46 Conn. App. 778 | Conn. App. Ct. | 1997
Lead Opinion
Opinion
The defendant, John Preston, appeals from the judgment, rendered after a jury trial, convicting him of robbery in the third degree in violation of General Statutes § 53a-136.
The jury reasonably could have found the following facts. On March 19, 1994, the defendant entered Milk Plus, a convenience store in Fairfield. He tucked six or eight packs of cigarettes in his shirt. The cashier, Karem Shaham, was alerted to the defendant’s conduct by a customer, Arlene Wall, and observed the defendant’s actions. The defendant went to the cash register and placed three or four packs of cigarettes on the counter. When Shaham asked the defendant if he had enough money to pay for everything, the defendant replied that he had $30. Shaham asked him if he had anything in his shirt. As the defendant pulled out his shirt, Shaham
The struggle between Shaham and the defendant continued in the parking lot. The two men pushed and struck each other. At one point, the defendant held a bottle over Shaham’s head threatening to strike him. The defendant then ran to a car waiting in the parking lot. As he attempted to enter the car, Shaham again tried to prevent his escape. The driver of the car, however, pointed a pistol at Shaham and Shaham backed away.
Shaham then went into the store next to Milk Plus, Grasmere Liquor Store.
The police investigated the incident. Shaham gave them the license plate number of the vehicle, which was found later that day and towed away. The registered owner of the vehicle, William Revis, telephoned the police to inquire about his missing car and was informed that his vehicle had been involved in a crime. Revis told the police that it was the defendant who had entered the stores. He denied that he had threatened Shaham with a pistol or that he was involved in the crime in any manner other than driving the defendant to Fairfield.
The defendant claimed that he was not the individual who committed the crime. Shaham identified the defendant, through a composite picture and photographic
I
The defendant claims that the trial court improperly failed to instruct the jury on larceny in the sixth degree as a lesser offense included in the charged offense of robbery in the first degree.
In determining whether the trial court was required to charge the jury on a lesser included offense, the reviewing court must apply the four-pronged test in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). “A defendant is entitled to an instruction on a lesser included 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. ” Id. “In considering whether the defendant has satisfied the requirements set forth in State v. Whist-nant, [supra, 588], we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. ... On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is
The state claims that the defendant has not satisfied the first prong of the Whistnant analysis because he failed to submit an appropriate request to charge. The state argues that the defendant’s request to charge failed to provide the essential facts justifying this request and also that the defendant did not cite to any authority for the charge except for the statutory provision defining larceny in the sixth degree. General Statutes § 53a-125b.
The trial court determined that the evidence did not justify a lesser included offense instruction and, therefore, rejected the defendant’s request for such an instruction under the third and fourth prongs of Whistnant
The state also contends that the defendant failed to satisfy the third and fourth prongs of the Whistnant analysis because there was not sufficient evidence introduced to justify instruction on the lesser included offense.
We find that there was evidence introduced that the defendant was merely shoplifting. Witnesses testified that the defendant had concealed cigarettes from Milk Plus in his shirt and bottles of liquor from Grasmere Liquor Store in his pants.
“Evidence is sufficiently in dispute where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal.” (Internal quotation marks omitted.) State v. Collins, supra, 45 Conn. App. 10. The element differentiating robbery from larceny is the use or threatened immediate use of physical force. Id.
Although the defendant testified that he was not the perpetrator of the crime,
II
The defendant claims that the trial court improperly admitted Revis’ statement to the police as a prior consistent statement. He claims that Revis, his codefendant at trial, had a motive to implicate him even at the time of the earlier statement.
“The trial court has broad discretion in ruling on the admissibility of evidence and only upon a showing of a clear abuse of discretion will this court set aside rulings on evidentiary matters.” (Internal quotation marks omitted.) State v. Jones, 44 Conn. App. 476, 486, 688 A.2d 14 (1997).
Revis gave a statement to the police three days after the incident. Months later, he was arrested and charged with robbery in the first degree, conspiracy to commit robbery, conspiracy to commit larceny and a misdemeanor larceny. Before the defendant’s trial, Revis entered into a plea bargain with the state in which the first degree robbery charge was reduced to robbery in the second degree and the other charges were not
On redirect examination, the state sought to corroborate Revis’ testimony by introducing his written statement to the police. The court ruled the evidence admissible, but cautioned the jury, at the time of the testimony and again in its final instructions, that the jury should scrutinize his testimony carefully because he was an accomplice and may have been influenced by his self-interests.
Ill
The defendant claims that the trial court improperly failed to instruct the jury pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). He contends that Patricia Moriarty, who was in Milk Plus during part of the incident, was both available and a party the state would naturally produce if her expected testimony would be favorable.
The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him permits the inference that the evidence of the witness would be unfavorable to the party’s cause. Id., 675. Nevertheless, “[a] prospective
The judgment is reversed and the case is remanded for a new trial.
In this opinion HEIMAN, J., concurred.
General Statutes § 53a-136 provides in relevant part,: “(a) A person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133. . .
General Statutes § 53a-133 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.”
Secondino v. New Haven Gas Co., 147 Conn. 672, 164 A.2d 598 (1960).
Shaham’s father owned both Milk Plus and Grasmere Liquor Store.
General Statutes § 53a-125b provides in relevant part: “(a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service is two hundred fifty dollars or less. ...”
General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”
In his written request to charge, the defendant requested an instruction on the lesser included offense of larceny in the sixth degree because “[t]he jury may find that no force was used and that no robbery took place, but that items valued less than $100 were taken.”
The colloquy between the court and defense counsel also set out the essential facts that counsel claimed justified the lesser included offense instruction. The following discussion occurred:
“The Court: What did you want, larceny six?
“Defense Counsel: Yes, Your Honor.
“The Court: Why is that I wonder?
“Defense Counsel: The value of the merchandise. If the jury felt there was a crime here, simple shoplifting—
“The Court: I don’t have evidence of that, do you?
“Defense Counsel: If the jury finds that—that there was no force used to take merchandise, but that the force used was just to escape and, in fact, there was nothing taken, then they could find easily a simple shoplifting.
*783 “The Court: I don’t think so, not under the facts of this case.
“Defense Counsel: There is a lot of doubt—
“The Court: There’s no doubt, whatsoever, about the state’s case. It’s a robbery, pure and simple; started out as a shoplifting and went sour once they got into an altercation. Did he leave with the product? Yes, he did.
“Defense Counsel: He left with two bottles, unaccounted for, if they find that is true.
“The Court: There is no evidence to the contrary. There has to be evidence of that in the case and there isn’t any. I couldn’t justify—sit here and tell this jury they could determine this was simply a shoplifting case. If that’s all we’re here for, we look foolish.”
Wall testified that she saw the defendant stuffing packs of cigarettes into his shirt. The clerk from the liquor store testified that the bottles of liquor were missing from the store. Shaham testified to seeing both the cigarettes and the liquor bottles.
An alternate or inconsistent theory of defense is permissible. See State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983).
This testimony contradicted the state’s version of the crime. The defendant would be liable for the actions of an accomplice or coconspirator.
The court gave the following instruction as part of its final instructions: “On the Revis—Revis’ testimony, is that of an accomplice. If you believe his conduct in this case, whoever he was, he was an accomplice to that and as such in weighing the testimony of such a person who is a self-confessed criminal you should consider that fact. It may be you would not believe a person who has committed a crime as readily as you would believe a person of good character.
“In weighing the testimony of an accomplice who not yet has been sentenced or whose case has not yet been disposed of or he’s been charged and he’s pleaded, you should keep in mind that he may in his own mind be looking for some favorable treatment or disposition in his own case. Therefore, he may have such an interest in the outcome of this case, his testimony may have been colored by the fact. You must look with particular care at the testimony of an accomplice. Scrutinize it carefully before you accept it.”
The court specifically addressed Revis’ previous statement: “[Y]ou have a piece of evidence in there with you, the statement of Revis offered and I cautioned you at that time and told you the purpose of it. It is a prior consistent statement offered by the state only—only admissible and usually not admissible—only admissible when there is an attack upon the witness who does testify and there is an attempt to impeach him showing that he is motivated for some other reason.
“And, in this case, he gave a statement implicating the accused in the offense and that during the pendency of his case there [were] questions put to the witness about what was going to happen to him and he conceded that he has pleaded guilty and expects ten years suspended after five and that his probationary term, whatever he had there, will be terminated when
“I bring your attention to his statement, and is offered not for truth of the matters contained therein, but offered to show he had given a statement at a much earlier time and the word some used guardedly, in the context of this case earlier than anytime where he received what he perceived to be or someone—you may perceive as a favorable disposition for his conduct in this case. It is just offered as a prior consistent statement that he had given earlier. Such a witness may be rehabilitated and supported by showing he previously made a statement which is consistent with the present testimony in court.”
Dissenting Opinion
dissenting. I disagree with the majority’s conclusion that the trial court should have instructed the jury on larceny in the sixth degree. I agree with the trial court’s decision not to deliver the charge based on the third and fourth prongs of Whistnant.
“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
Our Supreme Court has determined “that in order to meet the third prong of the Whistnant test, there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense.” State v. Rasmussen, 225 Conn. 55, 67-68, 621 A.2d 728 (1993). Furthermore, our Supreme Court has rejected the contention “that the presentation of an abstract theory in a request to charge or the mere introduction of some evidence satisfies the third condition of Whistnant.” Id., 67.
It is well established that the element differentiating robbery from larceny is the use or threatened immediate use of physical force. State v. Collins, 45 Conn. App. 6, 10, 692 A.2d 865 (1997). The record is replete with evidence that the defendant used force in the commission of this offense and there is no testimony by any witness that the defendant did not use force. There was testimony from two eyewitnesses that the defendant and Karem Shaham fought when Shaham tried to prevent the defendant from stealing his merchandise. Shaham, himself, testified that the defendant pushed and punched him and threatened to strike him in the head with a liquor bottle. The defendant did not refute this evidence, but instead chose to challenge the identity of the perpetrator.
Furthermore, the defendant’s contention that any use of force on his part was merely an attempt to escape rather than to retain the property he had stolen has no basis in the evidence. According to the evidence found in the record, the struggle between Shaham and the defendant began in the store and continued in the parking lot. Shaham testified that the defendant did not want
Pursuant to the fourth prong of Whistnant, the elements differentiating the lesser included offense from the charged offense must be sufficiently in dispute to permit the jury to find the defendant not guilty of the greater offense but guilty of the lesser. State v. Manley, 195 Conn. 567, 574-75, 489 A.2d 1024 (1985). The defendant may place a matter in dispute either through cross-examination or through evidence presented as part of his case. Id., 578.
I agree with the trial court’s conclusion that there was no actual dispute over whether force was used in the commission of this theft. The defendant’s testimony did not conflict with the state’s witnesses. Moreover, the defendant did not place the element of force in dispute through the cross-examination of the state’s witnesses. Although Arlene Wall, who was in the store during the incident, testified that she did not see what occurred outside the store, her inability to observe the violent exchange between Shaham and the defendant did not put this element in dispute. Furthermore, Wall did testify that she observed Shaham and the defendant exchanging words and saw the defendant push Shaham away when they were all inside the store. William Revis’ testimony was also corroborative of Shaham’s version of events.
Our Supreme Court has held that “the trial court, in making its determination whether the proof is ‘sufficiently in dispute,’ while it must carefully assess all the evidence whatever its source, is ‘not required to put the case to the jury on a basis [of a lesser included offense] that essentially indulges and even encourages speculations as to [a] bizarre reconstruction [of the evidence].’ United States v. Sinclair, 444 F.2d 888, 890
Therefore, I respectfully dissent from the majority opinion because the defendant failed to sustain his burden of meeting the third and fourth prongs of Whistnant.
I would affirm the judgment of the trial court.