State v. Crosswell, 14286

• Decision Date: 04 August 1992
• Docket Number: No. 14286,14286
• Citation: 223 Conn. 243,612 A.2d 1174
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Dennis CROSSWELL.

Page 1174

612 A.2d 1174

223 Conn. 243

STATE of Connecticut v. Dennis CROSSWELL.

No. 14286.

Supreme Court of Connecticut.

Argued April 28, 1992.

Decided Aug. 4, 1992.

Borden, J., dissented in part and filed opinion in which Callahan, J., joined.

Charles D. Ray, Sp. Public Defender, for appellant (defendant).

Harry Weller, Asst. State's Atty., with whom were John M. Bailey, State's Atty., and, on the brief, Rosita M. Creamer, Sr. Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

PETERS, Chief Justice.

The principal issues in this criminal appeal arise out of the contention of the defendant, Dennis Crosswell, that he is entitled to an acquittal on the ground of evidentiary insufficiency on each count of the multi-count substitute information lodged against him by the state. After a jury trial, the defendant was found guilty of the crimes of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(4), burglary in the first degree in violation of General Statutes §§ 53a-101(a)(2) and 53a-8, conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a)(2), and assault in the second degree in violation of General Statutes §§ 53a-60(a)(2) and 53a-8. ¹ The trial court sentenced him to concurrent sentences on the first four counts and a consecutive sentence on the fifth count for an effective term of sixteen years imprisonment. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We reverse the judgment in part.

The defendant and Everald Howard were charged as codefendants with the same crimes and were tried jointly. In State v. Howard, 221 Conn. 447, 450-51, 604 A.2d 1294 (1992), affirming Howard's conviction, we noted the facts that the jury could reasonably have found.

"On January 11, 1989, [the defendant], Charlyene Holmes, another person identified only as Jasper and [Everald Howard] agreed to steal $15,000 that Jasper and [Howard] believed was hidden in an apartment in a three-family house in Hartford. ² They decided that Holmes would knock on the door to the apartment, in the hope that, because she was a woman, someone unsuspecting would open it and that they would then all enter the house and steal the money.

"That evening, [the defendant], Holmes, Jasper and [Howard] drove to the house as agreed. Holmes checked the rear door of the first floor apartment and, finding it locked, returned to the car, where [Howard] handed her a loaded revolver. Approximately one-half hour later, Holmes, accompanied by [the defendant], who was wearing a mask, and [Howard], who was not, knocked on the door of the first floor apartment. Suzette Hutchinson came to the door and asked who was there. She opened the door after Holmes had falsely identified herself as 'Tuesday,' ³ Hutchinson's sister. [The defendant], Holmes and [Howard] then pushed the door wide open and entered the kitchen of the apartment where Hutchinson had been watching television with Chesley Smith, her cousin, and Hilda Edwards, their grandmother. Holmes gave the revolver to [Howard], who pointed it at Hutchinson, Smith and Edwards and ordered them into the bedroom. Hutchinson and Smith complied, but Edwards remained in the kitchen because of her limited ability to walk. Already in the bedroom were several other relatives of Hutchinson: Roxanne Facey, her sister, Timothy Hester, her ten year old brother and Travalis Johnson, her four year old nephew. [Howard] pointed the revolver at the group in the bedroom and demanded money. Smith, Hutchinson and Facey gave [Howard] a total of $43.75. Meanwhile, Holmes searched the bedroom, overturning the bed, pulling off the mattress and tearing out dresser drawers, but failed to discover any money. [Howard] then threatened to shoot Smith if more money was not handed over. When Smith denied knowing about any other money in the apartment, [Howard] hit him on the head with the revolver. Smith knelt down and began crying. [Howard] then took him to another bedroom where he again hit him on the head with the revolver and punched him in the stomach and shoulders.

"While these events were unfolding, Edwards, the grandmother, was screaming from the kitchen. [Either Howard or the defendant] hit Edwards on the head to silence her, causing her to cry out louder. ⁴ When Smith attempted to come to her aid, [Howard] prevented him from doing so. The search for money continued throughout the apartment until Holmes noticed a small basement room in which she discovered a pouch containing $15,000. Holmes, [the defendant] and [Howard] then ran from the house and later divided the money, [Howard] receiving $5000, Holmes receiving $4000, [the defendant] receiving $2000 and Jasper receiving $4000."

The defendant has proffered numerous claims in support of his contention that his conviction must be overturned. ⁵ First, he contends that the trial court should have granted his motion for acquittal, because of insufficiency of the evidence, on each of the charges of which he was convicted. ⁶ Second, he maintains that the information charging him with burglary in the first degree was so defective that it either deprived the trial court of jurisdiction or misled the jury into convicting the defendant without a finding that the state had proven one essential element of the crime. Third, he argues that principles of double jeopardy forbid his conviction of two conspiracies arising out of the same alleged agreement between the three conspirators. Fourth, he claims that he is entitled to a new trial because the trial court should have granted his motion to suppress, which challenged the reliability of his identification by Smith and Hutchinson. Fifth, he asserts that he is entitled to a new trial because the trial court abused its discretion in denying trial counsel access to Holmes' psychiatric records. We agree in part with the defendant's claims about the sufficiency of the evidence, but otherwise affirm the judgment of the trial court.

I

The defendant does not challenge the standard governing this court's review of claims relating to the sufficiency of the evidence to sustain a criminal conviction. "Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same.... We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt." State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Roseboro, 221 Conn. 430, 434, 604 A.2d 1286 (1992). Applying that standard in this case, we conclude that the evidence presented by the state could reasonably have persuaded the jury, beyond a reasonable doubt, that the defendant committed the first three crimes with which he was charged, robbery in the first degree, conspiracy to commit robbery in the first degree and burglary in the first degree. There was, however, insufficient evidence to support the verdict on the fourth count, conspiracy to commit burglary in the first degree, or on the fifth count, assault in the second degree.

A

With respect to the charge of robbery in the first degree, the information charged the defendant with having "used and/or threatened the immediate use of physical force upon another" during the course of a larceny. The trial court's instructions to the jury on this charge referred to the language of the statute without including any reference to the defendant's possible accessorial liability. In light of these instructions, the defendant maintains that he is entitled to an acquittal because there was no evidence that he personally threatened anyone or that his actions were taken in the course of committing a larceny. We disagree with both of these assertions.

Under the governing statutes, "[a] person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." General Statutes § 53a-133. A person has committed robbery in the first degree if, "in the course of the commission of the crime ... he or another participant in the crime ... uses or threatens the use of a dangerous instrument." General Statutes § 53a-134(a)(3).

"The use or threatened use of immediate physical force is the element which distinguishes larceny from robbery." State v. Childree, 189 Conn. 114, 123, 454 A.2d 1274 (1983). "[I]f the use of force occurs during the continuous sequence of events surrounding the taking ... even though some time immediately before or after, it is considered to be 'in the course of' the robbery ... within the meaning of the statute." State v. Ghere, 201 Conn. 289, 297, 513 A.2d 1226 (1986).

The jury could reasonably have found, beyond a reasonable doubt, that the defendant forced his way onto the premises, in the company of two other persons, one or another of whom was at all times brandishing a gun. By their words and conduct, acting in concert, all three made it clear that they would brook no interference in their search for the property they expected to find. The defendant...