State v. Hardy

• Decision Date: 09 May 2006
• Docket Number: No. 17324.,17324.
• Citation: 278 Conn. 113,896 A.2d 755
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Raymond HARDY.

896 A.2d 755

278 Conn. 113

STATE of Connecticut v. Raymond HARDY.

No. 17324.

Supreme Court of Connecticut.

Argued November 28, 2005.

Decided May 9, 2006.

Deborah G. Stevenson, special public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael DeJoseph, deputy assistant state's attorney, for the appellee (state).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ and ZARELLA, Js.^*

Opinion

SULLIVAN, C.J.

The defendant, Raymond Hardy, was convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a)(2)¹ after a trial to the court. The Appellate Court affirmed the judgment of conviction in part and reversed it in part. State v. Hardy, 85 Conn.App. 708, 719, 858 A.2d 845 (2004). We granted the defendant's petition for certification to appeal from the judgment of the Appellate Court as to the following issue: "Does a `deadly weapon' as defined in General Statutes § 53a-3 (6)² require that a shot be discharged by gunpowder?"³ State v. Hardy, 272 Conn. 906, 863 A.2d 699 (2004). We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts and procedural history. "On December 9, 2000, the victim, an employee of Norwalk Taxi, was dispatched to 12 North Taylor Avenue in Norwalk. Upon arrival, Leland Brown approached the victim's taxicab from the front of the vehicle and got in through the back door on the driver's side. The victim turned his head to ask Brown where he wanted to go and Brown put the barrel portion of a gun to the victim's neck. Brown demanded that the victim give him all of his money and, in response, the victim gave him more than $800 in cash. Brown then exited the taxicab, and the victim informed his dispatcher of the incident. The dispatcher notified the police and, shortly thereafter, the police arrived at the scene of the robbery. The victim told the police that the robber was an African-American male who wore dark jeans, a jacket patterned in camouflage or animal print and a wool hat. The victim also told the police that one of the bills stolen had an order for Chinese food written on it in brown marker.

"After Brown exited the taxicab, he and the defendant, who waited nearby, ran back to the defendant's apartment at 16 Ferris Avenue. While running, the men were spotted by Tirso Gomez, a United States Postal Service employee who was working in the area. A short time later, Gomez was questioned by the police. Gomez informed the police that he saw the defendant and another man running toward the defendant's apartment from the direction of the robbery, which was approximately one-half block away. Gomez was familiar with the defendant, provided the police the defendant's name and address, and told them that the defendant was wearing a yellow jacket or sweater and that one of the men was wearing a cap.

"Acting on that information, the police surrounded 16 Ferris Avenue and began calling the telephone in the defendant's apartment. Eventually, Brown exited the building, wearing a camouflage jacket and a hat, and was arrested and taken into custody. The police searched Brown and found $339 on his person, including a bill that `had some kind of writing on it.' Outside the defendant's apartment, the victim identified Brown as the man who robbed him earlier that day.

"Eventually, the police forcibly entered the defendant's apartment. Once inside, the police found a silver Crosman air pistol hidden in a clothes hamper between the defendant's bedroom and his mother's bedroom, an information manual for the air pistol, and the defendant, wearing a yellow and gray sweater, hiding underneath his couch. The defendant was arrested and, after he was in custody, told the police that the rest of the money taken during the robbery was hidden in his videocassette recorder. The police returned to the defendant's apartment and recovered an additional $555 from inside the videocassette recorder in his bedroom.

"The defendant was tried under the accessory theory of liability and was convicted of robbery in the first degree in violation of § 53a-134 (a)(2) and criminal use of a firearm or electronic defense weapon in violation of [General Statutes] § 53a-216. The court sentenced the defendant to twenty years incarceration, suspended after ten years, on the robbery conviction, five years incarceration to run concurrent to his twenty year sentence on his conviction of criminal use of a firearm or electronic defense weapon, and five years probation." State v. Hardy, supra, 85 Conn. App. at 710-12, 858 A.2d 845.

The following additional facts and procedural history are relevant to our resolution of the certified issue. Evidence presented at trial established that the air pistol found in the defendant's apartment used carbon dioxide cylinders as a propellant and was designed to shoot .177 caliber pellets. Although the pistol was unloaded when it was found, it was tested by a police detective and was operational. The state also submitted as a full exhibit the pistol's operating manual, which stated that the pistol was "NOT A TOY. . . . MISUSE OR CARELESS USE MAY CAUSE SERIOUS INJURY OR DEATH. MAY BE DANGEROUS UP TO 400 YARDS. . . ."⁴ The state argued to the court that, as a matter of common sense, the gun, particularly when used at close range, could be a deadly weapon and could cause serious physical injury. The defendant argued that the pellet pistol did not use gunpowder and could not cause death or serious physical injury and, therefore, did not fit within the statutory definition of a deadly weapon.

The Appellate Court, sua sponte, reversed the defendant's conviction of criminal use of a firearm and directed the trial court to vacate that conviction and to resentence the defendant accordingly. State v. Hardy, supra, 85 Conn.App. at 719, 858 A.2d 845.⁵ The court affirmed the judgment in all other respects.

On appeal to this court, the defendant challenges his conviction under § 53a-134 (a)(2) of robbery in the first degree, which required proof that he was armed with a deadly weapon, on the ground that the air gun used by the defendant was not a deadly weapon. He argues that deadly weapons that discharge shots, as defined in § 53a-3 (6), are necessarily firearms, which discharge shots by gunpowder, and, therefore, the Appellate Court improperly concluded that the air pistol, which does not use gunpowder, was a deadly weapon. See id., at 718, 858 A.2d 845. In response, the state claims: (1) the Appellate Court properly concluded that the air pistol was a weapon from which a shot may be discharged within the meaning of § 53a-3 (6); and (2) in the alternative, even if we find that the trial court improperly concluded that deadly weapons must discharge shots by use of gunpowder, the state presented sufficient evidence for the trial court to find the defendant guilty of the lesser included offense of robbery in the third degree under General Statutes § 53a-136. We agree with the state's first claim, and thus need not reach its second.

Whether § 53a-3 (6) requires that the shot be discharged by gunpowder is a question of statutory interpretation. "Statutory construction is a question of law and therefore our review is plenary." (Internal quotation marks omitted.) State v. Ramos, 271 Conn. 785, 791, 860 A.2d 249 (2004).

"The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z. "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly." General Statutes § 1-1(a).

With these principles in mind, we begin by examining the language of § 53a-3 (6). Section 53a-3 (6) defines a "`[d]eadly weapon'" in relevant part as "any weapon, whether loaded or unloaded, from which a shot may be discharged . . . . The definition of `deadly weapon' in this subdivision shall be deemed not to apply to section 29-38 or 53-206 . . . ." Thus, the legislature has defined deadly weapon to mean any weapon from which a shot may be discharged. The defendant does not claim that the air gun was not a weapon or that it did not fire shots. Instead, he claims that the "discharge" of the weapon, as used in § 53a-3 (6), must take place through the use of gunpowder. We disagree.

First, the plain language of § 53a-3 (6) does not require that the shot be discharged by gunpowder. Rather, the statute refers to "any weapon, whether loaded or unloaded . . . from which a shot may be discharged . . . ." (Emphasis added.) Had the legislature intended to include in its definition only those weapons that discharged by use of gunpowder, it could have done so expressly through the language of the statute. See State v. Payne, 240 Conn. 766, 776, 695 A.2d 525 (1997).

Second, although this court previously has not considered the question before us, the Appellate Court has considered it indirectly and has suggested that an air pistol is a deadly weapon. In State v. Osman, 21 Conn.App. 299, 300-301, 305, 573 A.2d 743 (1990), the defendant was charged with robbery in the first degree involving the use of a dangerous instrument under § 53a-134 (a)(3)⁶ after he robbed a convenience store and threatened to shoot a store clerk with an unloaded.177 Crosman air pistol. The Appellate Court, in determining whether the unloaded air pistol could be considered a dangerous instrument as defined by § 53a-3 (7),⁷ discussed...