State v. Ghere, 11730

• Decision Date: 26 August 1986
• Docket Number: No. 11730,11730
• Citation: 513 A.2d 1226,201 Conn. 289
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. David GHERE.

Page 1226

513 A.2d 1226

201 Conn. 289

STATE of Connecticut v. David GHERE.

No. 11730.

Supreme Court of Connecticut.

Argued June 4, 1986.

Decided Aug. 26, 1986.

Stephen M. Prignano, Certified Legal Intern, with whom were Timothy H. Everett, Bridgeport, and, on brief, Kerry Wisser, Certified Legal Intern, for appellant (defendant).

Christopher Malany, Deputy Asst. State's Atty., and, on brief, Arnold Markle State's Atty., and Patrick J. Clifford, Asst. State's Atty., for appellee (State).

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

SANTANIELLO, Justice.

By substitute information, the defendant, David Ghere, was charged in the first count with the crime of attempted robbery in the first degree as an accessory, in violation of General Statutes §§ 53a-134(a)(3), 53a-49(a) and 53a-8, in the second count with conspiracy to commit robbery in the first degree, in violation of General Statutes § 53a-48(a), and in the third count with assault in the second degree, in violation of General Statutes § 53a-60(a)(2). After a jury trial, he was found guilty of the crimes charged and was sentenced to an effective prison term of not less than seven nor more than fourteen years. On appeal, he claims: (1) that there was insufficient evidence to support his conviction on the first and second counts; and (2) that the trial court erred in allowing the state to impeach the testimony of the defendant's alibi witnesses by exposing their failure to volunteer exculpatory information to the police. We find no error.

I

We examine first the defendant's claim that the state presented insufficient evidence to support his conviction for the crimes of attempted robbery in the first degree and conspiracy to commit robbery in the first degree. In considering this claim, "[w]e are obligated to review the evidence as favorably as possible with a view toward sustaining the verdict and then to decide whether the verdict is one which jurors acting reasonably could have reached. State v. Maturo, [188 Conn. 591, 601, 452 A.2d 642 (1982) ]; State v. Jeustiniano, 172 Conn. 275, 281-82, 374 A.2d 209 (1977). Evidence is sufficient to sustain a verdict if the jury could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the defendant's guilt was proven beyond a reasonable doubt. State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978)." State v. Maltese, 189 Conn. 337, 344, 455 A.2d 1343 (1983); see also State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

To establish its case, the state relied heavily on the testimony of the victim, Marc Perkis. ¹ He testified at trial as follows: On March 20, 1981, at approximately 5 to 5:30 p.m., he drove into the parking lot of the Stop & Shop Supermarket on South Colony Road in Wallingford with the intention of buying groceries. He parked his car in a spot two to three hundred feet from the store with the front end of the car against a chain link fence. Another car was parked on the driver's side and there was only a two or three foot space between the two cars. As the victim stepped out of his car, he noticed two men walking toward him from across the lot. They came up to him and blocked his way to the store, standing at the rear of his car.

The victim described the two men in detail. The first man was between six feet, four and five inches tall, approximately nineteen to twenty-two years old and had long light brown hair about an inch from the shoulder. He was relatively clean shaven but had some whiskers growing on his chin and upper lip. He wore a dungaree jacket, a pair of blue jeans that was ripped at the knees, a belt with a large brass buckle and a pair of black leather motorcycle boots in poor repair. The second man was the person whom the victim later identified as the defendant. He was approximately six feet tall, in his late twenties or early thirties and had dark brown hair of shoulder length. He had broad shoulders and a heavier build than that of the first man, untrimmed facial hair under his nose and chin and prominent scars and pockmarks on his face like those left by severe acne. He wore a "very old, very dirty" sleeveless denim jacket which had several patches, including one bearing a motorcycle insignia. He also wore ripped blue jeans with patches and black motorcycle boots in relatively poor condition.

The first man confronted the victim and "asked [him] for money...." The victim responded that he "did not have any money." Apparently not satisfied with the response, the first man became indignant and retorted: "If you are going shopping you have to have some money." The victim, who described himself as "a little annoyed" at this point, replied that "I don't [have money]. I pay by check ... [w]ould you like a check?"

Within one or two seconds of the last verbal exchange, the second man stepped toward the victim and displayed a blackjack approximately eight to ten inches long. The victim had not noticed the weapon up to this point in time because the man had concealed it behind his back. The man immediately swung the blackjack at the victim and struck him in the face below the eye causing him to reel back against his car. The same man then punched the victim "[a] couple of times" in the stomach and, as he fell to the ground, struck him again over the head. Once on the ground, the victim feigned unconsciousness and heard the second man call to the first: "Come on let's get back to the shop." Then, without searching the victim, the two men quickly left the parking lot.

The victim remained on the ground for a few minutes before being able to pull himself up into his car. When he felt well enough to drive, he went directly to the Wallingford police station and related what had happened. The police took a general description of the assailants and then sent the victim to the hospital by ambulance. After being treated and released, the victim returned to the police station at approximately 9 p.m. and gave a full statement describing the two men and the attack. The victim also viewed a photographic array containing six to seven photographs, selected a photo of the defendant and identified him as the man who had hit him with the blackjack. He stated that he was "extremely positive" about this identification. He later viewed another array containing approximately ten to fourteen photos and again selected the defendant's photograph. ² The victim testified that "there [was] no doubt in [his] mind" that the defendant was the man who had struck him.

The defendant presented an alibi defense at trial. He took the stand himself and testified that on the day of the alleged crimes he had visited a friend at Hartford Hospital and then had gone to the workshop of his club, the Diablos motorcycle club, in Meriden between 5 and 5:30 p.m. There he had unloaded his motorcycle from the back of his truck and had worked around the shop for a few hours before going home. The defendant called three witnesses who testified that he had been at the hospital on the afternoon in question one of whom said that he had remained there until 4 p.m. He called two additional witnesses who testified that he had been at the Diablos club from 5:10 or 5:20 p.m. until later that evening. It was also established during the examination of the defendant and his witnesses, however, that he had worn a sleeveless denim jacket with motorcycle and Diablos club patches at the time the crimes took place.

A

The defendant claims that there was insufficient evidence to convict him of being an accessory to the crime of attempted robbery in the first degree. He does not challenge the jury's conclusion that there was sufficient concert of action between him and his accomplice to support the accessory allegations made under General Statutes § 53a-8. ³ He argues instead that there was insufficient proof: (1) of his intent to commit larceny in that the assailants' actions constituted, at the most, "aggressive panhandling"; and (2) that he used or threatened to use force "in the course of" attempting a larceny as required under General Statutes § 53a-133. We disagree.

A person is guilty of criminal attempt if, acting with the kind of mental state required for the commission of the crime, he intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be, or intentionally commits an act which constitutes a substantial step in a course of conduct planned to culminate in the commission of the crime. General Statutes § 53a-49; ⁴ State v. Green, 194 Conn. 258, 276, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985). "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. Simple robbery becomes robbery in the first degree if, "in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... uses or threatens the use of a dangerous instrument." General Statutes § 53a-134(a)(3). ⁵

Turning to the defendant's claim concerning intent, we note from the relevant statutes that the state was required to establish beyond a reasonable doubt the defendant's intent to commit larceny in order to obtain a conviction for attempted robbery in the first degree. State v. Morrill, 193 Conn. 602, 608-609, 478...