State v. Harris

• Decision Date: 15 February 1983
• Citation: 455 A.2d 342,189 Conn. 268
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lawrence HARRIS.

Page 342

455 A.2d 342

189 Conn. 268

STATE of Connecticut v. Lawrence HARRIS.

Supreme Court of Connecticut.

Argued Dec. 3, 1982.

Decision Released Feb. 15, 1983.

Kenneth Rosenthal, Asst. Public Defender, with whom, on brief, was David F. Egan, Asst. Public Defender, for appellant (defendant).

Roland D. Fasano, Asst. State's Atty., with whom, on brief, was Arnold Markle, State's Atty., for appellee (state).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

GRILLO, Associate Justice.

By two separate informations, the defendant was charged with three counts of robbery in the first degree. ¹ Specifically the state charged violations of General Statutes § 53a-134(a)(4), alleging that the defendant or another participant in the crimes displayed or threatened the use of what he represented by his words or conduct to be a pistol, revolver or other firearm. As all three robberies occurred in virtually the same location, only minutes apart, the informations were consolidated for trial. After a trial to a jury, the defendant was found guilty as charged. In this appeal from the judgments rendered, the defendant claims error in the refusal of the trial court to charge the jury on the offense of robbery in the second degree ² as a lesser included offense.

The jury might have found the following facts relevant to the resolution of the present appeal: On March 18, 1980, each of the three complaining witnesses was robbed at gunpoint in the County Street area after leaving the New Haven Correctional Center. Items of personal property, including two pocketbooks, were taken from the victims. All three victims identified the defendant as the perpetrator of the crimes.

The defendant testified that he and one William Jordan, while on their way to a package store, were in the general area at the time of the robberies and in fact witnessed part of the incidents, although he denied committing the crimes. The defendant stated that when he and Jordan returned to the defendant's home approximately fifteen minutes later he found his brother, Silas Harris, and one Albert Eaddy in his bedroom. Eaddy possessed a toy pistol and was going through two pocketbooks.

Jordan testified that prior to the robberies he had observed Eaddy carrying a toy gun in the vicinity of the New Haven Correctional Institute. ³ Subsequently, on his way back from the liquor store with the defendant, he saw Eaddy, who was still in possession of the toy pistol, running into an alley and away from the scene of the robberies. As he was also present in the bedroom upon returning to the defendant's residence, he once again observed Eaddy in possession of the toy pistol and what was apparently a purse.

The defendant's brother, Silas Harris, testified that he and Eaddy committed two of the robberies in the County Street area on March 18. He further represented that Eaddy was in possession of a gun, and that after the robberies they proceeded to the defendant's residence.

From our examination of the record before us, it is apparent that defense counsel adopted a two-tier strategy in defending against the first degree robbery charges. First, after filing a notice of an alibi defense, the defendant presented evidence that, although he was in the general area at the time of the crimes, he was not involved as either a principal or a participant, and further that Silas Harris and Eaddy actually perpetrated the crimes. The trial court charged the jury relative to the alibi defense. Second, the defendant attempted to show through proffered testimony that the gun used in the commission of the crimes was in fact a toy gun incapable of firing a shot, a circumstance which would constitute an affirmative defense to a charge of robbery in the first degree; General Statutes § 53a-134(a)(4); and would thus reduce the crimes from robbery in the first degree to robbery in the second degree. See State v. Hawthorne, 175 Conn. 569, 573-74, 402 A.2d 759 (1978). On appeal, it is the defendant's contention that his introduction of evidence relating to the inoperability of the gun, coupled with the satisfaction of other prerequisites necessary for a lesser included offense instruction, required the trial court to charge the jury on robbery in the second degree as he requested.

It is the state's contention that the evidence presented linking Silas Harris and Eaddy to the crimes, conjoined with the evidence relevant to the existence of a toy gun, does not constitute an affirmative defense, but merely a denial of the allegations of the charge consistent with the defendant's alibi claim. The state asserts that evidence tending to show that the crimes were perpetrated with a toy pistol is immaterial to an affirmative defense, characterizing an affirmative defense claim as one which concedes the basic position of the state, yet nevertheless denies guilt based upon mitigating circumstances. Underscoring the inconsistent alternative positions of alibi and affirmative defense assumed by the defendant, the state fears that contrived defenses would result "[i]f a defendant could deny participation in a robbery, offer evidence of someone else's involvement using a toy gun, and still avail himself of the affirmative defense under § 53a-134(a)(4)." The state therefore concludes that to utilize the benefit of an affirmative defense claim, the defendant should "at least" concede his participation in the crime.

In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we set forth certain conditions which must be met before a charge on a lesser included offense will be given: "(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence introduced by either the state or the defendant, or by a combination of their proofs, which justified conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." The state concedes that the first two conditions have been met but insists that because of the inconsistent situation that would be created if an affirmative defense were allowed, conditions three and four cannot be fulfilled. We disagree.

Generally, inconsistent defenses may be interposed in a criminal case. United States v. Demma, 523 F.2d 981, 985 (9th Cir.1975); Whittaker v. United States, 108 U.S.App.D.C. 268, 281 F.2d 631, 632 (1960). That a defense is interposed which is inconsistent with the defendant's alibi theory does not preclude an instruction as to that defense. People v. Hansma, 84 Mich.App. 138, 144-45, 269 N.W.2d 504 (1978). "[T]he fact that one defense is on the theory that [the] accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses...." 22 C.J.S., Criminal Law § 54; see also Johnson v. United States, 138 U.S.App.D.C. 174, 426 F.2d 651, 656 (1970); United States v. Harbin, 377 F.2d 78, 80 (4th Cir.1967). To compel a defendant to admit guilt in order to invoke a defense effectively relieves the prosecution of proving his guilt beyond a reasonable doubt and frustrates the assertion of the defense itself and undermines its policy. People v. Perez, 62 Cal.2d 769, 776, 44 Cal.Rptr. 326, 401 P.2d 934 (1965).

The state, in advancing its claim, cites State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979), wherein this court held that "[a] claim of innocence or a denial of participation in the crime charged is not a legally recognized defense and does not entitle a defendant to a theory of defense charge." In Rosado, however, the defendant did not assert a recognized legal defense. This court, noting the plethora of affirmative defenses available to a defendant, held that when there is evidence indicating the availability of a recognized defense, a defendant is entitled as a matter of law to a theory of defense instruction. ⁴ Id., 708, 425 A.2d 108. Here there exists a recognized affirmative defense. General Statutes § 53a-134(a)(4).

Quite apart from whether the defendant might have been entitled to a "theory of defense" charge, the court was under a duty to instruct the jury upon any appropriate lesser offense included in the charge of robbery in the first degree. We now turn to a consideration of whether the conditions delineated within Whistnant as prerequisites to a lesser included offense instruction are...