State v. Williams
State v. Williams
Opinion of the Court
Gregory Fulton, Rodney Kyles and Charles Williams were charged in separate informations with conspiracy to commit robbery in the first degree in violation of § 53a-48 of the General Statutes
Only a brief statement of the facts is necessary for the purposes of this appeal. Shortly after nine o’clock on the evening of January 23, 1977, Edward Funaro, after closing Visel Drugstore on Dixwell Avenue in New Haven, walked towards his car carrying a metal cash box which contained approximately $10,000 in cash and $2400 in checks. As he was proceeding to the car, he was distracted by a noise, turned to look, and saw a figure pointing something at him. He then heard a squirting noise and felt something liquid hit him. He was thereafter attacked and struck on the head, went limp, and the cash box was snatched from him. He later described the blow as being inflicted by something “harder than a fist” but he did not know what the object was. The blow caused a gash which required seven stiches to close.
Immediately after being attacked Funaro got up from the ground and yelled to Michael Pacelli, a fellow employee who had left the store with him and who had headed towards his own car parked some distance away. In response Pacelli ran in the
A short time later, a car matching the one Pacelli described was found by the police. It was locked, its hood was warm, and the ignition lock appeared not to have been tampered with. The police then went to the nearby apartment of the registered owner of the car where they arrested the defendants. They found the metal cash box containing checks made out to Yisel’s Drugstore in a bedroom and a .38 caliber gun in the defendant Kyle’s possession.
At the conclusion of the trial, the court instructed the jury that if they found any one of the defendants guilty of a certain degree of robbery they would have to find him guilty not only of conspiracy but of the same degree of conspiracy.
Where, however, the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial, this court will review the claimed error. State v. Evans, supra, 70.
Thus, despite the defendants’ failure to raise this issue below we address it because of the claim that the challenged portion of the charge misled the jury thereby depriving the defendants of their right to a fair trial; State v. Rose, 169 Conn. 683, 688, 363 A.2d 1077 (1975); and review may be made upon the record. State v. Chesney, 166 Conn. 630, 353 A.2d 783 (1974); State v. Evans, supra.
To determine whether an error in a charge constitutes reversible error, the court must consider
On the other hand, “[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statements but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case; Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 [1933].” State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977). The charge should be examined to see whether it fairly presents the case to the jury so that no injustice is done under the rules of law to the legal rights of the defendant. Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202 (1960); Pratt, Read & Co. v. New York,
Viewing the charge as a whole, as we must; Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 570, 316 A.2d 394 (1972); State v. Tropiano, supra, 433; we are compelled to conclude that the jury were left with the impression that if they found the defendants guilty of robbery in the first degree and they found them guilty of conspiracy, they would have to find them guilty of conspiracy to commit robbery in the first degree. Similarly, if they found the defendants guilty of robbery in the second degree and they found them guilty of conspiracy, they would have to find them guilty of conspiracy to commit robbery in the second degree.
We conclude that the court’s charge did not meet the requirement that “[t]he instructions to the jury ... be accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict.” Berniere v. Kripps, 157 Conn. 356, 358, 254 A.2d 496 (1969); State v. Crowe, 174 Conn. 129, 134-35, 384 A.2d 340 (1977).
One other matter merits consideration: as already noted, § 53a-134 (a) (2) requires proof that a defendant or another participant in the crime was armed with a deadly weapon. Our examination of the record reveals that there was no evidence what
We have also examined the constitutional claims of each defendant that the trial court erred in denying each defendant’s respective motion to dismiss and suppress and conclude that the court did not err in its denial of the motions.
Because of the necessity of a new trial, the remaining issues briefed by the defendants do not require discussion.
There is error in the three appeals, the judgments are set aside except as to the third count of the Kyles’ judgment, and a new trial is ordered.
In this opinion Cotter, C. J., Peters and Healey, Js., concurred.
Section 53a-48 of the General Statutes provides in pertinent part: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
Section 53a-134 of the General Statutes 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 . . . (2) is armed with a deadly weapon.”
Kyles was also charged and convieted of carrying a revolver without a permit in violation of § 29-35 of the General Statutes. The claimed error, if any, as to this count, however, has not been pursued and is therefore considered abandoned.
All three defendants have also briefed issues concerning the state’s comments on an adverse inference, the admission into evidence of a gun and a can of Halt, and fourth amendment claims regarding their arrests and the seizure of evidence. Kyles and Williams have also raised a Bruton issue; Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) ; concerning an incriminating statement made by Fulton to the police. Williams and Fulton have raised a double jeopardy issue and Fulton has raised a Wharton rule issue; see Iannelli v. United States, 420 U.S. 770, 773, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975); concerning his conviction on the conspiracy count. Because of our disposition of this case we need not consider any of these issues with the exception of the one relating to the admissibility of the gun.
“In other words, ladies and gentlemen of the jury panel, if you decide that any one of the accused are guilty of committing robbery in the first degree, you would also find them guilty of conspiracy to commit robbery in the first degree. If you find that they would be guilty of robbery in the second degree, you would find that they would be guilty of a conspiracy to commit robbery in the second degree. And, that would also apply to robbery in the third degree.
“But, let’s not lose sight of the fact that you may, in your own good will, find the defendants not guilty of any crime.
“In other words, what I am saying to you is that you cannot find anybody guilty of a robbery and not guilty of a conspiracy. You cannot find a conspiracy without a robbery. . . .
“Now, as I explained to you, if you do not find that a robbery is committed in the first degree, you eannot find a conspiracy to commit that robbery in the first degree. If you find that a robbery in the first degree was committed and that the accused are guilty as charged, they will also be guilty of the charge of conspiracy to
“Now, if you find them not guilty of these charges in the first degree, then, as I explained to you, lesser included offenses of robbery in the second degree and conspiracy to commit robbery in the second degree must be considered. . . .
“Perhaps by way of example, I might say to you this that should you decide that the defendants are guilty of say robbery in the third degree, you find him guilty of robbery in the third degree and conspiracy to commit robbery in the third degree, you would not have to consider larceny at all as far as the specific charge of larceny by possession—Pm sorry, maybe I might have missed that. I guess I didn’t.”
“I think I also told you that in trying to straighten out in your minds, and in mine, what your findings could be as a result of the guilt or innocence of these charges, perhaps I might not have explained it to you sufficiently. I would like to point out to you that you may find the accused, individually or collectively, or I shouldn’t say collectively, but individually guilty of the charge of conspiracy and robbery, but you may find him guilty of the charge of robbery but not conspiracy. I hope I have that straight. It could be either or. It could be either finding them guilty of conspiracy, not guilty of robbery; finding of guilty on robbery and not guilty on conspiracy. I hope you understand it could be either or. Certainly a finding of not guilty of any of the charges.”
Concurring Opinion
(concurring). I agree that the court’s instructions on conspiracy to commit robbery were in error and that a new trial is required. I cannot agree, however, that “there was no evidence whatsoever offered to show that a deadly weapon was used in the commission of the robbery” and that the court erred in admitting the gun into evidence.
Section 53a-3 (6) of the General Statutes defines the term “deadly weapon” as used in § 53a-134 (a) (2) as follows: “ ‘Deadly weapon’ means 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.) The victim testified that after he had closed the store and walked to his car with the cash box, he heard a distracting noise, turned to look, and saw a figure
For precisely this reason, it would appear, none of the defendants has challenged his conviction on these grounds. Instead they attack the trial court’s admission of the gun on the grounds that the gun found in Kyles’ coat pocket between twenty and twenty-five minutes after the commission of the crime, while he was still wearing his coat, was not sufficiently connected by other evidence to that crime. If we decide the issue raised under the cases briefed, which in my opinion constitute controlling precedent for this case, then the gun was properly admitted because: (1) it tended to establish a fact in issue, whether a deadly weapon was used, and (2) it tended to corroborate other direct evidence in the case, the victim’s testimony regarding the manner in which he was attacked when his money was taken. State v. Acklin, 171 Conn. 105, 114, 368 A.2d 212 (1976). There we said: “ ‘Evidence as to articles found in the possession of an accused person subsequent to the time of the commission of
Reference
- Full Case Name
- State of Connecticut v. Charles Williams; State of Connecticut v. Rodney Kyles; State of Connecticut v. Gregory Fulton
- Cited By
- 54 cases
- Status
- Published