8 Conn. App. 119 | Conn. App. Ct. | 1986
The defendant appeals his conviction, after a jury trial, of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2).
The defendant claims that the trial court erred (1) in denying the defendant his right to a unanimous verdict on the first count of the information, (2) in instructing the jury that the defendant could be guilty of assault by acting recklessly, and (3) in concluding that the evidence was sufficient to support a conviction of conspiracy to commit robbery.
At approximately 4 p.m. that same afternoon, Detectives Russell Blow and Edward Czernicki of the Hartford police department noticed a car matching the description of the suspect’s vehicle as it drove by their position on Nelson Street. Blow recognized the driver of the car as the defendant, Willie Milledge. The two detectives stopped the car and, approaching it with guns drawn, ordered the occupants to keep their hands raised. The defendant, with his head down to the level of the steering wheel, appeared to be fumbling with something under the seat in an attempt to hide it. The defendant was ordered to exit the car, after which a small .25 caliber handgun was recovered from the vehicle. This gun was later proven to be the weapon from which a bullet taken from the victim’s skull was fired. In addition to the defendant, the vehicle was occupied by Arthur Alexander, Woodrow Johnson, Billy Leonard, and Barry Williams. The suspects were taken into custody and were made subjects in a lineup.
Freddie Torrez, the brother of the victim, witnessed the shooting. He viewed the lineup and picked out the defendant as the party who held the gun while Alexander and Williams threw him to the ground and
The defendant’s first claim, although not raised at trial, is reviewable by us under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The defendant asserts that he was deprived of his right, under the sixth amendment to the United States constitution, to a unanimous verdict of his six member jury. He claims deprivation of a fundamental right and contests the fairness of his trial. We held in State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986), that a defendant’s unanimity claim falls into the category of cases that may be reviewed under the Evans bypass.
It is clear that the sixth amendment to the United States constitution guarantees a defendant in a criminal case the right to a unanimous verdict if his jury consists of only six members. Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979).
The amended information, in the first count, charging the defendant with robbery in the first degree, sets forth as follows: “First Count: That the said Willie
In pressing his unanimity argument, the defendant claims that some of the jurors might have found the defendant guilty of robbing Vega, while others of the jury might have found the defendant guilty of robbing Torrez. The jury could have been unanimous in its conclusion that a robbery was committed but could have lacked unanimity as to each of the victims, individually, thereby depriving the defendant of his constitutionally required unanimous verdict.
We disagree with the defendant’s argument that in order to find the defendant guilty the state had the burden of proving that two robberies were committed. The state charged the defendant with only one count of robbery for which the defendant was tried, convicted and sentenced. The state had the burden of proving beyond a reasonable doubt the elements of the crime of robbery in the first degree as charged in the amended information. The essential elements constituting the crime of robbery in the first degree under General Statutes § 53a-134 (a) (2) are a robbery when the person committing same is armed with a deadly weapon.
General Statutes § 53a-133 defines robbery as essentially the taking of the property of another by the use of force or the threat thereof. The information in this case, in addition to relating the essential elements of robbery in the first degree, in effect, gratuitously adds additional elements resulting in a greater burden of
The jury was not confronted with the option of choosing from the allegations only those elements necessary to constitute a robbery of either Vega or Torrez but was in fact instructed by the court that they had to find, unanimously, all the elements as alleged in order to convict the defendant of the crime of robbery in the first degree. The trial court in its instructions to the jury on several occasions emphasized the fact that their verdict had to be unanimous. A fair reading of the complete charge leaves no doubt that the jury was fully and fairly apprised of the requirement of unanimity. In addition, the record indicates that the jury was polled and that the defendant neither made an effort to provide a record of the results nor did he object to the acceptance of the verdict. If the poll supported the defendant’s claim of lack of unanimity, we would expect that he would have provided us with the record of the same. We will not presume error. State v. Tyler-Barcomb, 197 Conn. 666, 676, 500 A.2d 1324 (1985); State v. Thompson, 197 Conn. 67, 81, 495 A.2d 1054 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). The defendant’s claim of lack of unanimity is unwarranted.
There is no error.
In this opinion the other judges concurred.