210 Conn. 199 | Conn. | 1989
The defendant, Bernard Thomas, was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and carrying a dangerous weapon in violation of General Statutes § 53-206. He received a total effective sentence of thirty-three years imprisonment, suspended after twenty years.
Hartford police officer Michael Gerasimovich was less than one block away from the store when he received the report of the silent alarm. Gerasimovich responded without delay and, upon his arrival at the scene, he observed the defendant standing in the open doorway of the store, gesturing him to come inside. The defendant told Gerasimovich that he was the victim of a robbery and that the perpetrator was in the back room of the store. Gerasimovich did not recognize the defendant as a store employee, and when the defendant
The store’s surveillance camera recorded much of the incident. The video tape showed a man, identified as the defendant, behind the store counter attempting unsuccessfully to open the cash register. The defendant’s scuffle with the police officers was also recorded on the video tape. The video tape was entered into evidence at the trial and viewed several times by the jury and the witnesses. The defendant did not testify on his own behalf at trial nor did he present any witnesses or evidence.
I
The defendant moved for judgment of acquittal on the charge of burglary in the first degree on three separate occasions during the course of the trial: once at the close of the state’s evidence, once after the defense rested, and a final time following the jury’s return of a verdict of guilty. See Practice Book §§ 883, 899.
In his first motion for judgment of acquittal on the burglary charge, made at the close of the state’s evidence, the defendant contended that the evidence introduced by the state at trial was insufficient to establish that his actions fell within the parameters of burglary in the first degree as that crime is defined by §§ 53a-101 (a) and 53a-100. Specifically, the defendant argued that he could not have “enter[ed] or remainjed] unlawfully” on the premises, as required by § 53a-101 (a), because that element of the crime, as fully defined by § 53a-100 (b), can occur only where the premises are “not open
In response to the defendant’s argument, the trial court noted that a diagram of the A-l convenience store was introduced into evidence at trial and that this diagram included a depiction of the store counter and the area behind the counter. The court stated that an inference could be drawn that the area behind the counter, where the defendant concededly went in an attempt to open the cash register, was for employees only and thus not open to the public.
On appeal, the defendant has shifted the focus of his argument, claiming that, since an unlawful entry or remaining under § 53a-101 (a) must occur “in a building,” the trial court’s ruling that there was sufficient evidence to establish that an unlawful entry or remaining occurred in the area behind the store counter can be upheld only if that area may be considered a “building” within the meaning of the statute. The defendant maintains, however, that the area encompassed by the store counter cannot, under any reasonable interpretation, be regarded as a “building” as that term is used in the burglary statute. Thus, it is the defendant’s position that the state’s evidence was insufficient to establish this essential element of the crime, and that the trial court therefore erred in denying his motions for judgment of acquittal. We agree.
For purposes of first degree burglary under § 53a-101 (a), the term “building” is defined separately in § 53a-100 (a) (1) as follows: “Where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the actor is, in addition to being a part of such building, a separate building . . . . ” We conclude that under no stretch of the statutory language can the counter area of the A-l convenience store be
The state, however, proffers an alternate ground for sustaining the trial court’s ruling that merits brief discussion. See Practice Book § 4013 (a) (1). Conceding that the only “building” involved in this case with respect to the burglary charge is the A-l convenience store itself, the state contends, nevertheless, that the defendant “unlawfully remained” in the store in violation of § 53a-101 (a). Since § 53a-100 (b), the relevant definitional section, provides that an unlawful remaining can occur only when the premises are “not open to the public,” the fact that the store was open for business to the public at the time of the alleged burglary, would appear to render the state’s position untenable. The state, however, advances a novel interpretation
The state’s argument is an innovative one. We refuse, however, to adopt this unique construction of the phrase “not open to the public” for purposes of defining an “unlawful remaining.” Rather, we find that the comments of the Connecticut commission to revise the criminal statutes more accurately reflects the type and scope of activity that was intended by the legislature to constitute an unlawful remaining under §§ 53a-101 (a) and 53a-100 (b). The commission commented as follows: “enter or remain unlawfully. The purpose of this definition is to make clear that only the kind of entry or remaining which is likely to terrorize occupants is prohibited by the crime of burglary. Thus, when the building is, at the time, open to the public, or the actor is otherwise licensed or priviliged to be there, the element of terror is missing and the requirement is not met. This does not mean, however, that an initial lawful entry followed by an unlawful remaining would be excused. For example, A enters an office building during business hours—a lawful entry
Accordingly, we conclude that the court erred in failing to grant the defendant’s motions for judgment of acquittal on the charge of burglary in the first degree and, therefore, we remand the matter to the trial court with direction to set aside the judgment of conviction on that charge and to render a judgment of acquittal thereon.
II
The defendant next claims that the trial court erred in failing to order a timely correction of the state’s amended information and that he was denied a fair trial as a result. The following facts are relevant to this claim. The four count amended information alleged, inter alia, that the defendant committed the crime of “carrying dangerous weapons” (emphasis added) in violation of General Statutes § 53-206.
During the course of the trial, the state offered two weapons into evidence: a knife with a six-inch blade, and a straight razor, both of which were found on the defendant’s person during his struggle with the police officers. The defendant objected to the admission into evidence of the razor as irrelevant since, under the final
The defendant claims on appeal that the variance between the charging documents on the weapons charge, coupled with the introduction into evidence of both the knife and the straight razor, confused the jury by leaving them “with the erroneous impression that the defendant was being charged with the possession of more than one weapon.” The defendant appears to argue that this variance, taken together with the admission into evidence of the straight razor, misled the jury into believing it could convict the defendant on the weapons charge on the basis of his possession of the straight razor, when in fact the state was limited, under the bill of particulars, to proving that charge by demonstrating that the defendant was carrying a knife only.
The trial transcript discloses that, after the straight razor was admitted into evidence, the members of the jury were immediately given a cautionary instruction by the court that it was being offered not as the weapon used in any of the crimes charged, but solely to demonstrate the intent of the defendant to commit those crimes.
Any potential prejudice to the defendant that might otherwise have arisen due to the uncorrected variance between the charging documents on the weapons possession charge was, in our view, neutralized by the court’s instructions to the jury. See State v. Avis, supra, 308. Accordingly, we conclude that the court’s failure to order a timely correction of the variance between the amended information and the final bill of particulars was harmless error.
Finally, the defendant assigns error to the court’s denial of his motion for a new trial. See Practice Book § 902.
There is error in part, the case is remanded with direction to set aside the judgment of conviction on the charge of burglary in the first degree and to render judgment of acquittal thereon.
In this opinion the other justices concurred.
The defendant was sentenced on the charges as follows: first degree kidnapping, eighteen years, suspended after five years; first degree robbery, fifteen years, to run consecutively with the sentence for kidnapping; first degree burglary, seven years, to run concurrently with the sentence for robbery; carrying a dangerous weapon, two years, to run concurrently with the sentence for robbery.
Practice Book § 883 provides: “Motions for a directed verdict of acquittal and for dismissal when used during the course of a trial are abolished. Motions for a judgment of acquittal shall be used in their place. After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon his own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense
Practice Book § 899 provides: “If the jury return a verdict of guilty, the judicial authority, upon motion of the defendant or upon his own motion, shall order the entry of a judgment of acquittal as to any offense specified in the verdict, or any lesser included offense, for which the evidence does not reasonably permit a finding of guilty beyond a reasonable doubt. If the judicial authority directs an acquittal for the offense specified in the verdict, but not for a lesser included offense, he may either:
“(1) Modify the verdict accordingly; or
“(2) Grant the defendant a new trial as to the lesser included offense.”
The exchange between defense counsel and the court concerning this issue was as follows:
“Ms. Storey: The store here wasn’t closed, had not been closed, and I think the State’s evidence cannot sustain a burglary in the first degree charge. I think also there is a—
“The Court: There was testimony in this case from Mr. Dugan. That [store] counter was drawn at the Court’s request, it delineates an area on your diagram to the left of the entranceway, or corridor that’s for employees only.
“Ms. Storey: I don’t believe he said it was for employees only. I believe he drew the counter on there, and he did testify there were no signs, I believe that said employees only. There were no chains across. It doesn’t have a separate locked door.
“The Court: There is an inference to be drawn that the area where the register, the gas counter and the other machinery are located on your diagram, the left front are not available to the public. The testimony is clear in reference that it is not for public use.”
The second and third motions for judgment of acquittal made by the defendant on the burglary charge were denied by the court without oral argument from counsel.
The state offers no rebuttal to the defendant’s attack upon the court’s ruling and, in fact, concedes that the counter area is not a “building” for purposes of the burglary statute. The state does, however, offer alternate grounds upon which the court’s ruling may be affirmed; see Practice Book § 4013 (a) (1); which are addressed later in this opinion.
Our ruling on this point renders moot the defendant’s second claim of error regarding the court’s instructions to the jury on the burglary charge and, thus, we decline to address it.
“[General Statutes] Sec. 53-206. carrying and sale of dangerous weapons, (a) Any person who carries upon his person any slung shot, air rifle, BB. gun, blackjack, sand bag, metal or brass knuckles, or any dirk knife, or a switch knife, or any knife having an automatic spring release
“ ‘The bill of particulars does not become part of the [information]. See 4 Wharton, Criminal Law and Procedure, § 1870. See generally 41 Am. Jur. 2d, Indictments and Informations, §§ 168-65.’ State v. Glass, 107 R.I. 86, 92, 265 A.2d 324 (1970). It does, however, limit the state to proving that the defendant committed an offense ‘in substantially the manner described.’ State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976). . . .” (Citations omitted; brackets in original.) State v. Roque, 190 Conn. 143, 154-55, 460 A.2d 26 (1983). The state’s final bill of particulars mentions only that a knife, not a straight razor, was used by the defendant in connection with the crimes charged. Thus, with respect to the weapons charge, the state was limited to proving that the defendant was carrying a knife.
Practice Book § 833 provides: “When any bill of particulars is ordered, an amended or substitute information shall be filed incorporating its provisions.”
“[The Court:] I want the record to reflect the jury is back. A straight razor with the tag in your absence was marked as a full exhibit. If you will recall in my preliminary suggested instructions to you, it is possible in a trial for something to be admitted for a limited purpose and not for other purposes. I am instructing you that this razor has been admitted as a full exhibit. As you may recall, there are four counts. The bill of particulars indicates the State claims a confrontation by the defendant with the clerk with a knife. Now, the knife is already marked Exhibit A. This razor, Exhibit E, is offered not to show a use under any of the counts as the instrument used. This razor is used for the purposes of showing or intending to show
“[The Court:] As to the fourth count, the defendant is charged with carrying a dangerous weapon. A person who carries on his person any knife, the edged portion of the blade of which is four inches or over in length, unless such person has been granted a written permit authorizing the person to carry such weapon or instrument within the town, such person commits the crime of carrying a dangerous weapon. . . . There has been evidence adduced that there was no written permit issued and signed by the police or the chief of police authorizing Bernard Thomas . . . to carry a knife. And if you believe the elements someone who carries on his person a knife the edged portion of the blade which is four inches or over unless the person has a permit such person without a permit commits the crime of carrying a dangerous weapon.”
Practice Book § 902 provides: “Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these rules or with other requirements of law bars his asserting the error, the judicial authority shall grant the motion:
“(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or
“(2) For any other error which the defendant can establish was materially injurious to him.
“If the trial was by the court and without a jury, the judicial authority, with the defendant’s consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment.”
In view of the fact that the defendant’s seven year sentence on the burglary charge was to run concurrently with his fifteen year sentence on the robbery charge; see footnote 1, supra; resentencing of the defendant is unnecessary.