24 Conn. App. 518 | Conn. App. Ct. | 1991
The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes
The jury could reasonably have found the following facts. On October 13,1988, at approximately 5:35 a.m., Gerald Grant left his home and went to a twenty-four hour convenience store to purchase cigarettes. After leaving the store he was approached by the defendant, who attempted to sell him a white substance contained in a small glass bottle. When Grant refused, three other individuals approached and grabbed and struck him, causing him to lose consciousness. As he regained consciousness, he was aware of someone going through his pockets. He was then thrown to the ground and kicked twice by the defendant. Someone other than the defendant told Grant to “give him the money and he’ll stop beating you.” Grant was then picked up and placed across a car, where the defendant put a knife to Grant’s throat and threatened to cut Grant’s throat if he did not give him money. Grant then reached into his pocket and gave the defendant between $260 and $270.
After being denied the use of the telephone at the store, Grant used a phone booth near the store to call 911 to summon the police. After their arrival, the police brought Grant to a street a few blocks away, where he identified the defendant.
The defendant challenges the court’s failure to strike Grant’s testimony because the police erased the tape of his emergency 911 call. The following facts are relevant to this claim. During the direct examination of
The state concedes that the tape of the 911 emergency call constituted a “statement” within the definition provided by Practice Book § 749 (2).
The defendant also challenges the trial court’s refusal to instruct the jury, as requested, on robbery in the third degree as a lesser included offense of robbery in the first degree.
To be entitled to a charge on a lesser included offense, a defendant must show that he has complied with the four conditions stated in (State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980): “(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. Edwards, 214 Conn. 57, 62-63, 570 A.2d 193 (1990). The state claims that the defendant has not satisfied the first and fourth conditions of the Whistnant test.
In the present case, the defendant’s request to charge did not adequately comply with our rules of practice. It contained no facts at all, let alone “ ‘a complete statement of the essential facts as would have justified the court in charging in the form requested.’ ” State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984). Having so concluded, we need not consider the second, third or fourth prongs of the Whistnant test. The trial court properly refused to grant the defendant’s request to instruct the jury on the elements of robbery in the third degree, General Statutes § 53a-136, as a lesser included offense of the crime charged.
The judgment is affirmed.
In this opinion the other judges concurred.
State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988), decided April 12,1988, and affirmed subsequent to the completion of this trial, 212 Conn. 6, 562 A.2d 470 (1989).
Practice Book § 749 (2) provides: “The term ‘statement’ as used in Sec. 748 means . . . (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”