State v. Jacobowitz

Decision Date20 January 1981
Citation182 Conn. 585,438 A.2d 792
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Harold JACOBOWITZ.

Gilbert Shasha and Barry J. Ward, New London, for appellant-appellee (defendant).

Stuart M. Schimelman, Asst. State's Atty., with whom, on the brief, was C. Robert Satti, State's Atty., New London, for appellee-appellant (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

PETERS, Associate Justice.

This appeal contests the propriety of a second substituted information by which the state, after the commencement of trial, charged the defendant, Harold Jacobowitz, with the crime of threatening after it had originally charged him with the crime of attempted murder. The defendant was also charged with a second count, attempted assault in the first degree, a charge not amended by the second substituted information. The trial court, Edelberg, J., granted the defendant's motion for acquittal on the assault count, and the jury found the defendant guilty of threatening. The defendant unsuccessfully moved for acquittal, for arrest of judgment and for a new trial. Thereafter he appealed from the judgment of conviction on the count of threatening and the state cross appealed from his acquittal on the count of assault.

The procedural history of this case is not in dispute. The state, by a single count information dated July 28, 1978, originally charged the defendant with attempted murder in violation of General Statutes §§ 53a-49(a)(1) and 53a-54a(a). In response to the defendant's motion for a bill of particulars, the state on June 18, 1979, filed a first substituted information in two counts. The state charged, in the first count, that the defendant on or about July 11, 1978, at approximately 9:10 p. m., at his premises at Old Colchester Road, Montville, committed attempted murder in violation of General Statutes §§ 53a-49(a)(2) and 53a-54a(a) 1 when, with intent to cause the death of another, he pointed a deadly weapon, a revolver, at the victim and fired said weapon at the victim. The second count charged that the defendant, at the same time and place, committed attempted assault in the first degree, in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(3) 2 when, under circumstances evincing an extreme indifference to human life, he pointed a deadly weapon, a revolver, at the victim and fired said weapon at the victim. This first substituted information was the governing document pursuant to which the case went to trial.

At the close of the presentation of the state's case to the jury, the state asked for and received the permission of the court to file a second substituted information. This amended the first count by deleting the charge of attempted murder and charged instead the crime of threatening in violation of General Statutes § 53a-62(a)(1), 3 at Old Colchester Road in Montville, on or about July 11, 1978. The new information did not specify the hour at which the crime was alleged to have been committed, nor did it particularize the manner of its commission. Although the defendant took proper exception to the substitution of this new information he requested neither a new bill of particulars nor a continuance.

The evidence already adduced by the state at the time when the second substituted information was filed would have allowed the jury to find the following facts. The incident out of which the charges arose occurred at the premises of the defendant on Old Colchester Road in Montville. On July 11, 1978, at approximately 9 p. m., Thomas McKittrick, a New London deputy sheriff, went to the premises in order to serve the defendant with divorce papers. The defendant, when informed of the purpose of McKittrick's visit, abused him verbally and pointed a revolver at him. The defendant fired his revolver, but did not hit McKittrick, who had fallen to the ground. Although McKittrick heard the noise of a revolver's discharge, he did not see it being aimed or fired, and did not know whether he would have been hit had he not ducked. He was scared by this and ran to his vehicle in fear. The defendant followed him there, threw the divorce papers back into the car, and, revolver in hand, warned McKittrick that he would blow McKittrick's brains out if McKittrick told anyone about the incident.

The state was concerned that these facts might be insufficient to establish the requisite intent for attempted murder, when it discovered at trial that McKittrick could not testify as to where the gun had been pointed at the time of its discharge. Neither the weapon nor a bullet was ever found, nor could McKittrick say whether the revolver was firing blanks or live ammunition. McKittrick admitted that the defendant could have killed him had the defendant wanted to do so. Further, the defendant shortly after the incident, spoke to friends of chasing someone away without hurting him.

The state put forward no further evidence after the contested amendment of the information. The defendant offered an alibi defense. The defendant and two of his business associates testified that they had been at an inn some 15-16 miles distant at the time of the incident. The theory put forward by the defense was that some other person with access to his house might have been involved in the altercation with McKittrick.

I

In his appeal, the defendant raises two issues. Did the trial court err in permitting the state to substitute, after presentation of the state's case, a new information charging threatening rather than attempted murder? Did the trial court err in its charge to the jury concerning alibi testimony?

The basic principles that govern the state's right to amend its pleadings during the course of a criminal trial are well settled. Practice Book, 1978, § 624 provides, in relevant part: "After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced." The state's right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U.S.Const., amend. VI; Conn.Const., art. I § 8. Unless the original and the amended informations charge the defendant with the same crime, as was the case in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), amendment is permissible only to charge a lesser included offense. The constitutional right to notice is satisfied as to lesser included offenses because, "where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses. See Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S.Ct. 1044, 1047, 92 L.Ed. 1409 (1948); Walker v. United States, 418 F.2d 1116, 1119 (D.C. Cir. 1969); State v. Conklin, 115 N.H. 331, 335, 341 A.2d 770 (1975); State v. Daniels, 223 Kan. 266, 271, 573 P.2d 607 (1977)." State v. Rodriguez, 180 Conn. 382, 403, 429 A.2d 919 (1980).

In the case before us, the central issue with respect to the substitution of the second amended information is, therefore, whether the crime of threatening is a lesser included offense encompassed within the originally charged crime of attempted murder. We have recently had a number of occasions to restate, in the context of instructions to the jury, what constitutes a lesser included offense. See State v. Tinsley, 181 Conn. 388, 392, 435 A.2d 1002 (1980); State v. Morin, 180 Conn. 599, 602-04, 430 A.2d 1297 (1980); State v. Rodriguez,, supra, 180 Conn. at 403, 429 A.2d 919; State v. Whistnant, 179 Conn. 576, 586, 427 A.2d 414 (1980). The criteria we there developed, with the exception of the first criterion of a request for a jury instruction, are equally relevant here. A crime is a lesser included offense if, and only if, the following conditions of State v. Tinsley, supra, are met: "(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) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies 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." For present purposes, it is the second criterion that is the most debatable. Is it possible, under the specific allegations of the information and the bill of particulars, to attempt to murder someone by pointing a gun at him and firing it without first having threatened or attempted to threaten him? 4

It is difficult to characterize properly the relationship between a charge of attempted murder and a charge of threatening. Although there is obvious overlap between the two crimes, each requires proof of different elements: attempted murder under General Statutes §§...

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37 cases
  • State v. Osman, 6745
    • United States
    • Appellate Court of Connecticut
    • April 24, 1990
    ...would be exposed to possible conviction on the lesser included offense of third degree robbery in the first count. State v. Jacobowitz, 182 Conn. 585, 591, 438 A.2d 792 (1981); State v. Hudson, 14 Conn.App. 472, 476-77, 541 A.2d 539 (1988). The state requested and received a jury instructio......
  • State v. Coleman, 12812
    • United States
    • Appellate Court of Connecticut
    • July 1, 1996
    ...right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself." State v. Jacobowitz, 182 Conn. 585, 590-93, 438 A.2d 792 (1981), overruled in part on other grounds, State v. Welch, 224 Conn. 1, 615 A.2d 505 (1992). A defendant has adequate not......
  • State v. Adams, 12303
    • United States
    • Appellate Court of Connecticut
    • September 13, 1995
    ...Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend. State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981)." State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). For this reason, when determining whether an amended inform......
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    • Appellate Court of Connecticut
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    ...be convicted only of an offense of which he is deemed to have been given fair notice in the charging documents. State v. Jacobowitz, 182 Conn. 585, 590-91, 438 A.2d 792 (1981); State v. Rodriguez, supra, 180 Conn. at 399-402, 429 A.2d 919. That purpose is fully satisfied here. The defendant......
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