21 Conn. App. 299 | Conn. App. Ct. | 1990
Lead Opinion
On trial to a jury, the defendant was convicted of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), and of conspiracy to commit robbery in the first degree in vio
The jury could reasonably have found the following facts, among others. On the night of May 11,1986, two masked males robbed a convenience store in Manchester. The first robber, wearing a clown mask and carrying a pellet gun, leaped over the cashier’s counter and ordered the store clerk to open the cash register and the safe. The second robber, wearing a red scarf over his face and carrying a tire iron, approached the store clerk’s husband and ordered him to lie facedown on the floor. The robbers took approximately $100. The clerk and her husband were not injured.
The store clerk and her husband provided the jury with profiles of the robbers through their testimony at trial. The first robber was between 5'6" and 5'8" tall and slight of build. The second robber was about two inches taller than the first. The first robber wore a clown mask that was bald on top with red hair sticking out on the sides. He also wore grey sweat pants. The pellet pistol he carried was black with a brown handle and a screw at the bottom of the handle.
A police investigation linked the defendant to the robbery. The defendant and a close friend lived in the same neighborhood, approximately two miles from the convenience store that was robbed. The defendant is approximately two inches shorter than his friend, who is nearly six feet tall. The defendant often wore grey sweat pants. The defendant had a pellet pistol similar
At trial, the state’s witnesses produced testimony that further linked the defendant to the robbery. The mother of the defendant’s friend testified that, about one month before the robbery, she discovered a pellet pistol in her apartment and, after her son told her that the pistol belonged to the defendant, she ordered her son to return it. She also testified that her son brought home an expensive stereo, leather jacket and leather sneakers and seemed to have money although he was unemployed. Other witnesses testified that the defendant possessed a pellet pistol and a Halloween costume prior to the robbery. Also, the defendant and his friend were heard asking for money on the day of the robbery.
I
The defendant first claims that the state’s evidence was insufficient to identify him as a participant in the robbery. Among the essential elements of the crimes charged, which the state had the burden of proving beyond a reasonable doubt at trial, is the identification of the defendant as the first robber. State v. Jackson, 176 Conn. 257, 258, 407 A.2d 948 (1978).
Our standard of review is well settled when the sufficiency of the state’s evidence is challenged after a conviction. We first construe the evidence in the light most favorable to sustaining the verdict. On the basis of this view of the evidence, we then determine whether the jury could reasonably have found guilt beyond a reasonable doubt. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985).
Our role is to determine whether the jury could have logically reached its conclusion from the facts shown. The jury must find guilt beyond a reasonable doubt by using the evidence to exclude every reasonable hypothe
If we find that there is sufficient evidence to enable the jury to find guilt beyond a reasonable doubt without resorting to speculation, the conviction must stand. We must not invade the province of the jury by weighing the evidence or by resolving questions of the credibility of witnesses. State v. Cobbs, 203 Conn. 4, 6-7, 522 A.2d 1229 (1987). “We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).
In the case before us, it is of no moment that the eyewitnesses were unable to identify the defendant as a participant in the robbery. The state’s case was necessarily based on circumstantial evidence because the robbers wore masks. There is no difference in the degree of the probative force of direct evidence versus circumstantial evidence. Id. However, because “the force and effect of circumstantial facts usually, and almost necessarily, depend upon their connection with each other”; Moore v. United States, 150 U.S. 57, 61, 14 S. Ct. 26, 37 L. Ed. 996 (1893); we recognize that “[i]t 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. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).
The cumulative impact of the evidence in this case was sufficient to enable the jury to conclude beyond
The fact that witnesses gave inconsistent descriptions of the robber’s mask and the defendant’s costume does not mean that the evidence in this case was insufficient. The jury may reasonably overlook inaccuracies in testimony that are within the range of human error. State v. Cates, 202 Conn. 615, 628 n.4, 522 A.2d 788 (1987). “Whether there seems to be contradiction between different witnesses or confusion in the testimony, it is precisely this type of factual conflict that Anglo-American jurisprudence has traditionally entrusted to the jury.” State v. Gaynor, supra, 504; State v. Moore, 3 Conn. App. 503, 504, 489 A.2d 1069 (1985); State v. Nelson, 38 Conn. Sup. 374, 376, 448 A.2d 219 (1982). The store clerk and her husband testified that the robber wore a clown mask, bald on top with red hair on the sides. Another witness stated that she saw the defendant at a party one month before the robbery with a costume, which she described as an old man’s hat with red hair sticking out. Given that each description contained the distinct feature of red hair, the jury could reasonably have overlooked other inconsistent aspects of the descriptions.
Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that there was suf
II
The defendant’s second claim is that the court erred in denying his motion for judgment of acquittal because the evidence was insufficient to prove that the pellet gun used in the robbery was a dangerous instrument, as defined in General Statutes § 53a-3 (7).
Because there was no evidence that the defendant threatened to use the pistol as a bludgeon, the verdict on the first count can be sustained only on the assump
Our modern penal code preserves, to a great extent, the distinction between those weapons that are deadly per se and those that are not.
Under § 53a-134 (a) (3), the state had the burden of showing that, under the circumstances in which the pellet pistol was used, it was actually capable of causing death or serious physical injury. State v. Grant, supra, 146 n.5. The defendant threatened to shoot the store clerk, but did not threaten to bludgeon her. Under these circumstances, an unloaded pellet pistol is not a dangerous instrument. Because the state failed to prove that the pistol was loaded during the robbery, there is error as to the first count in the trial court’s denial of a judgment of acquittal.
Ill
The defendant next claims that the trial court erred in denying his motion for judgment of acquittal on the second count for the charge of conspiracy to commit first degree robbery.
The uncontroverted evidence that the second robber wielded a tire iron sufficed to support the jury’s conclusion that the two robbers conspired to commit first degree robbery. See State v. Ghere, 201 Conn. 289, 299-300, 513 A.2d 1226 (1986). Under the circumstances, the tire iron clearly was a dangerous instrument under General Statutes § 53a-134 (a) (3). See State v. Grant, supra.
The defendant argues that the conviction for conspiracy to commit first degree robbery cannot stand because the state amended the long form information before submitting it to the jury and because the court did not recount all the elements of first degree robbery when instructing the jury on the second count. We find these claims to be without merit.
The information originally charged the defendant in the second count with conspiracy to commit “robbery in the first degree” in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3). The second count was subsequently amended pursuant to Practice Book § 624 to charge the defendant with conspiracy to commit “robbery.” The reference to § 53a-134 (a) (3) was not changed.
The sixth amendment to the United States constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” This provision is implemented by Practice Book § 618, which governs the form of information to be used in felony cases. Section 618 provides in part that “[t]he information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated.” “Under our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense. Practice Book §§ 495, 498; State v. Davis, 141 Conn. 319, 106 A.2d 159 [1954]; see State v. Brown, 163 Conn. 52, 61, 301 A.2d 547 [1972]. Once such a bill of particulars has been filed or where . . . the information is sufficiently precise that no bill of particulars is needed, the state is limited to proving that the defendant has committed the offense in substantially the manner described. State v. Beaulieu, 164 Conn. 620, 625, 325 A.2d 263 [1973]; State v. DiLorenzo, 138 Conn. 281, 284-85, 83 A.2d 479 [1951]; State v. Scott, 80 Conn. 317, 321, 68 A. 258 [1907]; cf. State v. Cari, 163 Conn. 174, 183-84, 303 A.2d 7 [1972]. In the event the state offers evidence
The argument of the defendant that the effect of the amendment of the information was to reduce the charge in the second count to conspiracy to commit third degree robbery fails because the state did not change the reference to General Statutes § 53a-134 (a) (3) in that count.
The defendant also contends that the trial court’s charge to the jury on the second count was inadequate to apprise the jurors of all of the elements of conspiracy to commit first degree robbery. According to the defendant, the jurors were unaware that the threatened use of a dangerous instrument is an aggravating factor that distinguishes the crime of conspiracy to commit first degree robbery from the offense of conspiracy to commit third degree robbery because the court made no mention of the dangerous instrument element in its charge to the jury on the second count. The defendant concludes that the jury could not have convicted the defendant of a greater offense than conspiracy to commit third degree robbery because it cannot convict an
The defendant did not take an exception to the charge to the jury and so we must determine whether to review this claim under the guidelines recently articulated in State v. Golding, 213 Conn. 233, 239-42, 567 A.2d 823 (1989). In the present case, the defendant has presented arguments that, if correct, would lead to the conclusion that there was a violation of a fundamental constitutional right that clearly deprived the defendant of a fair trial. See id., 241. Moreover, we are persuaded that if the defendant is correct, then the constitutional violation would not be subject to harmless error analysis. We, therefore, address the merits of the claim to determine whether the alleged constitutional violation clearly exists.
“ ‘ “ ‘The test to be applied to any part of a charge is whether the chargé considered as a whole presents the case to the jury so that no injustice will result.’ State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 [1974]; Siladi v. McNamara, 164 Conn. 510, 515, 325 A.2d 277 [1973].” State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977). State v. Stepney, 191 Conn. 233, 247, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 722, reh. denied, 446 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). It is well established that jury instructions must be read as a whole and that individual instructions are not to be judged in ‘artificial isolation’ from the overall charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). Although the Cupp court stated, ‘a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge,’ that court also recognized that that ‘does
In light of the trial court’s entire charge, the argument of the defendant that the jury was not apprised of all of the elements of conspiracy to commit first degree robbery is without merit. In explaining the charges against the defendant contained in the information, the court stated that the defendant was charged in the second count with conspiracy to commit first degree robbery in violation of General Statutes §§ 53a-48 and 53a-134 (a) (3). In its instructions on the first count, the court explained the elements of first degree robbery. The court also gave an instruction on the lesser included offense of third degree robbery, as requested by the state. The court then explained the elements of the crime of conspiracy in its instructions on the second count. The charge as a
There is error in part; the judgment is set aside as to the first count only and the case is remanded with direction to render judgment of guilty of robbery in the third degree on that first count, and to resentence the defendant accordingly.
In this opinion Spallone, J., concurred.
The jury’s verdict on the first count cannot be sustained on the ground that another participant in the robbery threatened the use of a dangerous instrument. See General Statutes § 53a-134 (a) (3). This is true despite the fact that the store clerk’s husband testified at trial that the second robber threatened him with a tire iron. The long form information charges only that the defendant personally threatened the use of a dangerous instrument and does not also charge that he participated in a robbery in which another participant threatened the use of a dangerous instrument. “[T]he state is limited to proving that the defendant has committed the offense in substantially the manner described.” State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983); quoting State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).
Under General Statutes § 53a-3 (6), firearms are deadly per se, whether loaded or unloaded. This provision expressly exempts §§ 29-38 and 53-206 from its coverage. The latter two statutes apply to carrying firearms on one’s person or in one’s motor vehicle. Unloaded firearms are not deadly per se under those statutes. State v. Scully, 195 Conn. 668, 677, 490 A.2d 984 (1985). The reason for these exemptions is that “the unloaded rifle or shotgun cannot be deemed per se ‘deadly weapons’ when transported in a motor vehicle; otherwise, even those with legitimate reasons for possessing an unloaded firearm in a motor vehicle, e.g., a hunter, would fall within the sweep of those provisions.” Id., 678 n.13. Outside of these two statutory exemptions, however, unloaded firearms are per se deadly, and this conforms with prior law. See State v. Reed, 157 Conn. 464, 468, 254 A.2d 449 (1969).
The defendant in the present case could have been charged with first degree robbery under either General Statutes § 53a-134 (a) (2) or § 53a-134 (a) (4). The pellet pistol used in the robbery is a weapon designed for violence. The weapon fits the definition of the term “deadly weapon” at § 53a-3 (6). This term appears in § 53a-134 (a) (2). The weapon also fits the definition of “firearm” in § 53a-3 (19). This term appears in § 53a-134 (a) (4). If the defendant had been charged under either of these sections, the state would not have had to prove that the pistol was loaded at the time of the robbery. The only issue would have been whether the weapon was operable. See State v. Hawthorne, 175 Conn. 569, 572, 402 A.2d 759 (1978); State v. Aleksiewicz, 20 Conn. App. 643, 569 A.2d 567 (1990). The fact that the state may well have offered evidence sufficient
One ground upon which this claim is based is that there was, according to the defense, insufficient evidence to identify the defendant as a participant in the robbery. We have already held that the evidence was sufficient.
On August 6,1986, the defendant motioned for a bill of particulars. That motion does not appear in the appellate record. Nor is there any indication whether the motion was granted or denied. “It is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 4061.
Dissenting Opinion
dissenting in part and concurring in part.
I
The majority charts a dangerous course by allowing the identification of the accused to be established through evidence that is not trustworthy. I have been unable to find any other Connecticut case in which a conviction was upheld on proof of identification based solely upon circumstantial evidence of mere similarities not bolstered by similarities of a distinctive nature that connected the defendant to the crime.
For example, in the following cases the Supreme Court of Connecticut reversed convictions where the identification of the accused was based solely upon circumstantial evidence that did not link the accused to the crime in some distinctive manner: State v. Cobbs, 203 Conn. 4, 522 A.2d 1229 (1987); State v. Mandrell, 199 Conn. 146, 506 A.2d 100 (1986); State v. Payne, 186 Conn. 179, 440 A.2d 280 (1982); State v. Jackson, 176 Conn. 257, 407 A.2d 948 (1978); State v. Mayell, 163 Conn. 419, 311 A.2d 60 (1972); State v. Kelsey, 160 Conn. 551, 274 A.2d 151 (1970). On the other hand, the following convictions were upheld because in each case there was distinctive circumstantial evidence of iden
If this case were stripped of all hyperbole,
The state seeks to bolster its claim with evidence that the first robber wore a distinctive Halloween clown mask and that the defendant was seen at a party with a similar mask. The descriptions of what purported to be the mask varied to such an extent that it would be speculative to conclude that they were similar let alone to draw an inference that it was the same mask. Hedy Kurapkot, the store clerk, described the mask worn by the first robber as a Halloween “clown mask” with red hair “sticking up.” Her husband described it as a “clown thing” with red hair and a “bald head thing on top.” Beth Lane, the only witness produced by the state to connect the defendant with the mask, testified that approximately one month before the robbery, when she was at a party with the defendant and others, he showed her a costume of “an old man’s hat with red hair on it.” The evidence does not indicate they were describing the same thing. Clearly, the Kurapkots described a face mask, but Lane described a costume consisting of an old man’s hat. Furthermore, the lapse of one month between the connection of the defendant with what purports to be the robber’s mask and the date of the robbery further dilutes this evidence. Even if we assume, however, that they were both face masks, the varied descriptions—that is, “clown” compared to “old man” and “bald” compared to “hat”— make this evidence too tenuous to conclude that they were similar.
The state’s case becomes even more untenable when the circumstantial evidence is viewed with other evidence that would indicate the defendant was not the first robber. The physical descriptions fail to indicate that the defendant and his friend Ciak were the robbers. The store clerk described the first robber as being 5' 6" to 5' 8" tall (her husband thought he was 5' 6" to 5' 7") and as being a “very small, thin man or boy” who she thought was white because of the sound of his voice. She described him as being very “spry,” having jumped the four-foot counter during the robbery, and as a fast runner. The defendant is black and the trial
The cumulative effect of the circumstantial evidence is insufficient to identify the defendant as being the perpetrator of the robbery beyond a reasonable doubt. The jury must not resort to speculation and conjecture in drawing inferences from circumstantial evidence. State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984). “Inferences to be drawn from the facts proved must be reasonable and logical . . . Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959); State v. Kelsey, 160 Conn. 551, 553-54, 274 A.2d 151 (1970). “Moreover, inferences which do not have a basis in facts established by the evidence cannot be drawn or relied on to sustain a verdict.” State v. Jackson, supra, 264. “A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” State v. Foord, 142 Conn. 285, 295, 113 A.2d 591 (1955); State v. Little, supra, 672. “If the evidence is insufficient to sustain the burden of proof beyond a reasonable doubt, the verdict must be set aside.” State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990).
I agree with the majority that the court should not sit as a “thirteenth juror” in determining guilt or innocence. The court, however, has an obligation to set the verdict aside when the evidence does not reach the
In my opinion, I would find error as to both counts, set aside the judgments and remand the case with direction to render judgment on each count that the defendant is not guilty and order that he be' discharged. Nevertheless, even if there were sufficient evidence to support the identification of the defendant as the first robber, I still would be unable to agree with the majority on the disposition of the first count and the conclusion they reach on the second. Accordingly, I write on these matters, in order to express my views.
II
I concur with the majority that the evidence on the first count in this case was insufficient to prove that the bb gun that the state claims was used in the robbery by the first robber was a dangerous instrument as defined by General Statutes § 53a-3 (7). I disagree, however, that the Appellate Court has jurisdiction to dispose of the case by directing that the defendant be
Section 899 was patterned after Rule 551 (b) of the Uniform Rules of Criminal Procedure. The commentary under that uniform rule states: “In the situation specified, the court should grant the defendant a new trial rather than merely modifying the verdict if the error in finding the defendant guilty of the higher offense might have infected the jury’s presumed finding of guilt as to the included offense.” It is clear that the case should be remanded to the trial court so it can make a determination of whether to render a judgment of guilty on the lesser included offense or order a new trial.
I am aware of State v. McGann, 199 Conn. 163, 178-79, 506 A.2d 109 (1986); State v. Aleksiewicz, 20 Conn. App. 643, 569 A.2d 567 (1990); and State v. Home, 19 Conn. App. 111, 142-146, 562 A.2d 43 (1989), wherein the appellate courts merely remanded the cases with direction to render judgment of guilty on the lesser included offenses when there was insufficient evidence to support the crimes charged. The simple answer is that the Supreme Court in McGann and the Appellate Court in Aleksiewicz and Home failed to take into consideration the requirement of § 899. Accordingly, this court is not bound by the precedent of those cases. Cf. State v. DellaCamera, 166 Conn. 557, 560, 353 A.2d 750 (1974). The rule provides, at least in the first instance, that the trial court is to make that deter
Ill
For several reasons, I also disagree with the majority’s refusal to set aside the conviction of conspiracy to commit first degree robbery in the second count. First, it is clear that the state, before the case was submitted to the jury, intended to and did reduce the charge from conspiracy to commit robbery in the first degree; General Statutes § 53a-134 (a) (3); to conspiracy to commit robbery in the third degree; General Statutes § 53a-136. At the request of .the assistant state’s attorney and with the permission of the court, the state amended the information by deleting the words “in the first degree” and “armed” so the information submitted to the jury read that the defendant was accused of committing the crime of “conspiracy to commit robbery” instead of “conspiracy to commit robbery in the first degree.”
Second, if the conspiracy count was in fact not amended to reduce the charge to conspiracy to commit robbery in the third degree, then the trial court committed error of a constitutional magnitude by failing to instruct the jury on an essential element of the crime.
The trial court failed to instruct the jury on the essential element of conspiracy to commit robbery by the use or threatened use of a dangerous instrument and charged only on robbery. The jury was initially instructed on the conspiracy count as follows: “The second count of the information charges the defendant with the crime of conspiracy to commit robbery. . . .
The trial court’s reading of the original information (before its amendment), which merely recited that the crime with which the defendant was charged was “conspiracy to commit robbery in the first degree” and which made reference to the statutory designation of the crime, was insufficient to constitute an instruction on the dangerous instrument element. The jury would know, on the basis of these instructions, only that it was required to find the dangerous weapon element if it extrapolated the requirement from the instructions on the first count. This may be reasonable for persons trained in the law, but not for lay jurors. Failure to instruct the jury on the element of the dangerous instrument for the conspiracy count was a constitu
Third, the majority conceded that the unloaded bb gun, the theory upon which the state prosecuted this case, could not satisfy the dangerous instrument element of the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). Instead, the majority seeks to satisfy this element of the conspiracy count by relying upon the wielding of the tire iron by the second robber. The state, however, did not rely upon this theory in prosecuting its case. Moreover, although the tire iron theory was advanced by the state in a footnote to its appellate brief, it was withdrawn during appellate argument. It is clear that fundamental fairness requires that an appellate court be restricted to the theory on which the case was prosecuted in the trial court. See Dunn v. United States, 284 U.S. 390, 392, 52 S. Ct. 189, 76 L. Ed. 356 (1932); 24 C.J.S. Criminal Law § 1707. A defendant is entitled to be put on notice of the state’s theory of prosecution at the trial level so that he or she can appropriately present a defense which includes effective cross-examination of witnesses.
In sum, I respectfully dissent except for that portion of the majority’s decision that holds that the bb gun as used in this case could not constitute a dangerous instrument under the provisions of General Statutes § 53a-134 (a) (3).
The majority makes certain claims to “link” the defendant with the crime that are not in evidence or even argued by the state on appeal. First it is claimed (p. 302) that the mother of Scott Ciak, the defendant’s friend, testified that “her son told her that the pistol belonged to the defendant . . . .” This hearsay evidence was allowed into evidence, over the objection of the defendant, for a limited purpose and not for the truth of it. The court on admitting the evidence ruled: “I would indicate to the ladies and gentlemen of the jury, the purpose of the question is for—is a limited one and the answer is also limited not as to the truth of the matter stated.”
It is also claimed (p. 304) that the “mother of the defendant’s friend gave testimony that strongly suggested that the [defendant and his friend] were involved in illegal activity.” Ciak’s mother did testify that she noticed that her son, who was not gainfully employed for a period prior to the robbery, had possession of “a lot of money” and expensive items of clothing during that period. There was not, however, a scintilla of evidence that the defendant was sporting such wealth. Indeed, the evidence shows that he often wore sweat pants.
Finally, it is claimed (p. 304) the “defendant and [Ciak] fit the description of the robbers.” The mere fact that the first robber was described as having been shorter than the second robber just as the defendant is shorter than his friend Ciak, is no basis for drawing this conclusion. Cf. State v. Jackson, 176 Conn. 257, 407 A.2d 948 (1978). There were in fact substan
David J. Best, an inspector with the division of criminal justice of the state of Connecticut, testified that the gun obtained from the defendant and identified as being similar to the one used in the robbery was a Cross-man model and fired a .177 caliber projectile. It is commonly referred to as a bb gun. Webster, Third New International Dictionary.
The direct evidence fails to establish that the defendant had possession of a bb gun on May 11,1986, the day of the robbery, which the state claims is one of the linchpins of its case. The state, to support its theory, relies on the testimony of Dawn Fava that she discovered a similar gun when she was moving out of her apartment and that, upon confronting the defendant with the gun, he took it. She testified, however, that she moved out of the apartment “about the end of April” and in the statement taken by the police she said she moved in June or July, 1986. Neither does the testimony of Beth Lane place the bb gun in the hands of the defendant on the day of the robbery. She merely testified that the defendant and Ciak were in Fava’s apartment on May 11,1986, while she was “in the midst of moving out” and made no reference to a gun. Indeed, the state during closing arguments conceded that Fava moved in a “piecemeal fashion out of her apartment.” There is no evidence that the defendant had a similar bb gun either immediately preceding the robbery, on the day of the robbery, or immediately following the robbery.
The information was amended when the following occurred:
“The Court: I will ask counsel to examine the information which I have here, as well as exhibit A.
“Mr. Maxwell [the assistant state's attorney]: Conspiracy to commit robbery, perhaps ‘in the first degree’ should be whited-out.
“The Court: Any problem with that, Mr. O’Toole [the assistant public defender]? I had indicated to them that the qualifying word ‘armed’ could be excluded. Why don’t you white-out the word ‘armed.’
“Mr. Maxwell: And first degree.
“The Court: Huh?
“Mr. Maxwell: Robbery in the first degree as well.
“The Court: Oh, you mean at the beginning of it?
“The Clerk: So it would be—
“Mr. Maxwell: Just as robbery, period.” (Whereupon examination of the documents continued. Further comments not audible.)
Whether it was preserved in the trial court, the defendant has a right to pursue this issue on appeal under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant meets the following four requirements of Evans and Golding: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40.
The trial judge instructed the jury on the definition of “robbery” as follows: “Robbery is generally defined under our law as follows: 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, one, preventing or overcoming resistance to the taking . . . [of] property, or to the retention thereof immediately after the taking, or two, compelling the owner of such property or another person, to deliver up the property or engage in other conduct which aids in the commission of larceny.”