State v. Cannon

• Decision Date: 11 August 1981
• Citation: 440 A.2d 927,185 Conn. 260
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Wilbert CANNON.

Page 927

440 A.2d 927

185 Conn. 260

STATE of Connecticut v. Wilbert CANNON.

Supreme Court of Connecticut.

Argued June 9, 1981.

Decided Aug. 11, 1981.

Thomas Corradino, New Haven, for appellant (defendant).

Guy W. Wolf, III, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (state).

Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

ARTHUR H. HEALEY, Associate Justice.

After a trial to a jury, the defendant was found guilty of robbery in the first degree in violation of General Statutes § 53a-134(a)(3). ¹ The defendant has appealed from the judgment rendered on the verdict and claims error in two respects. He contends (1) that the court erred in refusing to instruct the jury on the lesser included offense of larceny in the third degree; General Statutes § 53a-124; ² and (2) that the instructions to the jury were misleading and confusing on the issue of whether the defendant was an aider and abettor under General Statutes § 53a-8. ³

The jury could reasonably have found the following facts: Stephen Wabunoha, a Ugandan refugee, came to this country with his wife and children on December 18, 1977. He and his family moved into an apartment in New Haven after Christmas, 1977.

On January 31, 1978, at approximately 8 p. m., Wabunoha walked from his apartment to a nearby store to buy some milk for his family. Finding the store closed, he stopped in a bar to have a drink; he had recently learned of the death of his father. He had been speaking with two men in the bar when Donald Mack entered and greeted Wabunoha. Mack, at an earlier date, had introduced himself to Wabunoha and had previously asked Wabunoha for money. Wabunoha, at one time, had given him fifty cents. On the present occasion, Mack again asked Wabunoha for money. After Wabunoha gave him fifty cents, Mack left the bar.

At approximately 9 p. m., Wabunoha left the bar and again encountered Mack. Mack invited Wabunoha to meet his "cousin" who lived on Hallock Street. When they arrived at an apartment at 31 Hallock Street, Wabunoha and Mack were let in by the defendant, who was then introduced to Wabunoha. The defendant returned to a couch in the living room where he had been lying while Mack and Wabunoha entered the kitchen. The kitchen was approximately fifteen to twenty feet from the couch.

Prior to entering the apartment, Mack had told Wabunoha to place his watch in the pocket of his overcoat. Once in the kitchen, Wabunoha removed his coat and placed it over a chair. Mack left the kitchen and traveled from the living room into the bedroom and back to the kitchen a number of times before he left the apartment to retrieve a glove which Wabunoha said that he had dropped on the stairway leading to the apartment. Upon returning, Mack left the kitchen for the last time before returning with a drawn knife demanding Wabunoha's watch and money.

Mack approached Wabunoha with the knife in his right hand, blade extended, and brought the blade to within a foot of Wabunoha's neck. Wabunoha became very upset and started yelling and screaming. The defendant then entered the kitchen from the living room and joined Mack in demanding Wabunoha's watch and wallet. ⁴

The defendant held Wabunoha's hand while Mack removed Wabunoha's wallet from his rear pants pocket. The defendant and Mack both demanded to know why Wabunoha had not admitted that he had money in his wallet. Mack then took the watch from Wabunoha's outercoat pocket.

Wabunoha became hysterical and begged Mack and the defendant not to kill him. The defendant ordered Wabunoha to leave but Wabunoha refused because he feared that the defendant and Mack would follow and kill him. The defendant helped Wabunoha to his feet and gave him a drink of gin to calm him down.

After approximately three hours of pleading with Mack and the defendant for the return of his property, Wabunoha was walked outside by the two and in the direction of Wabunoha's apartment because Wabunoha was not familiar with the streets. The defendant returned Wabunoha's wallet but it did not contain the forty-five dollars that Wabunoha had in it.

At trial, the jury were instructed on the elements of robbery in the first, ⁵ second ⁶ and third degrees, ⁷ and on aiding and abetting of a robbery. ⁸ The defendant's first claim of error relates to the trial court's failure to instruct the jury on larceny in the third degree as a lesser included offense of robbery in the first degree. Specifically, the defendant claims that all four elements of the test we enunciated in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), which was made more precise in State v. Tinsley, 181 Conn. 388, 397 n.6, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981), were satisfied, thus entitling him to an instruction on larceny in the third degree. ⁹

A defendant is entitled to an instruction on a lesser offense only if each of the following four conditions are met: "(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." State v. Kolinsky, --- Conn. ---, ---, 438 A.2d 762 (42 Conn.L.J., No. 26, pp. 6, 10) (1980), cert. denied, --- U.S. ----, 101 S.Ct. 2054, 68 L.Ed.2d 354 (1981)), quoting State v. Tinsley, supra; State v. Morin, 180 Conn. 599, ---, 430 A.2d 1297 (41 Conn.L.J., No. 47, pp. 5, 6) (1980); State v. Whistnant, supra. See State v. Smith, --- Conn. ---, ---, --- A.2d ---- (43 Conn.L.J., No. 4, pp. 1, 6) (1981). A refusal to charge will be justified if any of the four conditions is not satisfied. State v. Kolinsky, supra, --- Conn. at ---, 438 A.2d 762; State v. Whistnant, supra, 179 Conn. 588, 427 A.2d 414.

Under the second prong of Whistnant, the defendant would be entitled to a charge on larceny in the third degree if it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. State v. Tinsley, supra, 181 Conn. at 397, 435 A.2d 1002; State v. Whistnant, supra, 179 Conn. 588, 427 A.2d 414. The information charged that "Wilbert Cannon and Donald Mack, another participant in the crime, did commit a robbery of Stephen Wabunoha and in the course of the commission of the crime Donald Mack used and threatened the use of a dangerous instrument, to wit: a knife, in violation of Section 53a-134(a)(3) of the General Statutes." The defendant, as was his right, did not move for a bill of particulars. See Practice Book §§ 830-833.

The second prong of Whistnant has not been satisfied in this case because it is possible to commit the greater offense in the manner described in the information, without having first committed the lesser. This is so because General Statutes § 53a-124 ¹⁰ provides in relevant part that "(a) A person is guilty of larceny in the third degree when: (1) The value of the property or service exceeds fifty dollars ...." Clearly, the lesser offense of larceny in the third degree requires proof of an element, i.e., value of the property taken to exceed fifty dollars, which robbery in the first degree does not. Thus, this precludes our finding here that larceny in the third degree is a lesser included offense of robbery in the first degree. ¹¹

The defendant's second claim of error rests on the trial court's instructions to the jury regarding the defendant's status as an aider and abettor under General Statutes § 53a-8. ¹² Basically, the defendant argues (1) that the court did not sufficiently relate its aiding and abetting instructions to its robbery instructions, and (2) that the trial court's supplemental instructions on aiding and abetting were delivered in such a manner as to read the requirement of proving criminal intent out of the statute.

The court, at trial, gave a lengthy instruction to the jury, including specific instructions on the elements of robbery in the first, second and third degrees, and an instruction, requested by the defendant, on aiding and abetting. ¹³ During their deliberations, the jury requested supplemental instructions on the differences between the crimes of robbery in the first, second and third degrees, and on the need for proof of the defendant's criminal intent. In addition, the jury twice requested an explanation of the aiding and abetting statute § 53a-8 and once asked for the difference between the crimes of robbery in the first degree and aiding and abetting. The court duly responded to each inquiry from the jury. "To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866 (1979); State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Crawford, 172 Conn. 65, 69, 372 A.2d 154 (1976); State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974). In appeals not involving a constitutional question the court must determine whether it is reasonably probable that the jury were misled; State v. Ralls, supra; State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288 (1970); Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536 (1966); Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69 (1964)." State v. Williams, --- Conn. ---, ---, 438 A.2d 80 (42 Conn.L.J., No. 8, pp. 29, 30) (1980).

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