State v. Grant

• Citation: 177 Conn. 140,411 A.2d 917
• Court: Supreme Court of Connecticut
• Decision Date: 27 March 1979
• Parties: STATE of Connecticut v. Joseph GRANT.

Page 917

411 A.2d 917

177 Conn. 140

STATE of Connecticut v. Joseph GRANT.

Supreme Court of Connecticut.

Argued Dec. 14, 1978.

Decision Released March 27, 1979.

Richard L. Shiffrin, Asst. Public Defender, New Haven, for appellant (defendant).

Robert E. Beach, Jr., Asst. State's Atty., for the appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

COTTER, Chief Justice.

The defendant has appealed, after trial by a jury, from his conviction of the crime of attempted burglary in the first degree in violation of §§ 53a-101(a) (1) ¹ and 53a- 49(a) ² of the General Statutes, claiming error in the trial court's refusal to grant his motion to set aside the verdict because of the insufficiency of the evidence.

In reviewing such a claim, the evidence and the facts are to be taken in the light most favorable to sustaining the verdict, and it will be set aside only where there is insufficient evidence to warrant a finding of guilty beyond a reasonable doubt. State v. Ortiz, 169 Conn. 642, 646, 363 A.2d 1091; State v. Raffone, 161 Conn. 117, 121, 285 A.2d 323. It is clearly the province of the jury to weigh the credibility of the witnesses and to draw all fair and reasonable inferences from the facts and circumstances which the jury finds established by the evidence. State v. Taylor, 153 Conn. 72, 78, 214 A.2d 362, cert. denied, 384 U.S. 921, 86 S.Ct. 1372, 16 L.Ed.2d 442.

From a review of the evidence the jury could have reasonably found the following facts: On the morning of December 10, 1975, Daniel S. Cohen, the son of the owner of certain premises located in Hartford, heard a scraping noise on the second floor of the building in question and, upon investigation, encountered a man wearing a blue ski cap, later identified as Lawrence Murray, in the doorway of one of the second-floor apartments. Having been discovered, Murray fled out the rear of the building pursued by Cohen, who followed Murray in his car and observed that Murray had been joined by a companion, subsequently identified as the defendant. Cohen chased Murray and the defendant around the block and, when the building superintendent, Samuel Loyd, arrived on the scene, Cohen called the police while Loyd continued in pursuit. The suspects were observed entering another building, and, when the police arrived, the officers were able to follow the suspects' muddy footprints to a third-floor apartment subsequently established to be Murray's residence. The police then brought Cohen and Loyd to the apartment where they identified Murray and the defendant, Grant.

The apartment door at the site of the attempted burglary was damaged, and there was evidence that it had been forced open. Fresh marks were found on the door, and wood chips were scattered on the floor. During a search of Murray's apartment following the arrest of the two suspects, the police discovered a tire iron between the mattress and box spring of a bed. Upon examination, the tire iron was found to match the indentations on the damaged door at the site of the attempted break-in.

While in the custody of the police following his arrest, the defendant, after being advised of his constitutional rights, confessed that he participated in the attempted burglary as a "lookout" at the rear of the building, but that both he and Murray had been "scared off" and nothing had been taken.

The accused, who offered no evidence at trial, contends that the evidence presented by the state failed to support a jury's verdict of guilty beyond a reasonable doubt and, thus, the court was in error in denying his motion to set aside the verdict. The defendant claims that the only direct or circumstantial evidence linking him to the alleged crime was his oral confession which was insufficient to support a verdict of guilty beyond a reasonable doubt. The defendant does not challenge the trial court's conclusion that the confession was voluntarily made and thus properly admissible.

It is a well-settled general rule that a naked extrajudicial confession of guilt by one accused of crime is not sufficient to sustain a conviction when unsupported by any corroborative evidence. Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S.Ct. 407, 9 L.Ed.2d 441; Smith v. United States, 348 U.S. 147, 152-53, 75 S.Ct. 194, 99 L.Ed. 192; State v. Tillman, 152 Conn. 15, 202 A.2d 494; State v. Doucette, 147 Conn. 95, 157 A.2d 487; State v. Skinner, 132 Conn. 163, 43 A.2d 76; 7 Wigmore, Evidence (3d Ed.) §§ 2070-2072; annot., 45 A.L.R.2d 1316, 1320, § 4(a). It is similarly well established, however, that the corroboration rule requires independent evidence tending to establish the corpus delicti only; State v. Doucette, supra, 147 Conn. 99-100, 157 A.2d 487; accord, Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101; and once the existence of the crime charged is established, the confession alone may then be used to provide the link between the criminal act and the accused who admits having committed it. ³ Wong Sun v. United States, supra, 371 U.S. 489-90 n.15, 83 S.Ct. 407; annot., 45 A.L.R.2d, supra, 1336, § 12; 30 Am.Jur.2d, Evidence § 1137.

It is apparent from the foregoing summary of the evidence presented in the instant case that there was sufficient independent evidence from which the jury reasonably could have found that the state had proven the corpus delicti, that is, that the specific acts embraced in the crime of attempted burglary had occurred; and this evidence, although circumstantial in nature, was nonetheless both material and substantial. See State v. Tillman, supra, 152 Conn. 20, 202 A.2d 494. Thus, the defendant's confession was sufficient to justify the finding of the jury implicating the defendant as a participant in the attempted burglary. ⁴ Moreover, the evidence, including all the facts of the case, afforded a sufficient basis for the jury to consider the accused's unexplained flight after the crime had been committed and before his arrest as a circumstance from which an inference of his guilt might be warranted. State v. Rosa, 170 Conn. 417, 432-33, 365 A.2d 1135; State v. Ferrara, 176 Conn. 508, 516-17, 408 A.2d 265; 1 Wharton, Criminal Evidence (13th Ed. Torcia) § 143, p. 243; 2 Wigmore, Evidence (3d Ed.) § 276; McCormick, Evidence (2d Ed.) § 271(c).

Although we conclude that sufficient evidence was presented to implicate the defendant in the attempted break-in, we agree that the state failed to prove the element of a "dangerous instrument" necessary to support a conviction for attempted burglary in the first degree in the manner alleged by the state. General Statutes § 53a-3(7) defines "dangerous instrument" as "any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury." Although it is not necessary under this definition that any physical injury actually have been inflicted; State v. Jones, 173 Conn. 91, 95, 376 A.2d 1077, 1079; it is necessary that "under the circumstances in which (the instrument was) used or attempted or threatened to be used," it was "capable of causing death or serious physical injury." (Emphasis added.)

The evidence in the present case tended to establish that, at most, the "tire iron" was used for the purpose of breaking into an apartment. There was no evidence, and, indeed, there was no claim by the state, that any of the participants in the attempted break-in used, threatened the use of, or attempted to use this object under circumstances capable of inflicting injury upon another. ⁵ Under these circumstances, we conclude that there was insufficient evidence before the jury to sustain a conviction for attempted burglary in the first degree. See State v. Jones, supra; People v. Rumaner, 45 A.D.2d 290, 292, 357 N.Y.S.2d 735.

From the foregoing discussion, it is clear that there was a lack of proof only as to the element of a "dangerous instrument," which component serves as the basis for elevating the crime of burglary to the first degree. Absent that ingredient, however, there was nonetheless sufficient evidence to sustain a conviction for the lesser included offense of attempted burglary in the third degree. ⁶ As a lesser included offense, burglary in the third degree does not require proof of any element which is not required to commit the greater offense of burglary in the first degree. See State v. Harden, 175 Conn. 315, 323, 398 A.2d 1169; State v. Neve, 174 Conn. 142, 145, 384 A.2d 332; State v. Ruiz, 171 Conn. 264, 272, 368 A.2d 222; State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547. Manifestly, the jury's verdict in the present case necessarily presupposes a threshold determination that all the elements of attempted burglary in the third degree had been proven beyond a reasonable doubt.

In this context, although this court is without discretionary power to alter a sentence lawfully imposed; State v. Sober, 166 Conn. 81, 95, 347 A.2d 61; State v. Mendill, 141 Conn. 360, 363, 106 A.2d 178; we may order the modification of an erroneous judgment where the evidence is insufficient to support an element of the offense stated in the verdict but where the evidence presented is sufficient to sustain a conviction for a lesser included offense. Such a procedure has been followed by state appellate courts in regard to a variety of offenses. See, e. g., Dinwiddie v. State, 202 Ark. 562, 151 S.W.2d 93; People v. Mendes, 35 Cal.2d 537, 219 P.2d 1; State v. Braley, 224 Or. 1, 355 P.2d 467; Forsha v. State, 183 Tenn. 604, 194 S.W.2d 463 (reducing first degree murder to second degree murder where the evidence failed to establish premeditation or deliberation); People v. Gaither, ...