208 Conn. 38 | Conn. | 1988
Lead Opinion
A jury found the defendant guilty of the crimes of robbery in the first degree, a violation of General Statutes § 53a-134 (a) (2),
Although the facts that the jury could reasonably have found are set forth in State v. Steve, supra, we summarize those pertinent to the issues in this appeal. The state in a substitute information charged the defendant with the crimes of robbery in the first degree, a violation of § 53a-134 (a) (2), and of assault in the first degree, a violation of § 53a-59 (a) (3). Prior to the trial, the defendant moved for a bill of particulars, requesting that the information state: (1) the specific nature
The bill of particulars filed by the state in response to this motion alleged the following: “The defendant, Carl Steve, is charged with the crime of Robbery in the First Degree in violation of Section 53a-134 (a) (2) of the Connecticut General Statutes, in that on or about April 13,1985, at or near 185 Walnut Street in the city of Waterbury at approximately 4:00 p.m., the defendant, in the course of committing a larceny used physical force upon another person, to wit: Scott Doyle, for the purpose of compelling the owner of such property, Scott Doyle, to deliver up the property and to prevent or overcome resistance to the taking of the property, and the defendant was armed with a deadly weapon. The defendant, Carl Steve, is charged with the crime of Assault in the First Degree in violation of Section 53a-59 (a) (3) of the Connecticut General Statutes, in that on or about April 13, 1985, at or near 185 Walnut Street in the city of Waterbury at approximately 4:00 p.m., the defendant under circumstances evincing an extreme indifference to human life recklessly engaged in conduct which created a risk of death to another person, to wit: Scott Doyle, and thereby caused serious physical injury to Scott Doyle.”
After the bill of particulars had been filed, the defendant orally requested that it be clarified with respect to the allegation of reckless conduct relied upon for the charge of assault in the first degree. The state’s attor
After the state had concluded the presentation of evidence in its case-in-chief, the defendant took the stand in his own defense and testified that a second person, Jeff Manson, had actually shot the victim and taken his property and that he, the defendant, had not participated. State v. Steve, supra, 702. This testimony was corroborated in part by a second witness, who testified that she had seen the defendant and Manson together moments after the incident. She testified that Manson was carrying a handgun and bragging about robbing and shooting a “white dude.” She also testified that while Manson was talking, the defendant sat silently and made no comment. A sister of the defendant also testified that she had seen Manson in possession of the gun immediately before and after the shooting. She further testified that she had seen the defendant accompany Manson during this time.
Before closing arguments the state’s attorney advised the defendant that he would request a charge on accessorial liability for the offenses. The court initially charged the jury on the elements necessary to
I
The only issue presented by this appeal is whether the Appellate Court correctly concluded that the trial court erred in instructing the jury on the theory of accessorial liability when the bill of particulars, as elucidated by the state, alleged that the defendant was the principal in regard to both the robbery and assault charges and that such error was harmful.
The state contends that the substitute information and bill of particulars, when read together, were sufficient to apprise the defendant of the possibility that he might be convicted as an accessory. It notes that “the fact that a defendant was not formally charged as an accessory [in an information or indictment] does not preclude his being so convicted.” State v. Crump, 201 Conn. 489, 493, 512 A.2d 199 (1986). The state
The Appellate Court ‘ ‘ acknowledge)^] that a defendant may be convicted on a theory of accessory liability even where he has not been formally charged by information with such.” State v. Steve, supra, 706. It concluded, however, that the bill of particulars under the circumstances of this case limited the state to proving that the defendant committed robbery and assault in substantially the manner described, which referred only to his participation as a principal. Id., 704-705. It determined that “the court’s charge to the jury was not in substantial conformity with the facts alleged in the state’s bill of particulars,” and that this variance prejudiced the defendant in the presentation of his defense. Id., 705.
The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise. State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). A bill of particulars limits the state “to proving that the defendant has committed the offense in substantially the manner described.”
We conclude that the Appellate Court was correct in determining that the defendant was prejudiced in
The Appellate Court determined that the trial court’s erroneous instructions on accessorial liability as to both charges constituted a constitutional violation because due process requires that a criminal defendant be given notice of the specific charge against him and “the jury was instructed to consider a theory of liability of which the defendant had no fair notice . . . . ” State v. Steve, supra, 707-708. Accordingly, it placed the burden on the state to prove that this error was harmless beyond a reasonable doubt and also held that the state had failed to meet this burden.
The state contends that the error in the case at bar was not of constitutional significance because any variance between the state’s pleadings and the court’s instructions on accessorial liability did not violate the defendant’s due process right to notice of the specific charge against him, and that, therefore, the defendant has the burden of demonstrating that it is more probable than not that the erroneous action of the court affected the result. See State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988); State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). It argues that the defendant has failed to demonstrate that the error was harmful.
We need not decide whether the error was of constitutional significance. Even if the burden were on the defendant to prove harmfulness, we would conclude that the court’s error more likely than not affected the result. The jury was never polled as to the basis for its verdict, and, therefore, it is uncertain whether the defendant was convicted as the principal offender, or as an accessory. State v. Steve, supra, 708. There was substantial evidence, however, suggesting that Manson was the principal in the robbery and assault. The
We therefore affirm the judgment of the Appellate Court.
In this opinion Peters, C. J., and Healey, J., concurred.
“[General Statutes] Sec. 53a-134. robbery in the first degree: class B felony, (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 (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”
“[General Statutes] Sec. 53a-59. assault in the first degree: class b FELONY, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person
“[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
The dissenting opinion concedes that “the state may be limited to proving that the offenses alleged were committed in substantially the manner described in the bill of particulars,” but concludes, nevertheless, that no rule of law “requires incriminating evidence from the defendant to be ignored by the state or the trial court.” Where the incriminating evidence from the defendant is wholly at variance from the manner in which the bill of particulars specifies the crime to have been committed, as here, we are aware of no case holding that a defendant may be convicted of the crime charged on the basis of that evidence simply because its source was his own testimony or that of his witnesses. The basic principle that the state must prove the crime in the manner alleged in the bill of particulars precludes a conviction based upon evidence that it was committed in a substantially different manner regardless of the source of that evidence. The cases cited in the dissenting opinion in support of its novel thesis, Johnson v. State, 518 N.E.2d 1073, 1077-78 (Ind. 1988), and Haskins v. State, 441 N.E.2d
The dissenting opinion does not address the question of whether the defendant may have been prejudiced in his defense by presenting evidence furnishing a basis for his conviction as an accessory in reliance upon the state’s oral amendment of its bill of particulars to the effect that the defendant had held the gun and shot the victim and the court’s assurance that “the conduct which was engaged in . . . was the use of a handgun . . . and that is what you have to defend against.”
Dissenting Opinion
with whom Co vello, J., joins, dissenting. I dissent. The majority opinion fails to mention that the bill of particulars and its oral amplification were based on the defendant’s sworn statement. In his statement the defendant admitted shooting Scott Doyle and otherwise confessed to actions that could reasonably have led to his conviction as a principal in the robbery and assault of the victim.*
It is, first of all, difficult for me to fathom what the state could or should have done other than frame the bill of particulars in accordance with the defendant’s confession. Also, I find it impossible to comprehend how the defendant was surprised or prejudiced in his defense by the submission to the jury of an alternate theory of criminal liability based on his own testimony. See State v. Roque, 190 Conn. 143, 156, 460 A.2d 26 (1983). The state did present evidence in its case-in-chief to prove that the crimes alleged were committed in substantially the manner charged in the substitute information and bill of particulars. It was the defendant in his testimony who proffered a role for himself in those crimes that was different from that alleged by the state. It appears a bit illogical that the defendant can, himself, offer incriminating evidence at variance with the bill of particulars and then complain that he was prejudiced by that variance. While the state may be limited to proving that the offenses alleged were committed in substantially the manner described in the bill of particulars, I know of no rule that requires incriminating evidence from the defendant to be ignored by the state or the trial court. In short, it was the evidence offered by the accused, not that offered by the state, that occasioned an accessory charge under § 53a-8 and the trial court did not err in giving it. Johnson v. State, 518 N.E.2d 1073, 1077-78 (Ind. 1988); Hoskins v. State, 441 N.E.2d 419, 424-25 (Ind. 1982).
Apparently this is no longer the law. According to the majority, even a defendant who confessed to being a principal, repudiated his confession at trial, and testified to possible accessorial liability is somehow surprised and prejudiced and entitled to a new trial because the jury was instructed as to that possible alternate theory of guilt under General Statutes § 53a-8. That is an incongruous result. I would reverse the Appellate Court.
The following statement was given by the defendant on June 13,1985, some four months prior to trial:
“That on the month of April 1985 at about 4 P.M., Jason Day, this dude I only know by the name of Jeff, and I were standing on the comer across the street from the Blue Note Cafe which is on Walnut Street, in Waterbury, Ct. That while standing here talking, this dude I know by the name of Steward Damin came up to us, and said, this white dude who had a lot of money wanted to buy some weed, and this is when Jeff said, lets get him. Then I saw this white dude was walking down Walnut Street in the*49 middle of the road. That this white dude came right up to us, and said, do you have any weed for sale, and this is when Jeff said, that he had Zudy for sale, which is a type of weed which has embalming fluid in it. That the white dude said, he didn’t want any, and that he was going to cop some ounces. Then he walked away, and I saw him walk across the street to the second building from the Blue Note, and I saw this Black dude on the second floor porch, and I heard him yell to the white dude to come around the back, and the white dude walked around the back of this building. That at this time this dude Jeff, and I ran over to the white dude, and Jeff handed me the gun he had which is 22. Then Jeff told the white dude to hand over the money, and the weed. . . . And the white dude said, no, and as he said this he swung at us, and this is when I shot him in the stomach with the gun I had.
“I also like to state that when Jeff handed me the gun it was cocked, and when I shot this white dude I didn’t really mean to do it.
“I also like to state that after I shot the white dude Jeff went into the white dude’s back pocket, and took his wallet out, and took the money out of the wallet, and threw the wallet on the ground. That after this Jeff took the gun from me, handed me some money which was about $70.00 or $80.00 dollars, and we both ran off, and as we were running Jason Day ran with us, but Jason Day didn’t have anything to do with it.
“I also like to state that this dude Jeff lives on the second floor in a yellow house on Hazel Street, in Wtby, Ct.
“I also like to state that the voluntary statement is the truth to the best of my knowledge. Nothing to follow.
“S/Carl Edward Steve”
E.g., “And, I see Jeff go in his pocket and pull out his wallet, took out the money, ran up to me and gave me some money. And, I ran, and the other boy ran down the street.”