State v. McCalpine
State v. McCalpine
Opinion of the Court
After a trial to the jury, the defendants were each found guilty of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and one count of kidnapping in the second degree in violation of General Statutes § 53a-94. From the judgment the defendants have appealed.
On appeal the defendants raise four claims of error. All relate to the trial court’s charge to the jury. As one of their claims the defendants allege that the court, by referring to a knife in its instructions, amended the information in each case to include acts not originally charged. Two claims focus on the court’s instructions regarding the defendants’ status as aiders and abettors. Finally, a fourth claim avers that the court erred
The jury could reasonably have found the following facts: The victim, Edward Nikogosian, was a limousine driver. At 9 p.m. on August 29,1978, Nikogosian, pursuant to a call from the company dispatcher, drove to La Guardia Airport. There he picked up a man who gave the name Chuck Mangione (in reality, Daniel Faila) and his two bodyguards. The bodyguards who are the defendants in this case gave their names as Alfred (Alfred McCalpine) and Role (Bobbie Williams).
Nikogosian drove the men into Manhattan to the Paramount Hotel and thereafter drove them to several locations throughout the city. When they returned to the hotel at approximately 2 a.m. on August 30, the police arrived and took the three passengers to the police station. Nikogosian did not know why they were arrested but he followed the police car to the station in order to get-paid for his chauffeuring. The two defendants were released but could not pay Nikogosian. Instead, he drove them back to the hotel and returned in the morning to drive them to the police station where Faila’s uncle was to pay him. He remained there with the defendants from 9:45 in the morning until 3 p.m. at which time Faila was released and paid Nikogosian $200. Nikogosian then again drove them around the city making various stops.
Finally the three asked to go to Hartford. Nikogosian requested an additional $250 before making the trip. Faila gave him $260 and after dinner they left for Connecticut.
When they entered the room, Faila went into the bathroom while Nikogosian waited for a pencil to make out the receipt. Suddenly, the two defendants covered Nikogosian's mouth with a cloth that smelled of chemicals. They were trying to push him onto the bed when Faila came out of the bathroom with a shotgun. Nikogosian relinquished his wallet holding nearly $900 and several credit cards. McCalpine then bound Nikogosian’s hands and legs. At some point, during the robbery, Williams held the shotgun. Williams also called out for someone to hand him a knife but Nikogosian was never touched by one. The men took the car key and left. Moments thereafter, Nikogosian partially untied himself and called the front desk for help. The police responded.
When the police arrived, they found Nikogosian on the bed, wrapped in sheets with his hands and legs tied. They also found a necktie that had been used to keep a washcloth in the victim’s mouth so that he could not speak.
The defendants were arrested the following day at Bradley Airport after Faila attempted to use one of the stolen credit cards.
During the course of the trial the jury heard evidence about and ultimately saw a boy scout jackknife that the state attempted to introduce as an exhibit. The evidence
A knife had been seized on the day following the attack from a hotel room registered to Daniel Faila. The court refused to admit the knife as an exhibit because it was not named in the search warrant and because the victim was unable to identify the particular knife. The court instructed the jury to disregard and forget about the knife. The state concedes that the evidence failed to disclose that the knife qualified as either a deadly weapon or a dangerous instrument. See General Statutes § 53a-3 (6) and (7).
The defendants rely on two brief excerpts from the court’s charge to establish their claim. After defining robbery, the court proceeded to discuss first degree robbery where a participant is armed with a deadly weapon or dangerous instrument. The court defined a deadly weapon as “a weapon from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles.” The court then added “[y]ou should know that under the definition a weapon from which a shot may be discharged, such a gun that is in proper functioning condition, whether or not loaded at the time of the offense, is a deadly weapon. Also a knife is defined in that definition.” The defendants argue that these scant references amounted to a variance and allowed the jury to consider guilt on an offense materially different from that charged in the information.
Applying this standard of constitutional review, we find no error. At the very inception of the charge the court instructed the jury that they were the sole judges of the facts and that their memories of the facts controlled. The court, thereafter, read to the jury the information charging the defendants with robbery in the first degree. The information specifically alleged that Daniel Faila, during the commission of the crime, “was armed with a deadly weapon, to wit: a shot gun . . . .” The written informations also were in the possession of the jury during its deliberations.
It is clear from the circumstances of this case that the court’s scant references to a knife not in evidence were not sufficient to constitute an unauthorized amendment of the information. We observe initially that the court read to the jury the information and the
The defendants’ next claim of error focuses on the court’s instructions to the jury regarding the defendants’ status as aiders and abettors under General Statutes § 53a-8.
The defendants present a bifurcated analysis in their brief. Essentially, the defendants’ claim is that the court committed error of constitutional significance when it failed to remind the jury of § 53a-8 during the portion of the jury charge defining robbery. The defendants claim that the court’s failure to repeat the intent to aid portion of its charge impermissibly removed that
The court read the text of § 53a-8 to the jury. We note that the defendants do not attack the validity of § 53a-8 or claim that the meaning of any of its terms is not plain. We observe further that the defendants’ argument that the instruction was confusing is based principally upon one sentence removed from context.
The defendants’ claim that § 53a-8 was not referenced to the court’s instruction on robbery does not raise a constitutional question.
The defendants also assert that the “intent” element of § 53a-8 requires that the aider and abettor possess the intent to aid the commission of the basic crime as well as the aggravating circumstance.
The defendants not having raised the present claim in the court below now seek review on the basis of State v. Evans. Because it appears that a question of constitutional dimension is raised by the court’s alleged failure properly to explain the “intent” element required by § 53a-8 we will accord this claim appellate review. State v. Evans, supra, 70.
Nothing we said in State v. Harrison, 178 Conn. 689, 425 A.2d 111 (1979), on which the defendants heavily rely is to the contrary. In Harrison, the defendant was charged as an accessory to attempted robbery. Factually the case involved an unsuccessful robbery of a gas station by two men, one of whom was armed with an operable firearm. The applicable statutes were General Statutes §§ 53a-8, 53a-49 (a) (2), and 53a-134 (a) (2). The court (at pp. 694-95) noted that the accessory statute, § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged. The court thereafter indicated that the state in that case had to prove beyond a reasonable doubt that the defendant: “(1) intended to aid the two principals in robbing the gas station, and (2) intended to deprive another of property.” Contrary to the defendants’ allegations, the case
Finally, the defendants claim error in the trial court’s failure to instruct the jury on the second count that they could find that the victim’s abduction was merely incidental to the commission of another crime and, thus, would not support a conviction of kidnapping in the second degree. The defendants did not file a request to charge on this issue or voice an objection and exception to the court’s charge. Accordingly, review is sought on the basis of plain error; Practice Book § 3063; and State v. Evans.
The error claimed by the defendants is neither plain error nor does it fall within the Evans rule. It is, therefore, not reviewable by this court. State v. Johnson, 185 Conn. 163, 177, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983).
There is no error.
In this opinion Peters, Armentano and Grillo, Js., concurred.
Daniel Faila was not tried with the defendants and is not a party to this appeal.
The pertinent informations provided:
“AMENDED INFORMATION CR9-41787
IN THE SUPERIOR COURT OF THE STATE OF CONNECTICUT
Middlesex County, January Term, 1979, John T. Redway, State’s Attorney for the County of Middlesex, accuses ALFRED McCALPINE, 17D Deleaware Jackson Apt. Tuscaloosa, Alabama, of ROBBERY IN THE FIRST DEGREE and charges that at the Town of Cromwell on or about the 30th day of August, 1978, at approximately 9:45 p.m., at the Knights Inn, Route 72, the said ALFRED McCALPINE, aided by other participants actually present, namely Bobbie Williams, Daniel Faila, aka Daniel Lauretta, aka Anthony Morino, did commit a robbery of Edward Nikogosian and in the course of the commission of the crime the said Daniel Faila, was armed with a deadly weapon, to wit: a shot gun, in violation of Section 53a-134 (a) (2) of the General Statutes.”
“AMENDED INFORMATION CR9-41785
IN THE SUPERIOR COURT OF THE STATE OF CONNECTICUT
Middlesex County, January Term, 1979, John T. Redway, State’s Attorney for the County of Middlesex, accuses BOBBIE WILLIAMS, 645 Hughes Street, Atlanta, Georgia, of ROBBERY IN THE FIRST DEGREE and charges that at the Town of Cromwell on or about the 30th day of August, 1978, at approximately 9:45 p.m., at the Knights Inn, Route 72, the said BOBBIE WILLIAMS, aided by other participants actually present, namely Daniel Faila, aka Daniel Lauretta, aka Anthony Morino and Alfred McCalpine, did commit a robbery of Edward Nikogosian and in the course of the commission of the crime the said Daniel Faila, aka Daniel Lauretta, aka Anthony Morino, was armed with a deadly weapon, to wit: a shot gun, in violation of Section 53a-134 (a) (2) of the General Statutes.”
General Statutes § 53a-8 provides: “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 defendants’ claim of confusion rests principally on the following excerpt: “whether or not either defendant here as an accessory or accomplice or actually by doing physical acts, did abduct Mr. Nikogosian.” The defendants claim that the language created confusion as to the distinction between a principal and an accessory.
Defense counsel in attempting to distinguish State v. Cannon, 185 Conn. 260, 440 A.2d 927 (1981), argued that although the claim herein may be equal to that made in State v. Cannon, the case may nevertheless be distinguished on the basis of the instructions given by the trial court.
The defendants were both charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). That section provided that: “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 . . . .”
Robbery is defined by § 53a-133 as follows: “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.”
The defendants concede that the crime of robbery in the first degree; General Statutes § 53a-134; imposes vicarious liability on a defendant when he commits a robbery with another person who, although unbeknownst to him, is armed with a deadly weapon. They insist, however, that the status of being an accessory does not impose the same liability.
Concurring Opinion
(concurring). I agree with all of the court’s opinion except the portion of the discussion of accessory liability which intimates that the mental state required of an accomplice who is charged with a crime is something less than that which must be proved against a principal. “The prevailing view is that the accomplice must . . . have the mental state required for the crime of which he is to be convicted on an accomplice theory.” LaFave & Scott, Criminal Law § 64, p. 506. We adopted this view in State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979): “The accessory statute, § 53a-8, sets forth the element of intent as a twofold
In stating that an accomplice need not “endorse every act of his coparticipant in crime” or “possess the Intent to commit the specific degree of the robbeiy charged or the intent to possess a deadly weapon” the majority opinion appears to water down these principles. The fact that no specific intent is made an element of the crimes for which the defendants were convicted, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and kidnapping in the second degree in violation of General Statutes § 53a-94, does not remove the necessity for proof of a general intent to perform the acts which constitute the offense. State v. Martin, 189 Conn. 1, 13, 454, A.2d 256 (1983); State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971). Unless it was the “conscious objective” of each defendant that he or another participant perform all of the acts necessary to constitute the particular crime, he would not be guilty of it. This requirement must extend to those acts which enhance the degree of the crime as well as to those which constitute the basic crime itself. Otherwise an accomplice might be convicted of an offense although he did not entertain the same mental state required by statute for conviction of the principal.
Reference
- Full Case Name
- State of Connecticut v. Alfred McCalpine; State of Connecticut v. Bobbie Williams
- Cited By
- 31 cases
- Status
- Published