State v. Kyles

• Decision Date: 21 April 1992
• Docket Number: No. 14131,14131
• Citation: 607 A.2d 355,221 Conn. 643
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Rodney KYLES.

Page 355

607 A.2d 355

221 Conn. 643

STATE of Connecticut v.Rodney KYLES.

No. 14131.

Supreme Court of Connecticut.

Argued Dec. 11, 1991.

Decided April 21, 1992.

Louis S. Avitabile, Sp. Public Defender, with whom were Denise Dishongh and Joshua R. Kricker, Sp. Public Defenders, for appellant(defendant).

James M. Ralls, Asst. State's Atty., with whom, on the brief, were John Connelly, State's Atty., and Marcia Smith and Bradford Ward, Asst. State's Attys., for appellee(state).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

BORDEN, Associate Justice.

The defendant, Rodney Kyles, was charged in a substitute information with, in count one, felony murder in violation of General Statutes § 53a-54c ¹ and, in count two, robbery in the first degree in violation of General Statutes § 53a-134(a)(2).² After a jury trial, the defendant was convicted on both counts.The defendant appealed to this court from the judgment of conviction by the trial court, McWeeney, J., pursuant to General Statutes § 51-199(b)(3).³

The defendant claims that the trial court improperly: (1) denied his motions for judgment of acquittal because, on the first count of the substitute information, the state presented insufficient evidence of the robbery underlying the felony murder as charged by the state and, on the second count, the state failed to prove that the defendant committed the robbery in the particular manner described in the substitute information; (2) denied his motion for a supplemental bill of particulars that requested the state to name, in count one of the substitute information, the victim or victims of the robbery underlying the felony murder; (3) denied his motion to suppress evidence seized from the stop and search of a vehicle; and (4) failed to charge the jury on general intent.We affirm.

The jury could reasonably have found the following facts.On the evening of October 8, 1988, Nathaniel Nelson, John Hofler, Moses Avila, and the defendant drove to Tajildeen Market in Waterbury.The defendant was carrying a .38 caliber handgun and Nelson had a sawed-off shotgun.Shortly thereafter, Jamel Gregg arrived at that location, carrying a .32 caliber handgun, and the five men drove around looking for a place to rob.They decided to "case out" a private gambling club at 267 Walnut Street in Waterbury and Hofler, Nelson and the defendant went inside the club to do so.While inside, they observed several elderly gentlemen playing cards with money on the table.After the three men returned to the car, the group decided that it was a good place to rob because many of the patrons were elderly and would not resist.

At approximately 11:15 p.m., Nelson, Hofler, Gregg and the defendant, with guns drawn, forced their way into the club yelling for the patrons to get on the floor.Avila stayed in the car with the motor running.Hofler, who was unarmed, collected the money from the card table.Two patrons, Charles Demon and Robert Jones, both had money on the table that was taken during the robbery.After another patron, Thomson Lyn, refused to lie on the floor and surrender his wallet, Nelson beat him on the head with the butt of the shotgun and Lyn fell to the floor.Soon after the assault on Lyn, another patron, Robert "Butch" Clark, came into the room from the bathroom and tried to leave the club.The defendant grabbed Clark by the back of the collar, pulled him back into the room and ordered him to lie on the floor.Clark grabbed the defendant's wrists and a struggle for the handgun ensued.During the struggle, the defendant fired two shots into Clark and both men ended up on the floor with Clark on top of the defendant.The defendant pushed Clark off of him and fired a third shot into Clark's chest.After the shooting, the four men ran out of the club, got into the car and drove off.Clark was rushed to the hospital, where he died from his gunshot wounds.

On November 3, 1989, the state, in its first substitute information, charged the defendant in count one with felony murder alleging that he"did commit robbery and in the course of and in furtherance of said robbery [the defendant] caused the death of Robert 'Butch' Clark ... by shooting the said Robert 'Butch' Clark with a gun."(Emphasis added.)In count two, the state charged the defendant with first degree robbery alleging that he"committed robbery and in the course of the commission of the robbery upon persons other than Robert 'Butch' Clark, he was armed with a deadly weapon, to wit: a gun."(Emphasis added.)On that same day, the state filed a bill of particulars that set forth the same facts.Neither the information nor the bill of particulars named the victim or victims of the robbery underlying the felony murder charged in the first count, or the victim or victims of the robbery in the first degree charged in the second count.

On April 25, 1990, the defendant filed a motion for a supplemental bill of particulars requesting the state to name, as to count one of the first substitute information, the victim or victims of the robbery underlying the charge of felony murder and, as to count two of that information, the victim or victims of the robbery in the first degree.Later that same day, however, before the state received the defendant's motion, the state filed a second substitute information that did not change count one but amended count two to allege that the defendant"committed robbery and in the course of the commission of the robbery upon Thomson Lyn and other persons not including Robert 'Butch' Clark, he was armed with a deadly weapon, to wit: a gun."(Emphasis added.)The state also filed a bill of particulars that set forth the same facts.Thus, the state's second substitute information named a specific robbery victim in count two, Thomson Lyn, but still did not name any robbery victim in count one.

At an April 25, 1990 hearing on the defendant's motion for a supplemental bill of particulars, the defendant stated that even though his motion applied to the first substitute information, he was "still claiming the motion for supplemental bill of particulars [for the second substitute information as to count one] because I'm still not satisfied [with the second substitute information] as there is still no allegation in count one as to who was robbed.I think I'm entitled to know who the victim of the robbery in count one is."The court, Heiman, J., denied the motion.

I

The defendant first claims that the trial court improperly denied his motions for judgment of acquittal on the first and second counts of the second substitute information because, on the first count, there was insufficient evidence to prove, as charged in the information, that Clark was robbed and because, on the second count, the state failed to prove that the defendant committed the robbery in the particular manner described.The state claims that the defendant's contention, as to count one, "basically depend[s] upon his own interpretation of the charging documents as to whom he was alleged to have robbed."The state argues that it was not required to prove that Clark was robbed, but was only required to prove that someone in the gambling club was robbed, which the state did prove.The state similarly contends that, as to count two, the state was not required to prove that Thomson Lyn was robbed, only that someone was robbed, which it did prove.We agree with the state.

A

As to count one, the defendant's claim, at bottom, is that the state limited the victim of the underlying robbery of the felony murder to Clark.The defendant argues that since there was no evidence presented by the state that Clark was robbed, the felony murder count must fall because the predicate felony was not proven by the state as charged.In support of his interpretation of count one, the defendant relies on the interpretation by the trial court, Heiman, J., of count one during an earlier pretrial hearing on a motion to dismiss.During the course of that hearing, Judge Heiman stated that the inference he drew from the language of the second count in the first substitute information, namely, that the robbery in the first degree was "upon a person other than Robert Clark," was that the victim of the robbery in the first count must have been Clark.The defendant claims that when ruling on his motion for judgment of acquittal, the court, McWeeny, J., "[h]aving decided to let Judge Heiman's interpretation [of the information] ... stand ... had a duty to abide by Judge Heiman's interpretation and grant the defendant's motion for judgment of acquittal on the ground that no evidence was presented to show that there was a felonious [robbery committed upon] Clark."This claim is without merit.

The plain language of count one did not limit the victim of the predicate robbery to Clark.Indeed, Clark's name was not even mentioned in that count.The defendant's interpretation of count one essentially treats Judge Heiman's remarks as having orally amended the state's information when, in fact, such an action is ordinarily within the province of the state.SeePractice Book§§ 623 and 624.The first count charged only that the defendant"did commit robbery."It made no mention of the names of the victims or how many persons may have been robbed.Contrary to the defendant's position, Judge McWeeny did not acquiesce in Judge Heiman's interpretation and, in his instructions to the jury, Judge McWeeny stated that the state need not prove that Clark was the robbery victim in count one.Therefore, under this information, since the state proved in count one that someone was robbed, namely Charles Demon and Robert Jones, there was sufficient evidence of the predicate robbery to convict the defendant of felony murder.⁴

B

As to count two, the defendant claims that his motion for judgment of acquittal should have been granted because the state failed to prove that the defendant had committed robbery in...