State v. Beaulieu

• Decision Date: 06 April 1973
• Citation: 164 Conn. 620,325 A.2d 263
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Raymond BEAULIEU.

Page 263

325 A.2d 263

164 Conn. 620

STATE of Connecticut v. Raymond BEAULIEU.

Supreme Court of Connecticut.

April 6, 1973.

Richard W. Tomeo, Special Public Defender, for the appellant (defendant).

Richard F. Banbury, Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty. for the appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

The defendant, Raymond Beaulieu, was found guilty by a jury of the crime of breaking and entering with criminal intent in violation of § 53-76. In his appeal from the judgment rendered on the verdict, he has assigned as error (1) the court's refusal to grant two oral motions for a bill of particulars and his motion in arrest of judgment; (2) its refusal to replace the public defender representing the defendant with another court-appointed attorney; (3) a ruling on evidence; (4) a portion of the motion to set aside the verdict, court's charge; (5) the denial of the defendant's motion to set aside the verdict, and (6) the court's failure to find certain facts claimed to have been admitted or undisputed, and its finding of certain facts and conclusion of fact without evidence.

In considering first the several errors claimed with respect to the finding, those which the defendant failed to brief or argue are treated as abandoned; McTigue v. New London Education Assn., 164 Conn. 348, 321 A.2d 462; State v. Grayton, 163 Conn. 104, 109, 302 A.2d 246; and we do not find that he is entitled to any of the corrections which he has pursued.

The following is a statement of facts with respect to which the state offered evidence to prove and which it claimed to have proved. On October 22, 1970, at approximately 4:40 a.m., Officer Clarence W. Heritage of the Manchester police department arrived at the Manchester Country Club in response to a radioed message that the alarm system at that location had been activated. He arrived at the club about one minute after receiving the call and he saw an individual emerging from the barroom window of the clubhouse building. As Officer Heritage approached, this individual dropped an article subsequently identified as the cash tray from the club's cash register and ran into a brush area of the golf course adjacent to a large reservoir. This area of the golf course was illuminated by huge floodlights and Heritage observed that the fleeing individual was about five six tall and was wearing dark pants and 'kind of a blue iron-gray jacket.' The brush area into which the individual ran was completely surrounded by open areas of the golf course and by the reservoir. When he chased this individual into the brush area, Heritage heard a small splash, but there were no swimmers in the reservoir. Within minutes other police officers, including Officer Ronald Roberts, arrived, the brush area was sealed off preventing anyone from leaving undetected, and the area was searched. Twenty-five or thirty minutes thereafter the defendant was found by Roberts in the brush area crouched beside the reservoir. During that time no one other than police officers and the defendant entered or left the brush area. When found, the defendant was wearing dark pants and a T-shirt, although the temperature was approximately 30 to 35 degrees, and about 100 to 150 feet from the spot where the defendant was apprehended Heritage found the jacket which had been worn by the individual he had pursued. At daybreak the brush area was again searched and no one was found. In the pocket of the jacket, Heritage found $10.02 in change and two sets of keys. One set of keys was to the interior doors of the clubhouse and had been left the preceding evening by the club bartender in a locked drawer next to the cash register. The other set included a type of key which, according to Heritage, was used to turn burglar alarms off or on and which, according to the defendant's witness Dominic Galizia, was similar to a type used to turn off a burglar alarm. An inspection showed that the window from which the individual had been observed emerging had been 'jimmied' and two television sets and some change were missing from the clubhouse. The two television sets were found the same morning outside the clubhouse building.

The defendant pleaded not guilty on January 26, 1971, to an amended information in two counts. The first count accused him of 'Breaking and Entering With Criminal Intent,' and charged that 'at the Town of Manchester, on or about the 22nd day of October, 1970, the . . . (defendant), with intent to commit a crime therein, did break and enter a building in the possession of The Manchester Country Club . . . in violation of Section 53-76 of the General Statutes, Revision of 1969.' The second count, later dismissed on the defendant's oral motion, charged the defendant with larceny at the same date and place in violation of § 53-63. On March 12, 1971, when the case was reached for trial, the defendant, who was then represented by the public defender, personally, orally and for the first time moved for a bill of particulars and, as a consequence, at the suggestion of the court, the state's attorney read into the record a detailed statement of the facts claimed to constitute the crime charged, following which the court observed that 'nothing more could be revealed even if I ordered it.' Although the court thereafter formally denied the motion, it for all practical purposes informally and orally granted the equally informal, oral and very tardy motion. The defendant's oral motion for a bill of particulars was renewed on March 16, 1971, before the trial judge who, on reviewing the prior proceedings, ordered the trial to proceed without formally denying the motion but, in effect, doing so after again summarizing for the defendant the specific charges against him. A motion in arrest of judgment on the ground of insufficiency of the information was filed on March 19 and was denied April 1, 1971, when judgment was rendered. Since the same issue is raised by the denial of the two motions for a bill of particulars and by the subsequent denial of the motion in arrest of judgment, these two assignments of error are considered together as, indeed, they were in the defendant's brief and argument.

An information is valid and sufficient if it charges the offense for which the accused is being prosecuted by using the name given to the offense by a statute. Practice Book § 493. ¹ That procedure was followed here by employing a form of information outlined in Practice Book § 491 and adheres to a practice which has been held to be constitutional by this court. State v. Whiteside, 148 Conn. 208, 211, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33; State v. Davis, 141 Conn. 319, 321, 106 A.2d 159. 'The charges of the . . . (information) followed substantially the wording of the statute, which embodies all the elements of the crime, and such charges clearly informed the . . . (defendant) of that with which . . . (he was) accused, so as to enable . . . (him) to prepare . . . (his) defense and to plead the judgment in bar of any further prosecutions for the same offense. It is inconceivable to us how the . . . (defendant) could possibly be misled as to the offense with which . . . (he) stood charged. The sufficiency of the . . . (information) is not a question of whether it could have been more definite and certain.' United States v. Debrow, 346 U.S. 374, 377-378, 74 S.Ct. 113, 115, 98 L.Ed. 92. If a defendant is fairly informed of the charges against him so that he may prepare a proper defense, a bill of particulars is unnecessary and may properly be denied. State v. DiBella, 157 Conn. 330, 339, 254 A.2d 477; State v. Barker, 114 Conn. 354, 366, 158 A. 797. And the burden rests on the defendant to demonstrate that necessity. State v. DiBella, supra, 157 Conn. 339, 254 A.2d 477; State v. Curtis, 146 Conn. 365, 367, 151 A.2d 336. This defendant certainly was fairly apprised that the criminal intent in the breaking and entering charge referred to larceny, not only by the second count charging him with larceny at the same place on the same date, but further by the state's attorney's statement on March 12 and the court's explanation to him on March 16 in the following explicit language: 'Well, I can tell you the intent would be to commit a larceny, to steal. That's something for the State to prove. . . . The State will have to prove its part of its case (that) not only did you break and enter the Manchester Country, Club, but at the time you did you intended to steal.' Nor is there merit to the claim that the location of the crime was not adequately specified because it did not clearly appear which of three buildings on the premises of the Manchester Country Club was broken into. It was obvious from the information read into the record by the state's attorney in advance of the trial ('a window in the lounge of the country club had been pried open'; the 'keys were identified as having been taken from the cash drawer of the bar in the country club'), that the building involved was the clubhouse, and not the pro shop or the swimming pool cabana, which were the only other buildings on the premises. 'The granting or denying of a bill of particulars is a matter within the discretion of the trial judge, and absent clear abuse of discretion will not constitute reversible error. . . . We find appellant was amply protected in this case and there was no abuse of discretion.' Duncan v. United States, 392 F.2d 539, 541 (9th Cir.), cert. denied, 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 855.

Somewhat related to the foregoing claim of error is the court's refusal to grant the defendant's request to replace his court-appointed attorney, the public defender, with another court-appointed attorney, inasmuch as it appeared that the public defender had disagreed with the defendant over the necessity of obtaining a bill of...