State v. Adams

• Citation: 662 A.2d 1327,38 Conn.App. 643
• Decision Date: 13 September 1995
• Docket Number: No. 12303,12303
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Sherman ADAMS.

Page 1327

662 A.2d 1327

38 Conn.App. 643

STATE of Connecticut v. Sherman ADAMS.

No. 12303.

Appellate Court of Connecticut.

Argued Feb. 6, 1995.

Decided Aug. 8, 1995.

Certification Denied Sept. 13, 1995.

Donald D. Dakers, Sp. Public Defender, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Joseph T. Corradino, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and LANDAU and FRANCIS X. HENNESSY, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of twelve counts of burglary in the second degree in violation of General Statutes § 53a-102(a), ¹ six counts of larceny in the first degree in violation of General Statutes §§ 53a-119 ² and 53a-122(a)(2), ³ four counts of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124(a)(2), ⁴ one count of larceny in the fourth degree in violation of General Statutes §§ 53a-119 and 53a-125(a), ⁵ and six counts of stealing a firearm in violation of General Statutes § 53a-212(a). ⁶

The defendant claims that the trial court improperly (1)(a) denied his motion for judgment of acquittal as to four counts of larceny in the third degree and (b) exercised its discretion pursuant to Practice Book § 624 ⁷ in permitting the state to amend the information as to those four counts, (2) violated his right against double jeopardy under the Connecticut constitution by permitting his conviction of six counts of theft of a firearm and two counts of larceny in the first degree for the theft of the same firearms, (3) instructed the jury on the element of value as to the larceny counts, and (4) admitted into evidence a written statement of a state's witness.

The jury could reasonably have found the following facts. Between October 15, 1989, and November 15, 1991, twelve residences were burglarized, one in the town of Stratford and eleven in the town of Fairfield. Property was taken from all but one residence in the course of these crimes. On February 4, 1992, Curtis Wilson gave information, including a written statement, to the Fairfield police that implicated the defendant in all of the Fairfield burglaries. In a subsequent written statement given, on March 25, 1992, Wilson admitted that he had been involved in those burglaries with the defendant.

At trial, Wilson, the sole witness linking the defendant to the crimes, testified regarding the Fairfield burglaries, as well as the Stratford burglary. The police obtained no fingerprints of the defendant or Wilson at the crime scenes. The defendant testified that he was not involved in any of the burglaries and that Wilson, a former friend, had falsely implicated him.

I

In his first claim, the defendant asserts that the trial court improperly denied his motion for judgment of acquittal as to four counts of larceny in the third degree and improperly permitted the state to file an amended information as to those four counts in violation of Practice Book § 624 and his due process right to notice of the charges against him.

Before we begin our analysis, it is important to outline the procedural history of this case. The state originally filed a thirty count long form information against the defendant. Four of the counts alleged larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124(a)(1). ⁸ While § 53a-124(a)(1) requires that the object of the larceny be a motor vehicle valued at $5000 or less, the state's case against the defendant on each of the four counts was tried on the premise that property other than a motor vehicle, valued at less than $5000, had been taken. Subdivision (2), not (1), of § 53a-124(a) requires that the object of the larceny be property valued at more than $1000. See footnote 4, supra.

At the close of the state's case-in-chief, the defendant moved for judgment of acquittal as to the four counts, claiming that the state's evidence did not conform to the charged offenses. The trial court denied the defendant's motion. ⁹ Contemporaneously, the state moved to amend the original information, claiming that a scrivener's error had caused mistakes therein. The trial court denied the motion as presented, but ordered the state to file an amended information changing the statutory citations in the four pertinent counts from § 53a-124(a)(1) to § 53a-124(a)(2). ¹⁰ Citing Practice Book § 622, ¹¹ the trial court ruled that the amendment was proper because the defects in the original information were "minor" and because there was no actual defect in the substance of what the defendant was alleged to have committed. The trial court found that there had been a "mis-citation" of the statutory subdivision and further stated that "there's certainly no prejudice to the defendant whatsoever here. He has been placed on notice since early on of exactly what he was charged with, and what the state intended to prove."

Both the state and the defendant ask us to decide if the trial court properly exercised its discretion under Practice Book § 624 in permitting the state to amend the information after the close of the state's case. While the motion to amend the information was couched in terms of Practice Book § 624, however, the transcript is quite clear in revealing that the basis of the trial court's ruling was Practice Book § 622. The court stated, "I just want to make sure that you understand, and I do not find this to be a substantive amendment under [Practice Book s] 624. I'm finding this under [Practice Book s] 622." Regardless of whether our analysis is based on § 622 or § 624, we conclude that the trial court properly permitted the amended information.

The trial court may permit the state, after the start of the trial, to file an amended information to conform to the evidence. See Practice Book § 624; State v. Secore, 194 Conn. 692, 699, 485 A.2d 1280 (1984); State v. Mazzetta, 21 Conn.App. 431, 438, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). Also, Practice Book § 622 permits the trial court at any time to order such relief as is required to remedy any defect, imperfection or omission in an information. These decisions are "within the court's sound discretion and [are] subject to reversal only for an abuse of discretion. State v. Ramos, [176 Conn. 275, 276, 407 A.2d 952 (1978) ]. A substitute information may not prejudice the defendant's due process rights. State v. Vaughn, 20 Conn.App. 386, 389-90, 567 A.2d 392 (1989). The defendant must provide a specific showing of prejudice resulting from the state's delay in providing notice of the charge against which [he] must defend. State v. Ramos, supra, 176 Conn. at 279-80 ; State v. Waterman, 7 Conn.App. 326, 335, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986)." State v. Mazzetta, supra, 21 Conn.App. at 438, 574 A.2d 806.

The trial court's discretion pursuant to Practice Book § 624 is limited only by the requirement that no additional or different offense may be charged in and no substantive rights of the defendant may be prejudiced by an amended information. "Practice Book § 624 is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981)." State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). For this reason, when determining whether an amended information has charged different offenses for the purposes of § 624, "the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense." Id.

The defendant argues that the amendment to the information was improper because it permitted the state to charge a different offense. In support of this claim, he first posits that the original information actually charged four counts of larceny in the second degree in violation of § 53a-123(a)(2), ¹² in that each count alleged that the defendant had taken property "valued in excess of Five Thousand Dollars." Because the value element of § 53a-123(a)(2) differs from that of the substituted § 53a-124(a)(2), the defendant maintains that the trial court permitted the substitution of a different offense.

The state responds that it intended to charge the defendant with four counts of larceny in the third degree pursuant to § 53a-124(a)(2), not with either larceny in the second degree pursuant to § 53a-123(a)(2) or larceny in the third degree in violation of § 53a-124(a)(1). This is evident, the state contends, from the fact that each disputed count in the original information was entitled "LARCENY IN THE THIRD DEGREE." Moreover, the statute cited in each count was § 53a-124, which pertains to larceny in the third degree. Also, the state's evidence on these counts established that property other than motor vehicles valued at less than $5000 had been taken from the residences. The state argues, as it did before the trial court, that the prosecutor mistakenly cited subdivision (1) of § 53a-124(a), rather than subdivision (2), due to a recent revision in the statute. ¹³ Also, a scrivener's error had caused the counts to read "valued in excess of five thousand dollars" rather than "valued in excess of one thousand dollars." It is evident from the record that the trial court accepted the state's argument and considered the amendment to the information a technical rather than a substantive change. The trial court, therefore, allowed the substitution of no new or different offense.

This does not end our inquiry. We must determine whether the defendant was prejudiced in order to conclude whether the court abused its discretion in permitting the change. Even if the defendant had read the original four counts as charging him with larceny in the second degree in violation of § 53a-123(a)(2), as he now contends, we must conclude that he was not...