State v. Fredericks

• Decision Date: 05 July 1966
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Robert FREDERICKS.

Page 585

221 A.2d 585

154 Conn. 68

STATE of Connecticut v. Robert FREDERICKS.

Supreme Court of Connecticut.

July 5, 1966.

Igor I. Sikorsky, Jr., Hartford, for appellant (defendant).

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

Before KING, C.J., and ALCORN, SHANNON, COTTER and RYAN, JJ.

ALCORN, Associate Justice.

Between the time of the judgment from which this appeal is taken and the appeal itself, the defendant resorted to the proceedings determined in Fredericks v. Reincke, 152 Conn. 501, 208 A.2d 756. This appeal results from the decision in that case. The defendant has been represented by different court-appointed counsel in the trial of his case, in the intervening proceedings and on this appeal.

The defendant, Robert Fredericks, was jointly accused with John H. McGruder of committing the crime of robbery with violence on or about October 6, 1960. Both men pleaded not guilty, elected a jury trial and, in a joint trial in which each had separate counsel, were found guilty by the jury.

The state's evidence was that, early in the morning of October 6, 1960, Paul Richmond was walking alone on West Avon Street in Hartford with about $115 on his person. He met two men and a woman and inquired of them about a room. One man doubted Richmond's ability to pay for a room, whereupon Richmond exhibited his money. Thereupon he was struck and wrestled to the ground, and his money was taken. On the trial, both Richmond and an eyewitness positively identified Fredericks and McGruder as Richmond's assailants. McGruder was arrested on the afternoon of October 6 and told the police that he had been with Fredericks and a woman on West Avon Street in the early hours of that morning. Fredericks was arrested on October 13 by virtue of a warrant issued October 7 and refused to make any statement to the police on the advice of his lawyer.

Fredericks' defense was that he had parted company with McGruder earlier in the evening, was alone on West Avon Street about midnight of the night in question, did not see McGruder or Richmond and did not rob Richmond.

The four assignments of error are best considered seriatim. The first attacks the court's refusal to add to the finding facts claimed to be admitted or undisputed. This assignment is unmentioned in the brief and consequently is treated as abandoned. Labbadia v. Bailey, 152 Conn. 187, 190, 205 A.2d 377. Pursuit of the assignment would have been fruitless however, both because the requested additions were defective in seeking to have the court find facts in a jury case and because, even had they been requested as claims of proof, they would have no relevancy to the rulings on evidence, which are the only questions of law raised by Fredericks either in his request for a finding or in his assignments of error. Oborski v. New Haven Gas Co., 151 Conn. 274, 276, 197 A.2d 73.

The second assignment of error purports to attack a ruling on evidence which does not appear in the finding. Consequently it presents nothing for our consideration. Vachon v. Ives, 150 Conn. 452, 454, 190 A.2d 601; Dargie v. City of Hartford, 150 Conn. 261, 263, 188 A.2d 491; State v. Lougiotis, 130 Conn. 372, 375, 34 A.2d 777. Even the paragraph of the draft finding on which the assignment seeks to rely fails to set forth a ruling in such a form that it could be passed upon. Practice Book § 648.

The third assignment of error attacks a ruling on evidence which does appear in the finding. Over objection by McGruder's attorney, a police officer was permitted to testify that McGruder, after being arrested without a warrant, stated to the officer 'that in the early morning hours of the same night that the crime had been committed he had been with a woman who had a bad left eye, and that he had been with the same woman at the Paramount Restaurant on Main Street.' McGruder's attorney objected on the ground that the statement was not admissible until the state had shown a valid basis for the arrest. Fredericks' attorney made no objection. Fredericks now attempts to make an issue of the ruling for the first time. Unless a substantial injustice is shown, we are not required on appeal to entertain a claim which was not made in or passed upon by the trial court. State v. Rafanello, 151 Conn. 453, 456, 199 A.2d 13; Paley v. Connecticut Medical Examining Board, 142 Conn. 522, 529, 115 A.2d 448. Moreover a ruling on evidence must be both wrong and harmful in order to constitute reversible error. DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798. The ruling as presented on the record...