State v. Griggs
Decision Date | 29 July 2008 |
Docket Number | No. 18049.,18049. |
Citation | 951 A.2d 531,288 Conn. 116 |
Court | Connecticut Supreme Court |
Parties | STATE of Connecticut v. Kenneth GRIGGS. |
Cameron Dorman, special public defender, for the appellant (defendant).
Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Vicki Melchiorre, senior assistant state's attorney, and Chris Pelosi, assistant state's attorney, for the appellee (state).
ROGERS, C.J., and NORCOTT, KATZ, PALMER and ZARELLA, Js.
The defendant, Kenneth Griggs, appeals1 from the judgment of conviction rendered by the trial court, Hon. John F. Mulcahy, judge trial referee, after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49(a)(2) and 53a-54a, burglary in the first degree in violation of General Statutes § 53a-101(a)(2), robbery in the first degree in violation of General Statutes § 53a-134(a)(1), larceny in the first degree in violation of General Statutes § 53a-122(a)(3), and larceny in the second degree in violation of General Statutes § 53a-123(a)(3).2 Thereafter, the defendant appealed, claiming that the trial court improperly: (1) instructed the jury on the crime of attempted murder; (2) admitted the testimony of the state's inspector; and (3) admitted evidence of the defendant's prior domestic violence convictions. We disagree with the defendant and affirm the judgment of the trial court.
The jury reasonably could have found the following facts. The relationship between the victim, Charles Gibbons, who is seventy-seven years old, and the defendant is of long standing. The victim, a friend of the defendant's father, had known the defendant since he was a child and had assisted the defendant in paying his child support obligations by hiring him to perform work in the apartment building that the victim manages and by lending him money.3 The sudden souring of that relationship forms the basis of this criminal appeal. Late on the night of November 5, 2004, the intoxicated defendant entered a nearby sports bar and claimed that the victim had called him for help and that he needed to enter the victim's apartment building. A sports bar employee, who was familiar with the victim and had a key to his building, accompanied the defendant to the victim's apartment with a bouncer from the bar because she was hesitant to permit the defendant to enter the building unaccompanied. The victim, however, had not called the defendant for help, and the defendant changed his story when the victim answered the door, claiming that he was just stopping by to check on him.
The next day, the victim arrived at the parking lot adjacent to his building. The victim, who has emphysema and uses a portable oxygen tank, was having difficulty breathing and asked a parking lot employee to help him carry groceries up to his apartment while he rested on the stair landing. After the parking lot employee deposited the groceries, he returned the victim's keys and left, while the victim continued up the stairs to his apartment, which was the only occupied apartment on the sixth floor. As the victim opened the door to his apartment, the defendant came up from behind, hit him in the head with the oxygen tank, struggled with him, and pushed him backwards down the metal spiral staircase. The victim recognized the defendant, despite his glasses having been knocked off,4 and questioned him by name,5 to which the defendant replied, "I'm going to kill you, you son of a bitch." During the struggle, the defendant took $3600 in cash from the victim, along with his car keys, and said, The defendant then picked up the victim's cell phone, which had landed a short distance away, smiled and said, "[Y]ou won't be needing this." The defendant left the victim lying injured and bleeding on the floor, threw the cell phone in the trash can in the lobby and drove away in the victim's car, at which point he was observed by the sports bar bouncer, who recognized the defendant as wearing the same clothes from the night before.6
On November 7, 2004, after becoming concerned because they had not seen the victim, and because his apartment light had been left on, two of the victim's acquaintances went to his apartment. They found the victim conscious but lying injured on the floor at the bottom of the stairs in a pool of blood with no supplemental oxygen. He was found approximately twenty-one hours after the incident, and after he had tried and failed to reach the nearby fire alarm to call for help. After being transported by ambulance to the emergency room, the victim was diagnosed with bruises, lacerations, a fractured left clavicle, dehydration and early renal failure. The victim spent a week in the hospital, followed by approximately four to five months of physical therapy. He also had to use a wheelchair for some time, and was in a scooter at the time of trial.
The victim reported the November 6 incident to the police and a warrant was issued for the defendant's arrest. On November 22, 2004, the defendant notified his probation officer7 that he was aware of the outstanding arrest warrant and thereafter the defendant turned himself in to the Hartford police.
The defendant pleaded not guilty to all of the charges and elected a jury trial. The defendant testified in his own defense, claiming that he had been drinking on the day of the incident and that he went to see the victim, who was not at home. The defendant testified that after he napped and then left the apartment for a brief period, he returned to the sixth floor of the victim's apartment building and found him lying injured at the bottom of the stairs. The victim refused the defendant's assistance and falsely accused him of theft. In response, the defendant testified that he became confused and panicked, took the victim's cell phone, which did not appear to be functioning properly because it had no reception or power, and either threw the phone in the trash can or placed it on the security desk in the lobby.8 The defendant also testified that the victim did not appear to be hurt severely or to want assistance.9
Despite the defendant's testimony, the jury found him guilty of the crimes charged, and the trial court rendered judgment in accordance with the jury's verdict. This appeal followed.
I
The defendant's first claim on appeal is that the trial court improperly instructed the jury on the crime of attempted murder because the charge, which included the four substantial steps that the state had alleged in the bill of particulars,10 was inadequate and misleading.11 Specifically, the defendant challenges the trial court's jury instruction on attempted murder as alleged by the bill of particular's fourth substantial step, which charged that the defendant had taken a substantial step toward the crime of murder when, "[a]fter observing the victim ... lying on the floor bleeding, [the defendant] [took] his cellphone away from him and [failed to call] for help for him."12 The defendant first argues that the fourth substantial step charged was legally insufficient to constitute a substantial step toward the crime of murder because the defendant had a duty to act, that is, to call for help, only if he had created the peril suffered by the victim. Therefore, the defendant argues, the trial court should have instructed the jury that the fourth substantial step required a finding by the jury either that the defendant had hit the victim on the head with the oxygen tank (the first substantial step charged) or that he had pushed the victim down the stairs (the second substantial step charged). The defendant also argues that the trial court improperly failed to instruct the jury on the predicate facts necessary to find the defendant guilty of attempted murder, namely, that the jury must find that, in removing the victim's cell phone and failing to call for help, the defendant was aware of the serious nature of the victim's injuries, that he believed that taking the victim's cell phone likely would prevent the victim from seeking assistance, and that the victim's cell phone was within the victim's reach and functioning properly because, otherwise, its removal would not have further endangered the victim.
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