State v. Manley

• Decision Date: 02 April 1985
• Citation: 195 Conn. 567,489 A.2d 1024
• Parties: STATE of Connecticut v. John MANLEY.
• Court: Connecticut Supreme Court

Page 1024

489 A.2d 1024

195 Conn. 567

STATE of Connecticut v.John MANLEY.

Supreme Court of Connecticut.

Argued Dec. 12, 1984.

Decided April 2, 1985.

Jon C. Blue, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant(defendant).

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

Before ARTHUR H. HEALEY, PARSKEY, SHEA, DANNEHY and QUINN, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, John Manley, was charged by information with robbery in the first degree in violation of General Statutes § 53a-134(a)(2), ¹ larceny in the third degree in violation of General Statutes § 53a-124(a), ² and using a motor vehicle without the owner's permission in violation of General Statutes § 53a-119b.³All three charges arose from the same incident.After a jury trial the defendant was found guilty as charged.He appeals.

The jury could reasonably have found the following facts.On June 20, 1980, Ann Twaroski, a school teacher, was returning in the afternoon to her home on Pardee Place, New Haven.While she was attempting to parallel park her 1975 Oldsmobile Cutlass at the corner of Pardee and Fountain Streets, she noticed two young men sitting on a brick wall that surrounds the corner property.At the time, the doors to her vehicle were locked, and the driver's window was rolled down some five to six inches.Three other youths in the neighborhood had also observed these two men.

Twaroski's initial attempt to parallel park was not successful, and she prepared to pull out into the street for a second attempt.While the vehicle was stopped and her foot was on the brake, she turned her head from facing the rear of the vehicle towards the front, and suddenly became aware that one of the two men she had seen sitting on the wall was approaching the driver's side of her car.She heard "a voice" and "turned around," and at that point, when she saw him next to the car, she reached in vain to close the driver's side window.Later identified by her as the defendant, this man, "black, in his twenties, sunglasses on, a dark jacket," however, had reached through that partially opened window and unlocked the driver's side door on the inside.He then opened the driver's side door using the outside handle.

As he opened the door, the defendant said to Twaroski: "Move over or I will kill you.I have a gun."She then saw "a silver gun," the barrel of which "was fairly long and narrow."Twaroski did not comply with the defendant's demand, however.Instead, she resisted by screaming, grasping the car's steering wheel, and "blasting" the horn.The defendant then repeatedly struck her with his gun on her hands, shoulder, and head.He"ripped" her watch from her arm and attempted to remove her ring from her finger.During the struggle, the defendant demanded that Twaroski "move over" and, at one point, he placed his hand over her mouth.She finally managed to push the defendant so as to allow her escape from the vehicle, but she then either was pushed or fell face down in the middle of the road.⁴

Shawn Rothwell, a fifteen year old newspaper carrier at the time, had observed, prior to the incident, the two men as they alternated "getting up" from the wall in order to look into a nearby supermarket parking lot.To young Rothwell, the men appeared to be "nervous."He then observed the incident in progress and ran to get his father, Michael Rothwell.

Meanwhile, Twaroski's vehicle, which was still in gear, began to roll down the street as the defendant attempted to get fully inside.As Michael and Shawn Rothwell ran down the street towards the scene of the crime, the defendant, seeing them, left the car, raised the gun, and "fired" it in the direction of Michael Rothwell.The defendant entered the vehicle and drove away.When taken by the defendant, the vehicle contained Twaroski's purse, wallet, driver's license, cash in the amount of $64 to $67, a gold chain valued at $100, credit cards, eyeglasses, and school-related materials.Three other young neighbors also witnessed the incident.

Approximately thirty-five minutes later, Helen Myers observed the Twaroski vehicle parked on the northbound shoulder of the Wilbur Cross Parkway, "just outside of the [Wilbur Cross Parkway] tunnel" but still in New Haven.Myers, who had been visiting with a priest at her mother's house in the Twaroski neighborhood at the time of the incident, was aware of the general circumstances regarding the crime when she observed the vehicle, which she recognized as belonging to Twaroski.About five to ten minutes later when she arrived at a shopping center in Hamden, Myers called the New Haven police department and reported seeing the vehicle on the parkway.Within minutes, Connecticut State TrooperHarold Lufgren was dispatched to investigate the vehicle; he arrived there within twenty-five minutes of that dispatch.Lufgren found the Twaroski vehicle abandoned on the parkway shoulder approximately 1.7 miles from the scene of the crime with the car's engine still running.

The next afternoon, Wilburt Thorne, who lived a short distance from the defendant, found Twaroski's purse, wallet and identification papers in a parking lot by his home on Wilmot Road, New Haven, a three to five minute walk from the Wilbur Cross Parkway tunnel.⁵Thorne notified the police, and Twaroski's purse, wallet and papers were recovered and thereafter returned to her.Her money, gold chain and some of her credit cards were not recovered.Her watch, which the defendant had torn from her wrist, was found in the glove compartment of her abandoned automobile.

Later on the day of the actual incident, Twaroski, who was still "quite distraught," had been unable to identify positively her assailant from police photographs.At trial, she did identify the defendant as the perpetrator.The defendant was also implicated by latent fingerprint evidence processed from Twaroski's vehicle.Three such fingerprints were identified as the defendant's: a print of his left middle finger upside down on the top edge of the interior of the driver's door glass window and two prints of his right ring and little fingers on the top of the automatic transmission gear shift lever.

On appeal, the defendant claims that the trial court erred: (1) in refusing to charge on robbery in the third degree as a lesser included offense of robbery in the first degree; (2) in refusing during trial to admonish the jury that an earlier set of his fingerprints admitted into evidence could have been taken by the police for a purpose unrelated to crime; (3) in denying his request to charge the jury that fingerprint evidence standing alone is sufficient for a conviction only if the fingerprints were found under such circumstances that they could only have been impressed at the time of the crime; and (4) in denying his request to charge the jury on the dangers of misidentification and the factors to be considered in evaluating the likelihood of misidentification.⁶We find no error.

I

The defendant's most arguable claim is that the trial court erred in refusing to charge on robbery in the third degree as a lesser included offense of robbery in the first degree.In the first count of the information, the state charged the defendant with a violation of General Statutes § 53a-134(a)(2).This count specifically required the state to prove beyond a reasonable doubt that the defendant committed the crime of robbery;seeGeneral Statutes § 53a-133;⁷ while "armed with a deadly weapon, to wit: a pistol or revolver."General Statutes § 53a-134(a)(2).He contends that the trial court's failure to grant his timely written request to charge the jury on robbery in the third degree which requires no weapon be used as a lesser included offense compels a reversal of his conviction.The gravamen of his claim is that, because neither the actual weapon used nor any bullet was ever recovered, ⁸the court should have granted this request to charge on the lesser included offense.A careful review of the record in the trial court and the applicable law, however, require us to reject this claim.

"In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414(1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense.'A defendant is entitled to an instruction on a lesser offense if, and only if, ... (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 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.' "State v. Vass, 191 Conn. 604, 616-17, 469 A.2d 767(1983).

The focal question raised by the defendant's claim involves the fourth prong of the Whistnant test: whether the evidence of the element that differentiated the included offense of robbery in the third degree from robbery in the first degree, in this case the "armed with a deadly weapon" element, was "sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser."Id., 617, 469 A.2d 767;State v. Whistnant, supra."We must answer in the affirmative if viewing the evidence in the light most favorable to the defendant;People v. Shuman, 37 N.Y.2d 302, 304, 372 N.Y.S.2d 60, 333 N.E.2d 363(1975); reasonable minds could differ upon the existence or nonexistence of the element that distinguishes the...