State v. Morrill

• Decision Date: 10 July 1984
• Citation: 193 Conn. 602,478 A.2d 994
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Westbrook K. MORRILL.

Page 994

478 A.2d 994

193 Conn. 602

STATE of Connecticut v. Westbrook K. MORRILL.

Supreme Court of Connecticut.

Argued March 6, 1984.

Decided July 10, 1984.

Donald A. Browne, State's Atty., for appellant (state).

Jackie Chan, Danbury, for appellee (defendant).

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

ARTHUR H. HEALEY, Justice.

The defendant was arrested on February 22, 1982, pursuant to a bench warrant issued by the Superior Court, McKeever, J., on January 27, 1982, which charged the defendant with two counts of attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134(a)(2). Accompanying the application for that warrant submitted by the state's attorney was the affidavit of Connecticut state trooper Albert J. Marchetti. On March 17, 1982, the defendant was presented to the Superior Court at which time he pleaded not guilty to the offenses charged in the information dated February 11, 1982. ¹

On May 19, 1982, the defendant filed a motion to dismiss the information against him essentially on two grounds: first, that the affidavit relied upon for the issuance of his arrest warrant was "insufficient" and that "[t]here was no probable cause" for his arrest; and second, that there was "an insufficiency of evidence or cause to justify the bringing or continuance of such information for placing [him] on trial [for the crime charged]." Under both of these grounds, the defendant claimed in his motion that the trial court "lack[ed] jurisdiction both over the Defendant and over the subject matter."

After hearing argument from both the defendant and the state, the trial court, Melville, J., rejected the defendant's claim on the first ground but dismissed the information on the second ground. ² The dismissal was with prejudice. The state then applied for and received permission from the trial court to bring this appeal. The state maintains that the trial court erred in dismissing the information in that there was sufficient "probable cause" to continue the prosecution of this case. The defendant, however, maintains that the trial court properly dismissed the information on the second ground of its motion, i.e., insufficient evidence to justify continuing the prosecution, but that the trial court erred in rejecting his first ground for dismissal i.e., insufficiency of the affidavit upon which his arrest warrant was based. We conclude that the trial court erred in dismissing the information against the defendant. ³

In support of its claim of error, the state points to the facts alleged in the affidavit of Marchetti which accompanied its successful application for the bench warrant for the defendant's arrest. During oral argument before the trial court, as well as before this court, the state conceded that it could only prove what was reflected in that affidavit. With specific regard to the criminal act with which the defendant was charged, the affidavit states the following: "On March 16, 1981 at 9:36 P.M. an attempted armed robbery was reported to the Westport State Police by Todd Haines, manager of the westbound Fairfield Service Station on Route 15. He reported the attempted armed robbery to have taken place at the service station only a few minutes earlier.

"On March 16, 1981 at 9:50 P.M. this officer arrived at the service station and spoke with the two employees who were present at the time of the attempted robbery, Todd Haines and Mark Butkovsky. They both stated they were in the main office of the service station when they heard a knock on the door. When Butkovsky opened the door ... two (2) male subjects were standing in the doorway pointing hand guns at him. They were both wearing black ski masks over their faces and the one standing in front was wearing dark colored gloves and a dark blue ski jacket. The one standing behind was wearing a cream colored ski jacket. Both victims described the man in the front as about 6 feet 2 inches or taller with a medium build wearing blue jeans. The man standing to the rear was a couple of inches shorter with the same build. When Butkovsky raised his hand up and towards the two armed men the victims heard a gun shot go off and then Butkovsky ran into the back room. Haines was still sitting in a chair when the armed man in the front pointed his gun directly at him. Haines stated he fell to the floor to protect himself when a second shot was heard by both victims. Haines stated when he looked up he saw the man in the front put his hands up in the air shaking his left hand and twisting his body as if he were in pain. They stated these two (2) armed men fled the scene by running around the side to the back of the building."

The defendant maintains that since the defendant was charged with attempted robbery in the first degree, the state had the burden of proving beyond a reasonable doubt, inter alia, that the defendant "intended to deprive another of property during the course of conduct or non-conduct presented in the subject fact pattern." This intent, according to the defendant cannot be proven from the affidavit and, moreover, because other possible alternative inferences concerning the intent of the defendant could be drawn from facts stated in the affidavit which the state could not rule out, "any conclusions of [the requisite] intent by a jury would be a matter of conjecture or surmise." Referring to the trial court's oral ruling, ⁴ the defendant claims that the state has a duty to rule out reasonable suppositions or hypotheses of innocence and that in this case the state must rule out other criminal intents of the alleged offenders such as "assault, threatening, and other offenses ... as well as innocent intents, a converse way of requiring proof beyond a reasonable doubt of the offenses charged and pleaded in this particular information (emphasis supplied)." Defense counsel conceded before us that he has raised no claim in this motion to dismiss relating to an insufficiency of the evidence on the identity of the defendant. ⁵

In oral argument before us the state maintained that the exclusive issue was whether the state, on a trial, could produce sufficient evidence to justify a verdict of guilty of attempted robbery in the first degree even though the affidavit contains no statement of a specific demand by either of the alleged robbers for money before the incident in question aborted. The defendant conceded in oral argument before us that the test to be applied to this claim of the state was whether, if the trier of fact rendered a verdict of guilty, that verdict could be sustained on an appeal which challenged the sufficiency of the evidence. These positions are essentially the same.

Initially, we reject the defendant's claim that the facts which the state offered to prove, i.e., those facts contained in Marchetti's affidavit, could not provide a proper basis for a finding of guilty of attempted robbery in the first degree because the state could not prove beyond a reasonable doubt that the defendant intended to deprive another of property. This claim reduces itself to the basic issue of whether a specific demand for property is a prerequisite to finding a defendant guilty of attempted robbery.

It is axiomatic that the burden in criminal cases is on the prosecution to prove each essential element of the alleged crime beyond a reasonable doubt and that there is no burden on the defendant to prove his innocence. State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984); State v. Anonymous, 179 Conn. 516, 519, 427 A.2d 403 (1980); State v. Jackson, 176 Conn. 257, 258, 407 A.2d 948 (1978); see Mullaney v. Wilbur, 421 U.S. 684, 699-701, 95 S.Ct. 1881, 1889-1891, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). In finding guilt beyond a reasonable doubt, a jury may not resort to speculation and conjecture but it is clearly within the province of the jury to draw reasonable, logical inferences from the facts proven. State v. Haddad, 189 Conn. 383, 388, 456 A.2d 316 (1983); State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980); State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980); State v. Jackson, supra.

The circumstance that Marchetti's affidavit does not disclose that either the defendant or his companion made a specific demand for property of the victims is not, as the defendant argues, fatal to the state's claim that a reasonable inference of intent to rob can be inferred from the circumstances set out in the affidavit to which its evidence at a trial would be limited. There is no question that "if an element making up a crime, as laid down by a statute, is wholly unsupported by the evidence, it is error to submit it to the jury as if the evidence justified the determination of the presence of that element." State v. Rogers, 177 Conn. 379, 382, 418 A.2d 50 (1979); State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 (1975). The intent to commit a larceny is an essential element of the crime charged in this case and a number of courts have held that the absence of a specific demand for property, in and of itself, does not prevent a finding by the trier of fact of the element of intent on a charge of attempted robbery. See, e.g., People v. Nichols, 255 Cal.App.2d 217, 220-21, 62 Cal.Rptr. 854 (1967); Burgess v. State, 162 Ga.App. 212, 290 S.E.2d 554 (1982); People v. Terrell, 110 Ill.App.3d 1086, 1090, 66 Ill.Dec. 816, 443 N.E.2d 742 (Ct.App.1982); People v. Murff, 29 Ill.2d 303, 305, 194 N.E.2d 226 (1963); State v. Dupree, 477 S.W.2d 129, 130-31 (Mo.1972); State v. Norris, 365 S.W.2d 501, 502-504 (Mo.1963); Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570 (1968); see 77 C.J.S. Robbery, § 72.

Generally, intent can be proved only by circumstantial evidence. State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979); State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973). " 'Intent may be, and usually is, inferred from conduct. State v....