State v. Morin

• Decision Date: 20 May 1980
• Citation: 180 Conn. 599,430 A.2d 1297
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Adrien M. MORIN.

Page 1297

430 A.2d 1297

180 Conn. 599

STATE of Connecticut v. Adrien M. MORIN.

Supreme Court of Connecticut.

Argued Nov. 8, 1979.

Decided May 20, 1980.

John K. Harris, Jr., Sp. Public Defender, for appellant (defendant).

Robert E. Beach, Asst. State's Atty., with whom was Harry S. Gaucher, Jr., State's Atty., for appellee (state).

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

LOISELLE, Associate Justice.

The defendant was tried by a jury of twelve upon an indictment charging him with felony murder. The jury returned a verdict of guilty. The defendant appealed from the judgment rendered on the verdict. The sole issue raised by the defendant is whether the trial court erred in refusing to instruct the jury on burglary in the first degree; General Statutes § 53a-101(a)(2); ¹ and robbery in the first degree; General Statutes § 53a-134(a)(1); ² as lesser offenses included in the indictment charging felony murder. General Statutes § 53a-54c. ³

"A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (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. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The record shows that the state requested an instruction to the jury on burglary and robbery as lesser included crimes ⁴ and that the defendant supported that request. The grand jury's indictment alleged "that at the City of Willimantic, in Windham County, on or about the 21st day of August, 1975, the said Adrien M. Morin, acting with two other persons, did commit a burglary and robbery, and in the course of and in furtherance of such crimes, said Adrien M. Morin caused the death of a person other than one of the participants, namely, the death of one Dominic Dipollina, late of 240 Walnut Street, in Willimantic, in violation of the provisions of § 53a-54c of the General Statutes of Connecticut." The state's request for an instruction on the lesser crimes and the terms of the indictment satisfy the first two criteria of the test established in State v. Whistnant, supra.

The third requirement of the rule is that there be some evidence which would justify conviction of the lesser offenses which were alleged in the indictment and for which instructions were requested. To make this determination it is necessary to review the evidence presented. Shortly after 11 p. m. on August 21, 1975, the Willimantic police department sent a police sergeant to 240 Walnut Street to investigate a possible burglary in progress. The sergeant met two other police officers at the scene upon his arrival. He noticed a light on in the basement. The sergeant and a neighbor entered the house through the front door which was slightly ajar and walked through the house to the den. There they found eighty-year-old Dominic Dipollina clothed in shorts and a T-shirt lying on his back on the floor. His legs were bloody, there was blood around his head, and he appeared to be in shock. They called an ambulance and one of the officers performed first aid.

An investigation showed that an upstairs window, which was intact earlier in the day, had been broken from the outside. Several neighbors had heard the sound of breaking glass at about 11 p. m. that evening. A palm print "lifted" from the window was subsequently identified as that of Adrien Morin. Several witnesses also saw three people run from the house shortly after 11 p. m., one of whom ran with a limp. A neighbor saw the three get into a maroon Chevrolet and drive away with the lights off. Adrien Morin ran with a limp and, at that time, the defendant's brother Ronald Morin drove a 1965 maroon Chevrolet.

The details of the crime were supplied by Ronald Morin, the defendant's brother, who testified under a grant of immunity. Ronald and another brother Lionel had painted Dipollina's house together in the summer of 1973. Their sister, Jeannine Baril, lived next door to Dipollina at 238 Walnut Street. In August, 1975, several days before the crime, Ronald and Adrien visited Jeannine at her house. When Adrien suggested that they go next door to "see if the old man has anything," Jeannine objected. Adrien told her not to get in his way. Ronald apparently broke up the confrontation.

On August 21, 1975, the night of the crime, Ronald, Adrien and an unnamed third party drove to Jeannine's house. On the way there, Adrien said he wanted to rob Dipollina. Ronald parked the car around the corner and went to Jeannine's house while Adrien went to Dipollina's house and looked in a window. Upon hearing a window break, Ronald went to the Dipollina home, entered through the front door and found Adrien grasping Dipollina by his shirt. Adrien pushed Dipollina onto a couch, took a wallet from his pocket and took money from another wallet. Ronald testified that he tried to convince Adrien to leave. Shortly thereafter, Ronald and the unnamed third party went to the basement to take beer, leaving Adrien alone upstairs with Dipollina. Ronald heard Dipollina cry out and implore Adrien to let him alone. When Ronald came back upstairs, Dipollina was unconscious but breathing. The three ran from the house and fled in the car with the $180 taken from one of the wallets.

This evidence was offered by the state. The defendant presented no evidence. The state's evidence justified a conviction for first degree burglary, ⁵ first degree robbery, ⁶ or both. State v. Rado, 172 Conn. 74, 75-77, 372 A.2d 159 (1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1335, 51 L.Ed.2d 598 (1977). The defendant has therefore established the third criterion of State v. Whistnant, supra.

With regard to the fourth and final criterion of State v. Whistnant, it is necessary to determine which elements differentiate first degree burglary and first degree robbery from felony murder, then to consider whether those elements were sufficiently in dispute to permit the jury consistently to find the defendant innocent of felony murder but guilty of burglary or robbery. General Statutes § 53a-54c which proscribes felony murder provides in pertinent part: "A person is guilty of murder when acting either alone or with one or more persons, he commits ... robbery (or) burglary ... and, in the course of and in furtherance of such crime ... he ... causes the death of a person other than one of the participants ...." ⁷ Since the definition of felony murder includes the crimes of robbery and burglary by name, the only pertinent elements of felony murder which remain to differentiate these lesser offenses from felony murder are encompassed by the words "... in the course of and in furtherance of such crime ... he ... causes the death of a person other than one of the participants ...."

The evidence reviewed above was uncontradicted by the defendant. There was no dispute at trial that Dipollina's injuries were inflicted in the course of and in furtherance of the crime. The only differentiating element which may have been in dispute, and then solely by virtue of cross-examination, was the cause of death. The evidence showed that Dipollina was beaten on August 21, 1975, but did not die until December 24, 1975. The state introduced witnesses to prove that the beating was the cause of death approximately four months later. One of Dipollina's daughters testified that before August 21, 1975, her father, though eighty years old, enjoyed a fairly vigorous life. He cared for his home, mowed his lawn, gardened, chopped wood, shoveled his driveway, and drove his truck every day to go shopping. She had visited her father on the day of the crime and he was well. At around midnight that evening she was called to the emergency room where she saw her father on a stretcher. He was just staring and didn't talk. The next day she returned to the hospital. Her father was dazed and in shock. His neck was purple, his lip stitched, his nose broken, and his arm discolored. One of his eyes was swollen almost shut. His daughter took him to her home. Upon his release from the hospital, Dipollina alternated between living at the houses of his two daughters. He had difficulty eating and sleeping and was afraid to be left alone. He was hospitalized again for three days after complaining that he could not swallow, then again returned to live with his daughters. On September 15, 1975, he was transferred to a convalescent home where he did not want to eat, became incoherent and had to be harnessed. Throughout this period he had difficulty swallowing and pains in his head. He was transferred to the hospital on October 7, 1975, where he died on December 24, 1975.

The state also called five physicians to testify to the cause of Dipollina's death. The doctor who treated him in the emergency room on the night of the crime testified that Dipollina had received more than one blow to the head, neck and arms, sustaining fractures in the nose and abrasions, lacerations and contusions on the neck, lip and forearms. His family doctor, whom he had been seeing for the past twelve years, testified that Dipollina's daughter had telephoned him two days after the crime and said that her father was experiencing a great deal of pain. Upon examination, the doctor determined that swelling in his neck prohibited Dipollina from eating and readmitted him to the hospital to check for further internal injuries. The family...