STATE OF CONNECTICUT v. ADRIEN M. MORIN
Supreme Court of Connecticut
Argued November 8, 1979-decision released May 20, 1980
180 Conn. 599
COTTER, C. J., LOISELLE, BOGDANSKI, PETERS and HEALEY, JS.
There is error, the judgment is set aside and the case is remanded for a new trial.
In this opinion the other judges concurred.
Robert E. Beach, assistant state‘s attorney, with whom was Harry S. Gaucher, Jr., state‘s attorney, for the appellee (state).
LOISELLE, J. The defendant was tried by a jury of twelve upon an indictment charging him with felony murder. The jury returned a verdict of guilty. The defendant appealed from the judgment rendered on the verdict. The sole issue raised by the defendant is whether the trial court erred in refusing to instruct the jury on burglary in the first degree;
“A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (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, 179 Conn. 576, 588, 427 A.2d 414
(1980). The record shows that the state requested an instruction to the jury on burglary and robbery as lesser included crimes4 and that the defendant supported that request. The grand jury‘s indictment alleged “that at the City of Willimantic, in Windham County, on or about the 21st day of August, 1975, the said Adrien M. Morin, acting with two other persons, did commit a burglary and robbery, and in the course of and in furtherance of such crimes, said Adrien M. Morin caused the death of a person other than one of the participants, namely, the death of one Dominic Dipollina, late of 240 Walnut Street, in Willimantic, in violation of the provisions of § 53a-54c of the General Statutes of Connecticut .” The state‘s request for an instruction on the lesser crimes and the terms of the indictment satisfy the first two criteria of the test established in State v. Whistnant, supra.
The third requirement of the rule is that there be some evidence which would justify conviction of the lesser offenses which were alleged in the indictment and for which instructions were requested. To make this determination it is necessary to review the evidence presented. Shortly after 11 p.m. on August 21, 1975, the Willimantic police department sent a police sergeant to 240 Walnut Street to investigate a possible burglary in progress. The sergeant met two other police officers at the scene upon his arrival. He noticed a light on in the basement. The sergeant and a neighbor entered the house through the front door which was slightly ajar and walked through the house to the den. There they found
An investigation showed that an upstairs window, which was intact earlier in the day, had been broken from the outside. Several neighbors had heard the sound of breaking glass at about 11 p.m. that evening. A palm print “lifted” from the window was subsequently identified as that of Adrien Morin. Several witnesses also saw three people run from the house shortly after 11 p.m., one of whom ran with a limp. A neighbor saw the three get into a maroon Chevrolet and drive away with the lights off. Adrien Morin ran with a limp and, at that time, the defendant‘s brother Ronald Morin drove a 1965 maroon Chevrolet.
The details of the crime were supplied by Ronald Morin, the defendant‘s brother, who testified under a grant of immunity. Ronald and another brother Lionel had painted Dipollina‘s house together in the summer of 1973. Their sister, Jeannine Baril, lived next door to Dipollina at 238 Walnut Street. In August, 1975, several days before the crime, Ronald and Adrien visited Jeannine at her house. When Adrien suggested that they go next door to “see if the old man has anything,” Jeannine objected. Adrien told her not to get in his way. Ronald apparently broke up the confrontation.
On August 21, 1975, the night of the crime, Ronald, Adrien and an unnamed third party drove to Jeannine‘s house. On the way there, Adrien said he wanted to rob Dipollina. Ronald parked the car
This evidence was offered by the state. The defendant presented no evidence. The state‘s evidence justified a conviction for first degree burglary,5 first degree robbery,6 or both. State v. Rado, 172 Conn. 74, 75-77, 372 A.2d 159 (1976), cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977). The defendant has therefore established the third criterion of State v. Whistnant, supra.
With regard to the fourth and final criterion of State v. Whistnant, it is necessary to determine which elements differentiate first degree burglary and first degree robbery from felony murder, then to consider whether those elements were sufficiently in dispute to permit the jury consistently to find the defendant innocent of felony murder but guilty of burglary or robbery.
The evidence reviewed above was uncontradicted by the defendant. There was no dispute at trial that Dipollina‘s injuries were inflicted in the course of and in furtherance of the crime. The only differentiating element which may have been in dispute, and then solely by virtue of cross-examination, was the cause of death. The evidence showed that Dipollina was beaten on August 21, 1975, but did not die until December 24, 1975. The state introduced witnesses to prove that the beating was the cause of death approximately four months later. One of Dipollina‘s daughters testified that before August 21, 1975, her father, though eighty years old, enjoyed a fairly vigorous life. He cared for his home, mowed his lawn, gardened, chopped wood, shoveled his driveway, and drove his truck every day to go shopping. She had visited her father on the day of the crime and he was well. At around midnight that evening she was called to the emergency room where she saw her father on a stretcher. He was just staring 7
The state also called five physicians to testify to the cause of Dipollina‘s death. The doctor who treated him in the emergency room on the night of the crime testified that Dipollina had received more than one blow to the head, neck and arms, sustaining fractures in the nose and abrasions, lacerations and contusions on the neck, lip and forearms. His family doctor, whom he had been seeing for the past twelve years, testified that Dipollina‘s daughter had telephoned him two days after the crime and said that her father was experiencing a great deal of pain. Upon examination, the doctor determined that swelling in his neck prohibited Dipollina from eating and readmitted him to the hospital to check for further internal injuries. The family physician also testified that on September 15, 1975, Dipollina was admitted to a convalescent home where he became increasingly frightened, agitated, aggres-
The third physician called by the state was the assistant medical examiner who completed the death certificate and ordered that an autopsy be performed. He classified the cause of death as “homicidal assault.”8 On cross-examination, he testified that the specific cause of death was subdural hemorrhaging and clotting, which, in Dipollina‘s case, included old and new bleeding covering both sides of the brain. He also testified that subdural hemorrhages are almost always caused by trauma, that he had never seen one caused by anything else, and that symptoms of subdural hemorrhage may not appear for many weeks after a traumatic event.
The state also called as a witness the pathologist who performed the autopsy on the date of Dipollina‘s death. He found that death was caused by “chronic subdural hematoma,” a chronic hematoma being one which is not apparent immediately after the injury and may not be recognized for months. The physician testified that chronic hematomas are 8
Finally the state called the chief medical examiner for the state of Connecticut who discussed the circumstances of death and the findings of the autopsy with the doctor who had performed it. In answer to a hypothetical question which contained much of the evidence presented, the doctor concluded that the August 21 injuries were “the precipitating cause of death.”
The defendant introduced no expert or direct evidence to contradict the testimony of the five doctors called by the state. The few statements cited by the dissenting opinion from cross-examination of the state‘s five expert witnesses can hardly be considered a “strong attack” on the state‘s evidence that the defendant caused Dipollina‘s death. The evidence most favorable to the defendant was adduced on cross-examination of the pathologist who per-
“It is axiomatic that the state, in a criminal case, has the burden of proving every essential element of the crime charged beyond a reasonable doubt. State v. DeCoster, 147 Conn. 502, 504, 162 A.2d 704; State v. Newman, 127 Conn. 398, 400, 17 A.2d 774.” State v. Jackson, 176 Conn. 257, 258, 407 A.2d 948 (1978). Here, the facts which the jury could have
There is no error.
In this opinion COTTER, C. J., BOGDANSKI and PETERS, JS., concurred.
ARTHUR H. HEALEY, J. (dissenting). I cannot agree with the majority‘s opinion that the element of causation, which differentiates the greater offense of felony murder from the lesser offenses of first degree burglary and first degree robbery, was not “sufficiently in dispute” to permit the jury consistently to find the defendant innocent of felony murder but guilty of burglary or robbery. Although the majority acknowledges that “[t]he state‘s evidence justified a conviction for first degree burglary, first degree robbery, or both,” it goes on to hold that the defendant was not entitled to instructions on those offenses on the basis of the last prong of the test in State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). The majority‘s statements that the evidence “supports the jury‘s conclusion that the August 21, 1975 beating set in motion the force which killed Dominic Dipollina on December 24, 1975,” and that “the facts which the jury could have found from the state‘s evidence were sufficient to prove each and every element of felony murder, including causation, and therefore sufficient to sustain the verdict,” serve to obscure the issue on this appeal. The question of the sufficiency of the evidence to sustain the verdict has not been raised by anyone. The only question is whether the evidence on the element of causation was “sufficiently in dispute to permit the jury consistently to find the
This case presents a classic example of the last prong of Whistnant being satisfied, for not only could reasonable minds differ on the element of causation, but there was an actual dispute at the trial on this point. What I consider to be a strong attack made by the defendant on the state‘s case on the element of causation is not entirely evident from the facts appearing in the majority opinion, which derive primarily from the evidence summarized in the state‘s brief. I believe that this is a case where it is necessary to deviate from our normal procedure of examining only the evidence in the briefs; see Practice Book, 1978, § 3060R; and, under § 3060R “consult the transcript of evidence on file to supplement or explain the evidence” in the briefs because “sufficient cause appears” to do so. When the defendant filed his brief, our decision in State v. Whistnant, supra, had not been published and he was, therefore, unaware of any need to satisfy the requirements set out in that case. He relied upon the state of the law at the time his brief was filed,
In this case the state called five doctors to testify. The testimony of four of these doctors was directed to a single issue: the cause of the victim‘s death.2 Each of these doctors was subjected to extensive cross-examination on that issue. Doctor Swan is a general practitioner in family practice. He testified that he saw the victim on July 10, 1975, just prior to the assault of August 21, 1975, for complaints which included a urinary problem and “poor appetite” and that at the time of a visit one week later he “was apparently healthy.” Swan also treated the victim after the assault. The state‘s attorney 2
Doctor Basden, a general practitioner and assistant medical examiner, viewed the body of the victim and the results of the autopsy in order to fill out the death certificate. Basden concluded that the cause of death was “[b]ilateral organized subdural hematoma with bilateral lobular pneumonia,” and he classified this death, under the categories appearing in the certificate, as a “Homicide assault.” On cross-examination, Basden testified that he had seen the victim once after the August 21 injury; that the victim‘s daughter is a neighbor of his; and that he paid the victim a courtesy visit and referred him to his original physician. He also testified that prior to making out the death certificate he had looked at the hospital chart which referred to the August 21
Doctor Rosenberg, the pathologist who performed the autopsy, testified that in the examination of the brain his principal finding from the autopsy was a chronic subdural hematoma. He also testified that chronic malnutrition was “an important contributing factor” in the cause of death. On cross-examination he testified that, according to the facts presented to him in a lengthy hypothetical question posed to him by the state on direct examination, the subdural hematoma “would appear to be the earliest insighting [sic] cause or contributing factor.” He then went on to say that there were other contributing factors in this death, and was asked the question, “You are not prepared to say that this man‘s death was solely caused by the subdural hematoma?” He answered “No.” He was then asked the following questions and gave the following answers: “Can a subdural hematoma ever be the sole proximate cause of death? A: Yes. It can. Q: But it was not in this situation? A: Not in my opinion.”
Doctor Gross, the chief medical examiner for the state of Connecticut, also testified for the state. He
In the light of this evidence, coupled with the fact that the victim was eighty years of age at the time of the assault and that about four months elapsed between the assault and his death, it is eminently fair to say that a genuine factual dispute existed on the element of causation. Because the evidence showing that the defendant was guilty of burglary or robbery was overwhelming,3 the element of causation was, in effect, the sole issue in dispute at the trial. The state, as well as the defendant, acknowledged this dispute and the real possibility that the jury might not believe that the element of causation 3
The majority appears to suggest that an element differentiating a greater offense from a lesser offense can be “sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser” only when the defendant presents evidence to rebut the state‘s evidence on that element. That requirement is not part of the Whistnant rule. This is implicitly recognized by the third prong of the Whistnant rule, which requires that there be “some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The function of cross-examination is to put certain matters in dispute and, indeed, in this instance that function is well demonstrated. Nor does such a requirement square with the basic rule that it is the jury‘s province to decide questions of fact fairly presented by the evidence. See Stevenson v. United States, 162 U.S. 313, 314, 16 S. Ct. 839, 40 L. Ed. 980 (1896); State v. Rodriguez, 180 Conn. 382, 405, 429 A.2d 919 (1980). Implicit in the right to trial by jury afforded criminal defendants under the sixth amendment to the United States constitu- 4
In State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), the fourth prong of the test there announced was appropriately applied. Whistnant sought a charge on larceny in the fourth degree as a lesser offense of robbery in the first degree. Because larceny in the fourth degree does not involve use of a deadly weapon or dangerous instrument and the only evidence introduced was of a theft of money by the use of a firearm, we concluded 5
In People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927), the New York Court of Appeals considered the propriety of a trial court‘s refusal to charge on a lesser offense of felony murder, which was punishable by death. The Moran court concluded that submission of the case to the jury on felony murder alone “is proper only where there is ‘no possible view of the facts which would justify any other verdict except a conviction of the crime charged or an acquittal.‘” Id., 105. The court went on to state that where evidence is uncertain in its implications the jury must not be forced into the dilemma of choosing between conviction of the crime charged and acquittal. Ibid.; accord, People v. Oddy, 16 App. Div. 2d 585, 229 N.Y.S.2d 983 (1962). That same reasoning applies here. I believe that under State v. Whistnant, the defendant was entitled to have the jury pass upon the lesser offenses of first degree robbery and first degree burglary. The element of causation presented a factual question that was not only “sufficiently” in dispute, but was hotly in dispute. Accordingly, I would set aside the judgment and order a new trial.