State v. Killenger

• Decision Date: 24 April 1984
• Citation: 475 A.2d 276,193 Conn. 48
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ralph KILLENGER. STATE of Connecticut v. Robert ESPOSITO.

Page 276

475 A.2d 276

193 Conn. 48

STATE of Connecticut v.Ralph KILLENGER.

STATE of Connecticut v.Robert ESPOSITO.

Supreme Court of Connecticut.

Argued Feb. 10, 1984.

Decided April 24, 1984.

Kenneth Rosenthal, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant(defendant in each case).

Guy W. Wolf III, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee(state).

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

GRILLO, Associate Justice.

This is an appeal from the conviction of two defendants, Robert Esposito and Ralph Killenger, on charges of first degree assault and first degree robbery.In this appeal, the defendants maintain that the trial court erred in failing to limit the state to proving that the instrument causing the victim's injuries was a hammer, as specified in the bill of particulars.They claim, also, that the court erred in failing to charge on the lesser included assault offenses based on reckless or criminally negligent conduct, and that closing arguments should have been recorded.

From the evidence presented at trial, the jury could reasonably have found the following facts: Shortly after midnight on February 2, 1978, the victim was on his way to his sister's home in New Haven.When his 1968 Pontiac stationwagon ran out of gas on Ferry Street near Le Andre's Bar, the victim stood by his car with a red plastic flashlight to alert oncoming traffic.After an older model Chevrolet approached from the direction of Le Andre's, the victim requested a push from the two males in the car who were later identified as the defendants.The Chevrolet, driven by Esposito, then pushed the stationwagon for a number of blocks, past a series of closed gas stations, finally stopping in the parking lot of John's Arco station.

The victim stopped his vehicle near the pumps of the gas station and got out in order to pay the defendants for their help.An argument ensued regarding the amount of payment for the defendants' assistance.Although the exact sequence of events is uncertain, there was testimony that the victim was "banged" into the stationwagon, then "slammed" into the car window.Killenger repeatedly punched the face of the victim, who struck back with his plastic flashlight.The force of the blows pushed the victim partially inside the rear window opening of the Pontiac.Killenger then released the victim, went back to the Chevrolet, returned with a hammer, and struck the victim on the head.Esposito then pulled the victim's wallet containing about $50 from his rear pants pocket and urged Killenger to hurry.As the defendants drove away in the Chevrolet, a witness observed the victim's legs being dragged from the passenger's side of the car.The witness further observed Killenger get out of the passenger side of the Chevrolet and strike the victim as he lay on the pavement.The defendants then drove away.The victim was eventually transported to Yale-New Haven Hospital, where he spent nine days.X-rays revealed that he sustained a depressed fracture of a skull bone, a broken nose, and a triple fracture of his left cheek bone.The depressed skull fracture measured approximately one inch in diameter and was circular in shape.In the opinion of the two doctors who treated the victim, the skull fracture could only have been inflicted by a hard, blunt, or solid object.

Thereafter, both defendants were charged in substituted informations with assault in the first degree and robbery in the first degree, tried together, and convicted of the offenses.Both offenses contain the element that a "dangerous instrument" be used in the commission of the crime.¹The informations did not specify the type of "dangerous instrument" which was allegedly employed.In a bill of particulars requested by the defendants, however, the state described the dangerous instrument as a hammer.At trial, the plastic flashlight was introduced into evidence.The hammer, however, was not introduced since it was never located.

On appeal, the defendants first argue that the court erred by failing to instruct in accordance with their exception that the jury could convict only if they found that a hammer had been used since the state was limited to proving the specific weapon contained in the bill of particulars.They assert a constitutional entitlement to be informed of the "nature and cause of the accusation" and are required to defend only against the charge alleged.They assert that due process requires that "significant factual elements" be defined before a criminal defendant is forced to trial.According to the defendants, these principles were violated when the jury was instructed that it could consider evidence that the dangerous instrument used in the assault was a flashlight.²

The defendants maintain that a focus of defense counsels' efforts at trial was the state's burden to establish the "dangerous instrument" element of the offenses.They argue that they assumed that the state would be limited by the bill of particulars to proving the use of a hammer.While a lack of particularity would have been a disadvantage to them in preparing their case, they claim to have been disadvantaged to an even greater extent by reliance on particulars later disregarded.Once a bill of particulars has been filed, the defendants argue that the state is limited to proving the offense in the exact manner described, ³ including the use of the particular instrument specified.

The state maintains that it does not matter whether a hammer or a flashlight was used.It contends that it is not necessary to show that the particular instrument named in the pleadings was used, as long as the instrument used was of the same generic character and used in a similar manner as the named instrument.We agree.

This particular issue of specificity in regard to the bill of particulars is one of first impression in this state.We herein adopt the position that "[a]lthough a pleading alleges that a specified instrument was used in committing the offense[s], it is not necessary to prove that the particular instrument or even the exact kind of instrument was used.The proof need only show that the instrument used was of the same generic character, and that the nature of the violence and the injury received were the same."3 Wharton's Criminal Procedure(12th Ed.) § 506.This is also the posture adopted by a number of other jurisdictions which have already had occasion to rule on this issue.

In People v. Alexander, 42 Misc.2d 927, 930, 249 N.Y.S.2d 275(1964), the court held that "[i]t makes no difference, therefore, that the evidence did not establish the use of a sawed-off rifle, as alleged in the indictment.It is sufficient that the implement employed was shown to have been a firearm of some description, falling within the general class of weapon alleged in the indictment."In Trest v. State, 409 So.2d 906, 909(Ala.App.1981), the court held that "[w]here the weapon designated in the indictment and the weapon proved at trial are of the same nature and character, there is no variance.The law does not require precise conformity in every particular where the weapon is alleged, but rather substantial proof of the means by which the offense was committed."In Bowers v. State, 145 Miss. 832, 111 So. 301(1927), the court noted that the indictment charged assault and battery with a deadly weapon, "to wit, a wrench," and the proof showed that a stick had been used.The court concluded that there was no material variation of the proof in support of the indictment.In Ricks v. State, 224 So.2d 413, 414(Fla.App.1969), the court, in a per curiam decision, found no merit in the defendant's claim of a material variance in the information where he was charged with assault with a deadly weapon, a brick, and the proof tended to show the assault was committed with a rock.Finally, in Davis v. State, 97 Ga.App. 342, 345, 103 S.E.2d 86(1958), the court held that the "rule is that there is no fatal variance when the weapon alleged is one which causes a certain type of wound, and the weapon used, as shown by the evidence, is one capable of effecting the same type of wound, although it is not the instrument named in the indictment, since the State is presumed to be in possession of information as to the type of injury inflicted but may not be able to determine exactly what weapon was used to bring about the result."

In the present case, the bill of particulars specified that the dangerous instrument was a hammer.The injury to the victim, a depressed skull fracture, was not in dispute.Whether that injury was caused by a blow with a hammer or with a flashlight is not determinative.⁴Both instruments used in the fashion testified to by the victim met the definition of dangerous instruments as outlined in the statute, ⁵ and both, when used to strike a victim, are of the same generic character.Accordingly, we reject the defendants' claim that if the jury found a flashlight was used rather than a hammer, they would have been entitled to acquittal.

Moreover, our decision in this case in no way undercuts, as the defendants suggest, the basic principles of fundamental fairness and fair notice to which all criminal defendants are entitled.The defendants argue that our decision will allow the prosecution to feel "free to roam at large--to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal."Russell v. United States, 369 U.S. 749, 768, 82 S.Ct. 1038, 1049, 8 L.Ed.2d 240(1962).Our holding today, however, does not sanction the conviction of a criminal defendant when significant factual elements are left undefined.Where, as here, the weapon designated in the bill of particulars and the one proved at trial are not identical, but rather of the same nature and character, this circumstance does not constitute a fatal variance.We...