who aids or abets is equal to the guilt of one who actually commits the crime, that statute [here General Statutes § 53a-8] renders anyone who comes within its terms guilty as a principal offender.”
The defendant next claims that the evidence upon which the trial court relied was insufficient to support its conclusion that the defendant participated in a conspiracy
At the end of the trial, the trial court, after stating orally its findings of fact and conclusions on the robbery count, then immediately went on and stated: “With regard to the charge of conspiracy to commit robbery in the second degree, the court finds that the facts as indicated by the court there was an intent to engage in criminal activity, that is, the robbery of that building. That intent is inferred from the facts that the three parties entered together, had a conference, that they split up each taking a particular position, that the robbery occurred, that there was an agreement, however sketchy, that agreement or plan was a plan devised by the parties and carried out. An overt act was committed, the taking of the money. All three parties left the premises at the same moment. Based on those facts, the court finds that Elkie Lee Crump is guilty of the charge of conspiracy.”
“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982). ‘The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they “knowingly engaged in a mutual plan to do a for
The evidence and the reasonable inferences therefrom establish the necessary proof under General Statutes § 53a-48 that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act by the actual robber in furtherance of the conspiracy. We are aware that the commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses. State v. Johnson, 162 Conn. 215, 219, 292 A.2d 903 (1972); see Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180, 90 L. Ed. 1489, reh. denied, 329 U.S. 818, 67 S. Ct. 26, 91 L. Ed. 697 (1946).
The defendant also claims that the trial court erred both in “assuming” that his waiver of his right to a jury trial was knowingly and voluntarily made and in accepting his election of a court trial in violation of his rights under the sixth amendment
In State v. Marino, supra, 642, we said: “Although the claim of an ineffective jury trial waiver is being raised for the first time on appeal, it is unquestionable that this issue involves a fundamental constitutional right guaranteed by the sixth amendment and that we must review the record to determine whether it clearly indicates that the defendant has been deprived of that
“Under both the United States and Connecticut constitutions the defendant was entitled to a trial by jury on the charges upon which he was presented and in fact tried. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, reh. denied, 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412 (1968); Conn. Const., art. I, §§ 8, 19; State v. Olds, 171 Conn. 395, 408, 370 A.2d 969 (1976). Any defendant may waive that right but only if he does so knowingly and intelligently. Schneckloth v. Bustamonte, 412 U.S. 218, 237-38, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Singer v. United States, 380 U.S. 24, 34, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965).” State v. Shockley, 188 Conn. 697, 705-706, 453 A.2d 441 (1982). Whether there is such a waiver “must depend upon the unique circumstances of each case.” Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S. Ct. 236, 87 L. Ed. 268 (1942), reh. denied and amended, 317 U.S. 605, 63 S. Ct. 442, 87 L. Ed. 568 (1943); see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Similar to that in State v. Marino, supra, 643, “[t]he issue before us,
The defendant argues that the written waiver, standing alone without an acknowledgment by him orally, is an insufficient basis to establish a knowing and intelligent waiver of his jury trial right. Our examination of the waiver claim requires that we examine the proceedings below including the court file and the transcripts filed with this court. We may “take judicial notice of all papers forming a part of the file in the case and use them for any proper purpose.” Krawiec v. Kraft, 163 Conn. 445, 451, 311 A.2d 82 (1972); see State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964); Jackson v. United States, 262 A.2d 106, 108 (D.C. App. 1970) (“[clerical entries made in the regular course of court business are presumptively true”—waiver of jury trial); W. Maltbie, Connecticut Appellate Procedure §§ 312, 313. “The notations made by the clerk upon the original papers and in the docket need no particular authentication but, appearing as made by him in the appropriate place, may be presumed to be accurate.” State v. Lindsay, 109 Conn. 239, 243, 146 A. 290 (1929).
In this case, the defendant was arrested on February 19,1981, pursuant to an arrest warrant. On February 20, 1981, he was, before his plea, advised by the court, Shaughnessy, J., of his constitutional rights according to statute. General Statutes § 54-lb. On that date, the court appointed, by name, the public defender who filed his appearance, represented the defendant from that time through the trial and also filed this appeal. On February 27,1981, the defendant pleaded not guilty to an information in one count charging him
We have noted that insofar as the right to a jury trial is based on the federal constitution, we could appropriately consider the procedure prescribed for an effective jury trial waiver under rule 23 (a) of the federal rules of criminal procedure. State v. Marino, supra, 644. That rule provides: “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” The concern, in requiring under rule 23 (a) that the waiver be in writing, “is to insure a greater probability of a defendant understanding what he is doing, if and when he waives his right to trial by jury.” Pool v. United States, 344 F.2d 943, 945 (9th Cir.), cert. denied, 382 U.S. 832, 86 S. Ct. 73, 15 L. Ed. 2d 76 (1965). The only record of the waiver required by most of the federal courts is the executed document itself. Id. While personal interrogation of the defendant in determining his understanding of the significance of his execution of the waiver is the better practice, Marino pointed out that “personal interrogation” is not essential under either the federal constitution or the rule. State v. Marino, supra.
This conclusion applies not only to the original information which was in one count but to the substitute information in two counts to which he pleaded not guilty on September 17, 1981. What occurred in open court on that date cannot be considered in a vacuum. While it undoubtedly would have been the better practice and eminently more preferable had the trial court addressed the defendant directly to determine his understanding of his earlier change of election in view of the two count substitute information to which he was pleading, we find a valid jury trial waiver on the substitute information. In doing so, we keep in mind that whether there has been an “intelligent” waiver depends upon the facts and circumstances of each case “includ
It is important to remember that defendant’s counsel, after the defendant’s plea to the substitute information, told the trial court that, consistent with the election filed earlier, “we” elect a trial to the court. This earlier election had been signed by the defendant and was markedly explicit. While the defendant did not personally announce his continued desire for a court trial, in this case we determine that his failure to protest, when and after his counsel informed the court that “we” persist in the court trial election, must be taken to reflect his knowing acquiescence in that position. See State v. Jelks, 105 Ariz. 175, 461 P.2d 473 (1969), cert. denied, 398 U.S. 966, 90 S. Ct. 2179, 26 L. Ed. 2d 549 (1970); State v. Watson, 19 Ariz. App. 369, 507 P.2d 981 (1973); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973); State v. Olivera, 53 Hawaii 551, 497 P.2d 1360 (1972); State v. Long, 408 So. 2d 1221 (La. 1982); see also State v. Swain, 61 Hawaii 173, 599 P.2d 282 (1979). This is not a case of a silent record. The record here, unlike those in other cases, has more than a bare “election” by counsel of a court trial. As we have demonstrated, the record discloses that the defendant was advised of his constitutional rights, that he personally signed a waiver of a jury trial, and that he ratified or acquiesced in that waiver after pleading to the substitute information. As in State v. Marino, supra, “[tjhere
There is no error.
In this opinion the other justices concurred.
General Statutes § 53a-135 provides in part: “(a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”
General Statutes § 53a-48 provides in part: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. ...”
Although the defendant’s amended statement of issues and his brief refer to the insufficiency of the evidence to sustain the guilty finding on the crime of robbery in the first degree, it is clear from the structure of his brief and oral argument that this was meant to refer to conspiracy to commit robbery in the second degree, one of the crimes with which he was charged and of which he was found guilty.
This claim of error requires no discussion as it is improperly before us. State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).
After the parties had rested, the trial court, in an oral decision, made certain findings of fact upon the basis of which it concluded that the defendant was guilty of the crimes charged in both counts of the substitute information. Some time later and after a motion for articulation by the defendant’s appellate counsel, the trial court more fully articulated its decision by responding to specific inquiries in that motion. See generally Practice Book § 4061 (formerly § 3060D); State v. Lafferty, 192 Conn. 571, 572, 472 A.2d 1275 (1984).
After the trial court’s response to the “Motion for Articulation,” the defendant’s appellate counsel filed a “Motion for Further Articulation” in which he asked the trial court to state which of the two men ordered the soft drink ‘ ‘if known, ’ ’ as well as which of them gave the money to the victim “if known.” In its “Further Articulation” the trial court stated that “it is not known” which one ordered the soft drink or which presented the money for its payment.
General Statutes § 53a-8, entitled “Criminal liability for acts of another,” provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
General Statutes § 53a-133, which defines robbery, provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
General Statutes § 53a-119 provides in part: “A person commits larceny when, with intent to deprive another of property or to appropriate
The 1971 comments of the commission to revise the criminal statutes contain the following concerning General Statutes § 53a-135: “Robbery in the second degree makes the presence of an accomplice an aggravating factor. The rationale is that the accomplice is equal to a person armed and therefore would generate a higher degree of fear in the victim.” Conn. Gen. Stat. Ann. § 53a-135 (West), see State v. Acklin, 171 Conn. 105, 118, 368 A.2d 212 (1976).
See footnote 2, supra.
The sixth amendment to the United States constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State . . . wherein the crime shall have been committed . . . .”
General Statutes § 54-82b (b) provides: “In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.”
Practice Book § 839 provides: “The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time he is put to plea, he elects a trial by the court, the judicial authority shall advise the defendant of his right to a trial by jury. If the defendant does not then elect a jury trial, his right thereto may be deemed to have been waived.”
The waiver issue was never raised by the defendant in his motion for a new trial or in his preliminary statement of issues. It was first raised in his amended statement by present appellate counsel.
We note that although the defendant’s amended statement of issues referred to the Connecticut constitution, article first, § 19, on this issue, the Connecticut constitutional issue has not been briefed and we need not discuss it. See State v. Corchado, 188 Conn. 653, 670, 453 A.2d 427 (1982); Rodriguez v. Mallory Battery Co., 188 Conn. 145, 148-49, 448 A.2d 829 (1982).
The written change of election was as follows: “CHANGE OF ELECTION
“The defendant, Elkie Lee Crump, having been advised of Ms rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 8 and 19 of the Connecticut Constitution, hereby waives his right to be tried by a jury and elects to be tried by the Court in the above-entitled action.
“The Defendant (Defendant’s Signature)
Elkie Lee Crump “(Atty. Connors’ Signature)
Kevin C. Connors His Attorney”
We do so despite the defendant’s claim of ineffective assistance, the validity of which is better determined in another proceeding. State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).