State v. Brokaw

• Decision Date: 08 July 1980
• Citation: 436 A.2d 6,181 Conn. 475
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Melvin BROKAW.

Page 6

436 A.2d 6

181 Conn. 475

STATE of Connecticut v. Melvin BROKAW.

Supreme Court of Connecticut.

Argued May 13, 1980.

Decided July 8, 1980.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and Joette K. Rubin, Asst. Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Richard Maloney, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, PARSKEY and SHEA, JJ.

PARSKEY, Associate Justice.

The defendant was found guilty by a jury of the crime of robbery in the first degree in violation of § 53a-134(a) of the General Statutes. The defendant has appealed. We reverse.

The facts which the jury might reasonably have found from the evidence are not in dispute: On March 26, 1976, at about 9:30 p. m., Merrill Fichman was robbed in front of his store, the Meatown Market, located on New Britain Avenue in Plainville. The occurrence took place in the parking area where Fichman was jumped upon and knocked to the ground by two men as he was unlocking a door of his car. In the course of the event, Fichman saw one of the men display a gun, and two wallets containing $150 were taken from Fichman's person. Fichman also described a third party's involvement. While he was lying on the ground, a car drove up and parked in front of him to prevent any observation from the street. When the robbers left the scene, they left in that car.

Fichman saw the two men only momentarily before they knocked him down. He estimated the time as thirty seconds, and thereafter, he was unable to look up. The faces of both men were covered by what Fichman described as black ski masks, and he recalled that one of them wore an orange hat. Consequently, Fichman's description of them to the police was limited to characteristics such as age, voice, height and weight. Shortly after the incident, Fichman had described both of them as men in their early twenties with heights of five feet nine inches and weights of approximately 185 pounds.

At the trial, Fichman admitted that the description he had given did not resemble the defendant Brokaw, at all. With the exception of a similarity in height, the description did not fit the codefendant, Estep, either.

To establish the involvement of Brokaw and Estep, the state relied on the testimony of Raymond Duffy, an alleged accomplice, who identified himself as the driver of the car which had been parked between Fichman and the street when the robbery was in progress.

Duffy's testimony contained all the particulars of the robbery which only a self-confessed participant could supply. He acknowledged prior acquaintance with Brokaw and Estep, and identified them as the robbers. He described their face masks as black panty hose which had been supplied by Brokaw and the orange hat as one provided by himself. He stated that the car he had driven was one stolen by them in Waterbury and that they had gained access to it by breaking a back window. He told about the trip from Waterbury to Plainville for which two cars were used. The stolen one, driven by himself, was followed by Estep's car, in which Brokaw and Estep rode. He stated that Estep's car was left in the parking lot of a nearby Holiday Inn and that the stolen vehicle was abandoned there afterward. In the commission of the robbery, he said that both men wore gloves and that Brokaw carried a small revolver and Estep a kitchen knife. He also said when they left the Holiday Inn, after the robbery, that the gloves and nylons were discarded at various points along the road. He described the route as the street which led into the road to Bristol.

After Duffy, the state's next witness was Detective Aivaz, who testified to activities of the Plainville police on March 31, 1976, five days after the robbery. In response to a call received on that date from the Holiday Inn about a car which had been in the motel parking lot for several days, the police located the stolen car with the "smashed out" rear window. On the dashboard of the car, a wooden-handled kitchen knife was found. On the same day, about 150 yards from the Holiday Inn, the police, when looking over an embankment on Crooked Street, discovered one pair of brown work...