State v. Findlay
| Decision Date | 14 January 1986 |
| Citation | 502 A.2d 921,198 Conn. 328 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Marguerite FINDLAY. |
Richard Emanuel, Bridgeport, for appellant (defendant).
F. Kent Sistare, Jr., Sp. Asst. State's Atty., with whom were Carl Schuman, Asst. State's Atty., and, on brief, Dennis A. Santore, State's Atty., for appellee (state).
Before ARTHUR H. HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.
The defendant, Marguerite Findlay, was charged in a substitute information, with the crime of robbery in the first degree by aiding, in violation of General Statutes §§ 53a-134(a)(4) and 53a-8. 1 She was convicted after a jury trial and sentenced to the custody of the commissioner of correction for a term of seven years. The defendant appeals from the judgment of conviction. 2
The defendant raises five issues on appeal: (1) whether there was sufficient evidence to establish the defendant's guilt beyond a reasonable doubt; (2) whether the court erred in denying the defendant's motion to suppress identification; (3) whether the defendant's rights were violated by the admission of evidence relating to two men seen with the defendant in a Dodge Omni two days before the robbery; (4) whether there was error in the denial of the defendant's motion for a new trial based on the prosecutor's remarks during closing argument; and (5) whether the court erred in its charge to the jury.
It is undisputed that the New Milford Savings Bank in Bridgewater was robbed on Friday, July 31, 1981, at approximately 10:15 a.m., by two armed men wearing rubber face masks. The robbers absconded with $8282 in a 1973 rust colored Ford Torino automobile. 3 As the robbers were driving away, bank employees were able to write down the Connecticut license plate number.
The jury could reasonably have found these additional facts: At approximately 10:10 a.m. on the day of the bank robbery, a farmer, Robert Rumovicz, was driving a tractor towing a hay bind, with an overall length of 22-24 feet, north along Second Hill Road in Bridgewater. Second Hill Road borders Rumovicz' dairy farm. A small yellow or cream colored car with a woman, later identified as the defendant, in the driver's seat was parked on the right-hand side of the road. The farmer expected the woman to move the car because the road was particularly narrow at that point and he knew he would have some difficulty in moving the hay bind past her car. It took Rumovicz approximately forty to sixty seconds to pass the car, and, as he did so, he stared at the driver in an attempt to display his irritation and annoyance with her for not moving her car. About ten minutes after Rumovicz passed the defendant's car, he returned on the same road back to his farm. The car was no longer parked on the road but a rust colored Ford Torino, later identified as the one used by the robbers to flee from the bank and as having been stolen, was parked in the same area. Police officers were already examining the Ford when Rumovicz arrived.
A second witness, Alice Borodenko, testified that she was driving south on Second Hill Road at approximately 10:20 a.m. on the day of the robbery when she saw a small new cream colored car parked on the opposite side of the road with a woman in the driver's seat. At this same time, Borodenko saw a reddish-brown or "root beer colored" car approaching from the opposite direction and she stopped her car to allow it to pass the cream colored car. The reddish car, however, parked behind the cream colored car and two men got out of the car. The passenger grabbed a package from the back seat of the car. Borodenko continued driving, and while looking in her rearview mirror, she saw both men run to the other car and she saw one man open a door of the cream colored car. At this point her car had negotiated either a dip in the road or a curve and she was then unable to view the men further. A few minutes later, when the police arrived on the scene, only the Ford, identified as the same car Borodenko had seen, was still parked on the road.
Rumovicz was able to give a description of the car and its driver to the police within minutes after seeing them. He described the car to the police as a beige/tan/yellow Dodge because he recognized its emblem and because he saw a red and white Dodge dealer vanity plate on the front of the car after he had passed it. 4 Later in the day of the robbery, Rumovicz accompanied police officers to a Dodge dealership where he identified the model of the car as an Omni. At a second Dodge dealership, Rumovicz identified a Bosco Dodge dealer's plate as the plate that he had observed was on the front of the defendant's car. It was undisputed that the defendant was driving a rented yellow 1981 Dodge Omni with a Bosco Dodge vanity or dealer front plate on the day of the robbery. 5 The defendant, a grant administrator for the town of Beacon Falls, reported late to work on Friday, July 31, arriving sometime between 11:08 and 11:30 a.m.
On the day of the robbery, Rumovicz also described the woman driver of the Dodge as heavyset--"heavier at the bottom than at the top." She was approximately 30 years old and she was wearing tinted eyeglasses, with large frames rounded at the bottom. He testified that she was wearing a white dress with black prints or circles spaced evenly over the dress. 6 Rumovicz' initial description to the police also included a description of the woman's hair as a "Shirley Temple hairdo," greasy-looking and oily, with an "unnatural" appearance. He later testified at trial that she had a "birthmark, a mole or something" on her face. At trial, a little more than two months after the robbery, Rumovicz positively identified the defendant as the driver once she had put on her glasses at defense counsel's request.
On the basis of Rumovicz' initial description of the woman driver of the Omni, Detective Robert Connor of the Connecticut state police had a suspect in mind--the defendant Marguerite Findlay. On the afternoon of the robbery, Connor asked Rumovicz to accompany him to the Beacon Falls town hall parking lot to view an automobile. While in the parking lot, and after Rumovicz identified the defendant's car as the one he had seen earlier on Second Hill Road, the defendant left the town hall and walked to her car. Rumovicz identified the defendant as resembling or "strongly" resembling the woman he had seen earlier that day in the Omni, except for her hair. Rumovicz also testified that a photograph of the defendant shown to him by Connor several days after the robbery "looked" like the woman he had seen in the Omni.
The defendant claims that the evidence was insufficient to establish the defendant's guilt beyond a reasonable doubt. State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); see State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). "The evidence must be given a construction most favorable to sustaining the jury's verdict." State v. Carter, supra.
There was sufficient evidence from which the jury could have concluded that the defendant was the driver of the Dodge Omni Rumovicz had seen on the morning of the robbery. Rumovicz positively identified her at trial, including testifying to a corroborating birthmark or mole which he did not see in either the parking lot identification or in the side-view photograph shown to him by Connor. While Rumovicz had not told the police about this birthmark or mole, he testified at trial that he repeatedly recalled that he "kept looking back at the [defendant's] face" on Second Hill Road and "I kept seeing a birthmark or a mole." There was evidence at the trial that the defendant has "a birthmark or brownish mark over the left side of her upper lip." Although her hair did not match his initial description, the jury could reasonably have inferred that she had somehow altered her hair style in order to avoid recognition, as Rumovicz had described the hair as unnatural looking.
Borodenko corroborated the description of the car and she also saw two men running from the Ford Torino towards the Dodge Omni and opening one of the doors. Although Borodenko did not see the men enter the car, the jury could reasonably have inferred that the sequence of events explained how, within minutes of the robbery, the Dodge Omni was gone, the two robbers had abandoned the Ford and were able to flee the area. The defendant's alibi defense of purchasing gasoline at a certain Mobil gas station could not be confirmed. The attendant working at the gas station on July 31, 1981, from 6:30 a.m. to 1 p.m. testified that he did not remember seeing a subcompact car fitting the description of the getaway car that he had heard broadcast over a police scanner come into the station that morning. Nor did he remember seeing the defendant come into the station that morning. In addition, the defendant was absent from work for most of the morning of the robbery.
The jury, as the trier of fact, determines the credibility of witnesses, and it is not the province of this court to retry the facts or to determine the weight which should have been accorded witnesses' testimony. Viewing the evidence as a whole and in a light most favorable to sustaining the jury's verdict, we cannot say that there was insufficient evidence to establish the defendant's guilt beyond a reasonable doubt. On the contrary, the facts proved, and the reasonable and logical inferences that the jury could draw from them, strongly support the verdict finding the defendant guilty of robbery in the first degree by aiding.
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