State v. Arnold

• Court: Supreme Court of Connecticut
• Writing for the Court: CALLAHAN
• Citation: 201 Conn. 276,514 A.2d 330
• Parties: STATE of Connecticut v. Earl ARNOLD.
• Decision Date: 26 August 1986

Page 330

514 A.2d 330 201 Conn. 276 STATE of Connecticut
v.
Earl ARNOLD. Supreme Court of Connecticut. Argued June 12, 1986.
Decided Aug. 26, 1986.

[201 Conn. 277]

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Alan D. McWhirter, Asst. Public Defender, with whom, on brief, was Raymond J. Quinn, Jr., Public Defender, for appellant (defendant).

Anthony M. Fitzgerald, Sp. Asst. State's Atty., with whom were Walter A. Scanlon, Chief Asst. State's Atty., and, on brief, John A. Connelly, State's Atty., for appellee (State).

Before [201 Conn. 276] ARTHUR H. HEALEY, SHEA, DANNEHY, CALLAHAN and MENT, JJ.

[201 Conn. 277] CALLAHAN, Justice.

The defendant was charged in a three count substitute information with murder and felony murder, kidnapping in the first degree and the commission of a capital felony. In a separate substitute information he was charged with larceny in the first degree and robbery in the first degree. Both informations arose from the same incident and were tried together to a jury. The defendant was convicted of all five counts and sentenced by the trial court to an effective sentence of seventy years. See General Statutes § 53a-35b. ¹ The defendant took separate appeals from his convictions on both substitute informations. He has, however, failed to brief any issue concerning his convictions[201 Conn. 278] of larceny in the first degree and robbery in the first degree and that appeal is considered abandoned. P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 162, 454 A.2d 1258 (1983); O'Connor v. Dory Corporation, 174 Conn. 65, 70, 381 A.2d 559 (1977).

All the charges stem from the abduction and subsequent death of Joanne DiChiara. DiChiara, a forty-four year old office manager, was last seen alive leaving the Westside Oyster Bar in downtown Waterbury, alone, at about 10:15 p.m. on August 17, 1983, after having had dinner. Her automobile, a 1980 Oldsmobile Cutlass, was found abandoned on Ward Street in Waterbury on August 23, 1983. Her naked, badly decomposed body was found in a wooded area near the Waterville section of Waterbury on August 26, 1983. An autopsy revealed that she had died of multiple stab wounds.

A police investigation of the crime led to the apprehension of the defendant on August 29, 1983. Between the date of the crime and his capture, the defendant told several acquaintances that he had killed the victim. On the day he was arrested, while in custody, the defendant gave three recorded statements to the police. In his first statement he admitted that he had participated in the robbery of the victim but said that he had only acted as a lookout and that a companion, Tyrone Dotson, had stabbed her. After Detective Peter Keegan, the police officer taking the statement, reminded the defendant that he had seen him in the downtown area several times the night of the crime and each time he was alone, the defendant repudiated the first statement. He then promised to tell

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the truth, and he gave a second written statement. In the second statement the defendant told Keegan that he had committed the crime alone, that he had needed money, and had followed the victim and accosted her as she entered her car. He stated he had a knife and had initially stabbed the victim in the neck unintentionally as they struggled while he [201 Conn. 279] attempted to cut the strap of her pocketbook. He said he then pushed the victim over to the passenger seat, entered the car, drove to another area and had sexual relations with her. The victim lost consciousness and the defendant drove to the wooded area where the body was eventually found. There, he said, he "dragged her into the woods by her legs ... [s]he was still breathing and I knew that she had seen my face and I stabbed her in the back a few times until she stopped breathing."

In a third, more extensive statement, transcribed by a court reporter and commenced approximately two and one-half hours after the second statement was concluded, the defendant told essentially the same story but said that when he pulled the victim into the woods he "didn't see her breathing or nothing like that" and "figured that she was already dead." He then said, however, "I figured she might be alive and she might not be alive," and that he stabbed her "two or three times."

At the trial the defendant testified that Dotson had stabbed the victim and that he had merely been the lookout for the robbery but that he had helped Dotson dispose of the body and had shared in the proceeds. The defense produced Dotson as a witness. He testified that he knew the defendant, having met him while they were both at Long Lane School several years before. He said that he had not seen him since that time, however, and that he had never in his life been in Waterbury prior to the date of his testimony. His appearance as a witness for the defense was understandably brief.

Wayne Carver, a pathologist and an assistant medical examiner, who performed the autopsy on the body of the victim, testified that the body had a total of twenty-four stab wounds in the neck, back and buttocks. In his opinion, the cause of the victim's death was multiple stab wounds to the trunk of her body. [201 Conn. 280] Because the front portion of the victim's body was completely decomposed, Carver testified he was unable to determine whether she had been stabbed in that area. He also testified there was no medical evidence indicating whether the victim was alive or dead when the stab wounds to her back were inflicted.

I

The initial count of the substitute information charged the defendant in the conjunctive with intentional murder ² and felony murder. ³ At the conclusion of the evidence

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and after final arguments, the trial court instructed the jury that, if it found either or both alternatives proven beyond a reasonable doubt, the jury should find the defendant guilty of murder. The defendant requested the trial court to instruct the jury that if it found him guilty of murder to specify in the verdict whether it found him guilty of intentional murder or felony murder or both. See State v. Duhan, 194 Conn. 347, 354, 481 A.2d 48 (1984). The trial court [201 Conn. 281] refused to do so, reasoning that proof beyond a reasonable doubt of either alternative would be sufficient to sustain a conviction of murder.

The jury returned a general verdict of guilty. The defendant does not dispute that there was sufficient evidence to convict him of felony murder. He claims, however, that there was insufficient evidence that the defendant intended to kill DiChiara to warrant a jury finding of intentional murder. He argues therefore that there was error because it is impossible to determine from the general verdict which alternative the jury relied upon in finding him guilty and he may have been convicted of intentional murder on insufficient evidence. We agree that it was error for the court to charge as it did but conclude that there was sufficient evidence to support a verdict of guilty of each alternative.

"Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon. Leary v. United States, 395 U.S. 6, 31-32, 89 S.Ct. 1532 [1545-1546], 23 L.Ed.2d 57 [201 Conn. 282] (1969); Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064 [1073], 1 L.Ed.2d 1356 (1957)." State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983); Cramer v. United States, 325 U.S. 1, 36 n. 45, 65 S.Ct. 918, 935 n. 45, 89 L.Ed. 1441 (1945); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984).

A general verdict of guilty to a single count charging alternative methods of committing the same crime may be upheld only if there is sufficient evidence to support the verdict as to each alternative. United States v. Berardi, 675 F.2d 894, 902 (7th Cir.1982); United States v. Tarnopol, 561 F.2d 466, 474 (3d Cir.1977). "The reason for this rule is that, with the 'one-is-enough' instruction that was given here, it would be impossible to determine whether the jury based its decision on an act for which there was insufficient evidence...." United...