7 Conn. App. 445 | Conn. App. Ct. | 1986
The defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and (3)
The jury could reasonably have found the following facts. In September of 1980, Joseph Fappiano was employed as a cook at Valentino’s restaurant on Whitney Avenue in Hamden. His duties included closing the restaurant at night and taking home the restaurant’s
The defendant first claims that the trial court, by imposing consecutive sentences for his convictions of robbery and larceny, violated his constitutional right not to be punished twice for the same offense. In support of this claim, the defendant argues that robbery in the first degree and larceny in the first degree both constitute the offense of larceny with the only distinc
The defendant acknowledges that this claim was not raised below but asserts that it is, nevertheless, reviewable under the fundamental rights-fair trial exception established by State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). While the state does not argue that this claim is not reviewable under Evans, we hold that it is not. See State v. Cosby, 6 Conn. App. 164, 166, 504 A.2d 1071 (1986) (state’s concession of reviewability under Evans not binding on this court).
Appellate review under Evans of a claim of error not raised below is appropriate only where “the record adequately supports a claim that a defendant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985). The defendant’s double jeopardy claim certainly implicates a fundamental constitutional right. “The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).” State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985). The defendant’s claim that larceny in the first degree and robbery in the first degree constitute the same offense has been definitively and recently rejected by our Supreme Court in State v. Boucino, 199 Conn. 207, 224, 506 A.2d 125 (1986). The defendant in Boucino, as the defendant in this case, contended that sentencing on both his conviction for robbery in the first degree and his conviction for larceny in the first degree vio
The defendant’s second claim is that the trial court erred by failing to instruct the jury on the proper standard to apply when evaluating the credibility of accomplice testimony. At the defendant’s trial, Mark Reamer, the owner and driver of the car involved in the robbery, testified and implicated the defendant. He also testified that he had participated in the crime unwittingly, and that he had pleaded guilty to aiding a robbery and had received a suspended sentence. While the trial court instructed the jury that Reamer’s testimony should be “carefully scrutinized with a view to . . . evaluating [his] interest or bias,” it did not, the defendant claims, tell the jury to consider Reamer’s status as a “self-confessed criminal.”
The defendant’s third claim is that the trial court erred in denying his motion in limine through which he sought to obtain a ruling prohibiting the state from impeaching him with three prior convictions.
While a defendant in a criminal case does enjoy a constitutional right to testify; State v. Harrell, 199 Conn. 255, 263, 506 A.2d 1041 (1986); “it has been recognized that [this right] does not carry with it a right to prohibit impeachment by prior convictions.” Id. Accordingly, under General Statutes § 52-145 (b), as interpreted by our Supreme Court, the state may for impeachment purposes introduce evidence showing that a defendant has been convicted of a crime if the maximum permissible penalty for that crime is imprisonment for more than one year. State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). Such evidence is not automatically admissible, however. The trial court must first determine that the prejudicial effect of its admission will not far outweigh its probative value. Id., 307.
The determination of whether to admit prior convictions is within the discretion of the trial court, and its decision will be overturned on appeal only where the defendant shows that an abuse of discretion occurred. State v. Binet, 192 Conn. 618, 624, 473 A.2d 1200 (1984). An appellate court should consider three factors when determining whether the trial court abused its discretion in deciding to admit prior conviction testimony: (1) the prejudice the defendant would have suffered by admission of the evidence; (2) the significance of the prior crime as bearing on the defendant’s truthfulness; and (3) the remoteness of the prior conviction. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984).
Where the state seeks to impeach a defendant by introducing evidence of his prior convictions, the possibility for prejudice is always present. The likelihood
The state is prohibited from admitting evidence that the defendant possessed “ ‘instruments or articles adapted to the commission of other crimes’ State v. Acklin, 171 Conn. 105, 114, 368 A.2d 212 (1976), quoting State v. Groos, 110 Conn. 403, 407, 148 A. 350 (1930); unless it can show that the evidence has probative force concerning the charges on which the defend
One fact in issue during the defendant’s trial was whether he, or another participant in the crime, had used or threatened to use a dangerous instrument. See General Stautes § 53a-134 (a) (3). A dangerous instrument is defined as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7). The defendant does not contend that a shotgun could not be a dangerous instrument within the meaning of General Statutes § 53a-3 (7), but rather asserts that there was insufficient testimony that the object used was a shotgun, in order to overcome the prejudicial effect its admission generated.
The defendant’s final claim is that he was denied effective assistance of counsel. Our Supreme Court has recently held that “all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing”; State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (1986); must be pursued in a habeas proceeding. Accordingly, we will not review this claim.
There is no error.
In this opinion the other judges concurred.
General Statutes § 53a-134 provides in pertinent part: (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or . . . (3) uses or threatens the use of a dangerous instrument . . . .”
General Statutes (Rev. to 1979) § 53a-122, provides in pertinent part: “(a) A person is guilty of larceny in the first degree when: ... (2) the value of the property or service exceeds two thousand dollars.”
The defendant also argues that application of the Blockburger test to larceny offenses would lead to results not intended by the legislature. It is true that “the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.” Albernaz v. United States, 450 U.S. 333, 334, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981). Our Supreme Court’s decision in State v. Boucino, 199 Conn. 207, 506 A.2d 125 (1986), however, resolves the question of whether the legislature intended to authorize cumulative punishment for convictions of robbery in the first degree and larceny in the first degree.
While the defendant did not except to that facet of the trial court’s charge to the jury which he now challenges, he did submit a written request to
The state, relying on the United States Supreme Court’s decision in Luce v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), urges this court not to review this claim of error because the defendant did not testify. Our Supreme Court, in State v. Harrell, 199 Conn. 255, 265, 506 A.2d 1041 (1986), chose to follow Luce. It also determined, however, to apply, prospectively only, the Luce requirement that a defendant testify to preserve the claim of error “in order that those defendants who have relied on previous decisions of this court that did not require a defendant to testify will not be prejudiced by this rule.” Id., 267. Accordingly, we will review the defendant’s claim of error.
To prove that the defendant committed robbery in the first degree, as charged in the information, the state had to prove that the defendant used or threatened to use immediate physical force upon another person and that the defendant, or another participant in the crime, either caused serious physical injury to another person or used or threatened to use a dangerous instrument. See General Statutes § 53a-134 (a) (1) and (3).
We note that while the degree of prejudice likely to result from admission of the defendant’s prior robbery and burglary convictions was high, so too was the probative value of those convictions. Both prior convictions were for crimes which reflect adversely on the defendant’s honesty. See State v. Nardini, 187 Conn. 513, 526, 447 A.2d 396 (1982) (breaking and entering with criminal intent implies dishonesty); State v. Geyer, 194 Conn. 1, 12, 480 A.2d 489 (1984) (crimes indicating larcenous intent imply a general disposition toward dishonesty); State v. Schroff, 3 Conn. App. 684, 688, 492 A.2d 190 (1985) (burglary conviction implies dishonesty). Prior convictions for crimes involving dishonesty, do “bear heavily on the credibility of one who has been convicted of them. The probative value of such convictions, therefore, may often outweigh any prejudice engendered by their admission.” State v. Geyer, supra. Additionally, these two convictions, five years old and ten years old, were not so remote that they no longer retained any “viability for impeachment purposes.” State v. Nardini, supra, 528. This is especially so since remoteness is less of a consideration where the prior convictions are for crimes involving dishonesty. See State v. Nardini, supra, 526.
The state asserts that this claim of error should not be reviewed because the defendant did not make a timely objection to admission of the testimony. Before the defendant objected on the grounds he now presses, he allowed the state to elicit the testimony that Baber saw a shotgun in the defendant’s apartment, that it was small shotgun and that Baber believed that a sawed-off shotgun is smaller than a regular shotgun. While the state is correct in pointing out that the defendant did not object as promptly as he might have, the omission does not render this claim unreviewable. The goal of requiring a prompt objection and exception, so that the trial court will be made aware of potential claims of error in time to take appropriate corrective action; State v. Jackson, 3 Conn. App. 132, 135, 485 A.2d 934 (1985); was fully satisfied by the defendant’s objection.
The defendant claims that testimony about the shotgun could not be admitted because of our Supreme Court's decision in State v. Williams, 182 Conn. 262, 438 A.2d 80 (1980). We disagree. While Williams is factually similar to this case, it is legally distinct. In Williams, the defendants were charged with robbery in the first degree. The Supreme Court determined that testimony very similar to the testimony in this case was insufficient to connect a gun found on one of the defendants with the crimes with which the defendants were charged. Accordingly, it held that the trial court erred in admitting the gun into evidence. The defendants in Williams, however, were charged with having committed robbery while armed with a deadly weapon. A deadly weapon has a very specific statutory definition: “any weapon, whether loaded or unloaded from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon or metal knuckles. . . .” (Emphasis added.) General Statutes § 53a-3 (6). Here, in contrast, the defendant was charged with having committed rob
The defendant also claims that the testimony was inadmissible because Fappiano had told the police officer investigating the case that he was sure that the object used to hit him had not been a gun. This is not, however, dispositive of the issue. It was within the province of the jury to reject this aspect of Fappiano’s testimony. “It is the jury’s role, not ours, to evaluate conflicting evidence.” State v. Waterman, 7 Conn. App. 326, 340, 509 A.2d 518 (1986).