State v. Guthridge

• Decision Date: 06 December 1972
• Citation: 164 Conn. 145,318 A.2d 87
• Parties: STATE of Connecticut v. Robert GUTHRIDGE.
• Court: Connecticut Supreme Court

Page 87

318 A.2d 87

164 Conn. 145

STATE of Connecticut v. Robert GUTHRIDGE.

Supreme Court of Connecticut.

Dec. 6, 1972.

Certiorari Denied March 19, 1973. See 93 S.Ct. 1519.

James A. Wade, Sp. Public Defender, for appellant (defendant).

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

Before HOUSE, C.J., and SHAPIRO, LOUISELLE, MacDONALD and BOGDANSKI, JJ.

MacDONALD, Associate Justice.

The defendant Robert Guthridge was found guilty by a jury of the crimes of robbery with violence in violation of § 53-14 of the General Statutes, binding with intent to commit a crime in violation of § 53-19, and carrying a weapon without a permit in violation of §§ 29-35 and 29-37. He has appealed from the judgment entered on the verdict, assigning error to various portions of the court's charge, to several rulings made during the trial, and to the court's refusal to find certain facts claimed by the defendant to be material and to have been proved.

In considering first the errors claimed with respect to the finding, it would serve no purpose to discuss in detail the numerous requests set forth in the draft finding since, from our examination of the record, we have concluded that the court's finding contained a statement of the facts sufficient to enable us to test the charge and review the rulings on evidence. Practice Book § 635. 'No corrections can be made to the finding which would benefit the defendant in presenting the questions of law which . . . (he) wishes to have reviewed by this court.' State v. Carnegie, 158 Conn. 264, 266, 259 A.2d 628, 629, cert. denied, 396 U.S. 992, 90 S.Ct. 488, 24 L.Ed.2d 455. We have considered also the argument made in the defendant's brief that the court's inclusion in the finding of certain paragraphs in preference to those requested by him violates his right to the effective assistance of counsel. In specifically claiming that '(t)he court should include in its finding 'all facts which * * * (it) finds proven which are claimed to be relevant and material to the questions of law raised," he cites as his authority Cappiello v. Haselman, 154 Conn. 490, 491, 227 A.2d 79, 80, a case tried to the court and not, as here, to a jury. We would point out that under the provisions of Practice Book § 635, the court in a jury case does not find facts but 'a statement of enough of the facts, relevant thereto, which each of the parties offered evidence to prove and claimed to have proved to make possible a review of the error claimed.' 'The wholesale attack on the finding tends to cloud the real issue and cast doubt on the merits of the defendant('s) claims. . . . A litigant may not force into the claims of proof of his adversary factual matters which are objectionable to the latter and upon which he does not rely.' Franks v. Lockwood, 146 Conn. 273, 275, 276, 150 A.2d 215, 217. We find no merit to the defendant's attacks on the finding.

The state offered evidence to prove and claimed that it had proved the following facts: On April 19, 1970, at approximately 11 p.m., Louis Reid, Sr., hereinafter referred to as Reid, was in the kitchen of his home in Hartford, Connecticut, with his wife, Irene Reid, his sons Louis Reid, Jr., age 15, Donald Reid, age 12, and his nephew, Levi Compton, age 12. Reid sent Louis and Levi to take out the trash, and when they returned, a man armed with a shotgun and later identified as Sylvester Cooley entered the apartment with them and pointed the gun at Reid. Mrs. Reid, Louis, Jr., and Levi were still present in the kitchen but Donald at the time was in a bedroom. Two other men, one tall and the other short, also came into the kitchen and each carried a small gun. The apartment was well-illuminated and Reid recognized the three men, one of whom was the defendant, as individuals he had seen prior to the day of the robbery. Reid had seen the defendant in his store and on the street a total of approximately eight to ten times prior to April 19, 1970. When the defendant entered the apartment he approached Reid, who saw the defendant's face and also saw that he had a gun. The defendant tied and bound the occupants of the Reid apartment, and, as he was tying Reid, Reid again observed the defendant's face and also observed him as he bound the others. The defendant took Reid's wallet and Mrs. Reid saw the men remove money from it. Louis Reid, Jr., saw the defendant point a gun at Reid when the 'big guy' took the money. The defendant then went into the bedroom where Reid previously had hidden some $950 to $1000 and after about thirty minutes the three men left the apartment.

When Reid freed himself, he went into his bedroom and discovered that the approximately $950 to $1000 which had been hidden there was missing. When a policeman came to the apartment, Reid told him that he could recognize the robbers if he saw them again and that they had taken two rifles and about $900 to $1000. When the policeman arrived, the apartment 'looked like it had been ransacked,' and some members of the Reid family were still tied up. That same evening Reid went to police headquarters where Detective William Kearns, Jr., showed him eight photographs in sequence with the defendant's picture first, and Sylvester Cooley's picture second. From the photographs Reid was able to identify the defendant and Sylvester Cooley as two of the robbers. On the night of the robbery Mrs. Reid also went to police headquarters with Donald Reid, Louis, Jr., and Levi Compton, and they were shown some or all of the same photographs. Mrs. Reid identified Sylvester Cooley but did not identify the defendant; Louis Reid, Jr., and Donald Reid identified both Cooley and the defendant; Levi Compton could identify only Codley. Reid, Mrs. Reid, Louis Reid, Jr., Donald Reid and Levi Compton were each alone when making these identifications. The police did not mention the defendant to the Reid family or to Levi Compton before they viewed the photographs, nor did the police allow them to see the names on the back of the photographs prior to making their separate identifications.

The defendant offered evidence to prove and claimed to have proved the following facts: On April 24, 1970, the defendant was arrested by members of the Hartford police department and was taken to police headquarters where he remained alone for about two hours in a small room. The police then told the defendant that they had someone outside and asked the defendant if he wanted that person to look at him. The defendant replied that he did not. A short time later the police brought Reid into the room and he identified the defendant as one of the men who had robbed him.

On October 6, 1970, the defendant was brought to trial and a preliminary hearing was held in the absence of the jury to determine the admissibility of certain evidence concerning his identification by witnesses. The witnesses were sequestered by agreement of the state and the defendant. At this hearing Reid, Mrs. Reid, Louis Reid, Jr., and Donald Reid were asked to identify the defendant, who was seated next to his counsel and was the only black person in the courtroom. Reid and Louis Reid, Jr., identified the defendant but Mrs. Reid could not and Donald testified that he was not sure of his identification. The next day in the presence of the jury the entire family identified the defendant and Donald Reid's testimony regarding the uncertainty of his identification of the previous day was read to the jury. Mrs. Reid testified that she did 'recognize' the defendant in the courtroom the day before and she admitted that she had been unable to identify him from the photographs shown to her the night of the robbery.

I

The first assignment of error pressed by the defendant is that the court erred in charging the jury as appears below. ¹ He claims that this charge was erroneous because it unfairly singled out his testimony for adverse comment, because it was inconsistent with the presumption of innocence and because it suggested that his testimony was entitled to less weight than that of any other witness. We find no merit in this contention. The rule is well settled in this state that the court may advise the jury that in weighingthe credibility of an accused's testimony they can consider his interest in the outcome of the trial. State v. Palko, 122 Conn. 529, 534, 191 A. 320, aff'd, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; State v. Schleifer, 102 Conn. 708, 725, 130 A. 184. In addition, it is clear from the charge that the jury, far from being requested to place the accused in a special category, were instructed that he 'stands before you just like any other witness and is entitled to the same considerations and must have his testimony measured in the same way as that of any other witness.' This portion of the charge was phrased so as not to place the defendant apart, and served to answer any question raised as to the treatment to be accorded his testimony.

The defendant also assigns error to the charge as noted below ² because it failed specifically to advise the jury that they could not infer the defendant's guilt of the crime charged simply because he had previously been convicted of felonies. He argues in his brief that to say simply that the felony convictions may be used 'for no other purpose' than determining the accused's credibility 'presupposes a high degree of sophistication on the part of the jurors that they will not reach an inference as to the defendant's guilt on the present charge.' We reject this contention. The charge clearly precluded the jury from using the prior convictions for any purpose other than that of determining the defendant's credibility.

The defendant next claims that the court erred in failing to charge the jury with respect to an entire stipulation entered into between the state and the defendant. ³ The gist of this objection is that the court focused only on so much of...