State v. Gaines

• Decision Date: 04 June 1985
• Citation: 493 A.2d 209,196 Conn. 395
• Parties: STATE of Connecticut v. Palmer GAINES.
• Court: Connecticut Supreme Court

Page 209

493 A.2d 209

196 Conn. 395

STATE of Connecticut v. Palmer GAINES.

Supreme Court of Connecticut.

Argued Feb. 5, 1985.

Decided June 4, 1985.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Carl Schuman, Asst. State's Atty., with whom, on the brief, were John Kelly, State's Atty., and William Domnarski, Deputy Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and SANTANIELLO, JJ.

SANTANIELLO, Associate Justice.

The defendant, Palmer Gaines, was charged by information with one count of robbery in the first degree. The charging document specifically alleged that the defendant "did commit a robbery and in the course of the commission of said robbery he displayed what he represented by his words or conduct to be a pistol or revolver, in violation of Section 53a-134(a)(4) of the General Statutes of Connecticut." ¹ A jury convicted the defendant of the charged offense and he was sentenced to a term of not less than six nor more than twelve years imprisonment. The defendant appeals from the judgment of conviction claiming that the evidence adduced at trial was insufficient to prove him guilty of robbery in the first degree as charged in the information. We find no error.

From the evidence presented at trial, the jury could reasonably have found the following facts. On July 7, 1980, at approximately 5:30 p.m., the defendant and another man entered the Shoetown store in Derby. At the time of their entrance, there were four employees and no customers in the store. After consulting with a salesclerk, the defendant selected a pair of shoes and followed the clerk to the counter where the cash register was located. The three other employees were at the cash register at this time.

As the salesclerk who had waited on the defendant went behind the register counter to write up the sale, the defendant followed him. At that point, the four employees saw that the defendant was armed. The employees, each of whom testified at trial, variously described the defendant's weapon as "a handgun," a "long barreled pistol," "[j]ust a handgun," and "a handgun." Aside from one employee's testimony that the gun was black, none of the witnesses provided any further descriptive details concerning the weapon, and the gun was not produced at trial.

The defendant and his companion took approximately $1500, which had been removed from the store's cash register and safe by one of the employees upon their direction. The two men then ordered the four employees "to go in the side stockroom and lie face down and not to turn around or he'd shoot us if he saw any faces." When the employees had complied, the defendant and his accomplice took the wallets of two of the employees, containing a total of about $207, and left the store. The weapon used by the defendant was never recovered.

At trial, the jury was instructed that "[t]he law as charged in this case, provides that a person is guilty of robbery in the first degree when in the course of the commission of the crime, or of immediate flight therefrom, he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a pistol or a revolver." ² The court then charged the jury as to "the definition of pistol or revolver ..., which is defined in our penal code. A pistol or revolver means any firearm having a barrel less than twelve inches." General Statutes § 53a-3(18). At the conclusion of the jury charge, the defendant moved for a judgment of acquittal on the ground that there was insufficient evidence that the weapon displayed by the defendant had a barrel of less than twelve inches. The court denied the motion, stating that there was "at least sufficient evidence to go to the jury," and an exception was taken.

The defendant's sole claim of error on appeal is that "by neglecting to present testimony as to the apparent length of the gun displayed, the state failed to prove an essential element of robbery in the first degree as charged." We disagree.

In State v. Hawthorne, 175 Conn. 569, 402 A.2d 759 (1978), we had occasion to interpret the specific statutory provision under which this defendant was charged. The defendant in Hawthorne was charged with first degree robbery under General Statutes § 53a-134(a)(4), "in that he or another participant in the crime displayed or threatened the use of what he represented by his words or conduct to be a firearm." Id., 570. He attacked his conviction on the ground that there was no proof that the weapon he used, which was admitted into evidence at trial, was operable. In support of his claim that the legislature made operability an element of the crime under subsection (a)(4), the defendant pointed to the statutory definition of "firearm" contained in General Statutes § 53a-3(19), which provides: " 'Firearm' means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged." (Emphasis added.) We rejected the defendant's argument, holding that "the essential element of subsection (a)(4) ... is the representation by a defendant that he has a firearm. Under this portion of § 53a-134, a defendant need not have an operable firearm; in fact, he need not even have a gun. He need only represent- y his words or conduct that he is so armed. Moreover, it is undisputed that the legislature could make the representation by a defendant that he had a gun an element of robbery in the first degree." Id., 573, 430 A.2d 1290.

In this case, the defendant concedes that the state was not obligated to produce the weapon involved as evidence at trial or to prove that what the defendant represented by his words or conduct to be a pistol or revolver was in reality such a weapon. Nonetheless, he argues that it was incumbent upon the prosecution to show that what the defendant displayed appeared to be a pistol or revolver within the statutory definition of those terms, that is, a "firearm having a barrel less than twelve inches." General Statutes § 53a-3(18). He suggests that the state easily could have satisfied this evidential requirement by asking any of the four eye-witnesses to testify as to the apparent length of the barrel on the gun displayed by the defendant. The absence of any evidence that the gun's barrel was less than twelve inches, he argues, constitutes a failure to prove an element of the charged offense and requires that the jury's verdict be set aside.

The defendant's argument is unpersuasive, particularly when viewed in the context of the legislative purpose behind General Statutes § 53a-134(a)(4) and our previous interpretation of that provision in Hawthorne, recently reaffirmed in State v. Dolphin, 195 Conn. 444, 449-50, 488 A.2d 812 (1985). " 'Although the principle is well established that penal statutes must be strictly construed, the application of common sense to the language of a penal law is not to be excluded in a way which would involve absurdity or frustrate the evident design of the lawgiver.' State v. Pastet, 169 Conn. 13, 21-22, 363 A.2d 41, cert. denied, 423 U.S. 937, 96 S.Ct. 297, 46 L.Ed.2d 270 (1975). 'In determining the true meaning of a statute when there is genuine uncertainty as to how it should apply, identifying the problem in society to which the legislature addressed itself by examining the legislative history of the statute under litigation is helpful.' State v. Campbell, [180 Conn. 557, 562, 429 A.2d 960 (1980) ]." State v. Belton, 190 Conn. 496, 505-506, 461 A.2d 973 (1983).

In State v. Hawthorne, supra, we identified the societal evil that the legislature aimed to punish or prevent in enacting our robbery statutes: "Robbery is defined in § 53a-133 as larceny which involves the use or threat of immediate physical force to prevent or overcome the resistance of the victim. Robbery is an offense against the person, the distinguishing characteristic of which is the intimidation of the victim. The ability of a defendant actually to do what he has threatened, therefore, is not an essential element of this crime." Id. 175 Conn. 573, 402 A.2d 759. "It borders on the absurd"; State v. Belton, supra, 190 Conn. 496, 507, 461 A.2d 973; to hold on the one hand that the state need not prove the operability or even the existence of a weapon to obtain a conviction of first degree robbery under General Statutes § 53a-134(a)(4), yet at the same time to require evidence of the apparent length of the weapon's barrel when the defendant is charged under the identical subsection with having displayed what he represented by his words or conduct to be a pistol or revolver. That the length of the gun's barrel is specified in the statutory definition of "pistol or revolver" under General Statutes § 53a-3(18) is no more significant to us here than was the requirement of operability contained in the statutory definition of "firearm" in Hawthorne. The essential element of General Statutes § 53a-134(a)(4) is the representation by a defendant that he...