State v. Scognamiglio

• Decision Date: 06 January 1987
• Citation: 519 A.2d 607,202 Conn. 18
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ciro SCOGNAMIGLIO.

Page 607

519 A.2d 607

202 Conn. 18

STATE of Connecticut v. Ciro SCOGNAMIGLIO.

Supreme Court of Connecticut.

Argued Oct. 10, 1986.

Decided Jan. 6, 1987.

Randolph E. Richardson, II, and Steven M. Basche, Certified Legal Interns, with whom were Todd D. Fernow and, on the brief, Michael R. Sheldon, for appellant (defendant).

Mitchell M. Berger, Sp. Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Walter H. Scanlon, Chief Asst. State's Atty., for appellee (State).

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

CALLAHAN, Associate Justice.

The defendant, Ciro Scognamiglio, was charged in two separate indictments with murder in violation of General Statutes § 53a-54a, and with felony murder in violation of General Statutes § 53a-54c. ¹ The indictment for felony murder charged that the defendant, together with Michael Oczkowski, "did commit robbery, and in the course of and in furtherance of such robbery said participants or either one of them did cause the death of Jose Rodriguez, not a participant in said robbery...." After a jury trial, the defendant was acquitted of murder, but convicted of felony murder and sentenced to a term of imprisonment.

The jury could reasonably have found the following relevant facts. On the evening of January 4, 1982, at about 10 p.m., the defendant and Oczkowski drove to South Main Street in Waterbury to obtain drugs. Oczkowski was operating an automobile owned by his father-in-law, while the defendant occupied the front passenger seat. When Oczkowski parked the car on South Main Street near its intersection with West Liberty Street, the defendant was approached by the victim, Jose Rodriguez, and two other hispanic males. A conversation ensued between the defendant and Rodriguez during which Rodriguez handed the defendant a small glassine bag containing heroin from a bundle of similar bags that he was holding.

The defendant tasted the heroin, found it satisfactory, kept the bag, and asked Rodriguez for the additional bags. Rodriguez refused to comply with the defendant's request until he received payment. The defendant thereupon produced a handgun, pointed it out the passenger side window of the car, and told Rodriguez that he was going to "take it all." At the sight of the gun, Rodriguez turned and ran toward West Liberty Street. The defendant then leaned from the car window, aimed and fired one shot, striking Rodriguez in the back and killing him. Immediately, the automobile "peeled out," rapidly leaving the scene. Later that same evening, the defendant and Oczkowski were apprehended at the home of Oczkowski's in-laws in Waterbury.

Oczkowski ² testified at the defendant's trial, as did other witnesses, that the defendant had shot the victim under circumstances similar to those outlined above. The defendant, on the other hand, testified that Oczkowski, after exchanging heated words with Rodriguez, had leaned from the driver's side of the automobile across the front seat, shooting Rodriguez from the passenger window of the car. The defendant testified, in effect, that no robbery had occurred and that he had merely been a spectator to an altercation between Oczkowski and the victim that had resulted in the victim's death.

I

The defendant first claims that the trial court unconstitutionally expanded the offense with which he was charged, when it instructed the jury that it could convict him of felony murder if it found that he or another participant in the alleged robbery caused the death of the victim "in the course of and in furtherance of [the robbery] or of flight therefrom." (Emphasis added.) The governing statute, General Statutes § 53a-54c, creates criminal liability under both theories; the indictment by which the defendant was charged, however, contained only an allegation that the accused had violated the statute by causing the death of the victim "in the course of and in furtherance of" the robbery. There was no reference in the indictment to flight.

The defendant claims that the trial court's instruction allowed the jury to convict him on a theory of liability for which he was not indicted. He argues, therefore, that he had no notice of the charges against him in violation of his rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant failed to raise this claim at trial or take an exception to the trial court's charge. Moreover, he filed a written request that the trial court charge the jury on flight. ³ He contends, nevertheless, that this claim is reviewable on appeal because he has been denied a fundamental constitutional right and a fair trial. State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We find no constitutional violation.

"The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him 'with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense....' State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979); State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983)." State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Couture, 194 Conn. 530, 560, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S.Ct. 967, 83 L.Ed.2d 971 (1985). The killing of a nonparticipant "in the course of and in furtherance of [a robbery] or of flight therefrom" are simply two methods of committing the same crime. See State v. Secore, 194 Conn. 692, 697-98, 485 A.2d 1280 (1984); State v. Couture, supra; State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); State v. Cofone, 164 Conn. 162, 166, 319 A.2d 381 (1972); State v. Edwards, 163 Conn. 527, 532, 316 A.2d 387 (1972). The defendant's conviction under either theory would consequently bar a subsequent prosecution for the same offense. State v. Franko, supra. "Therefore, for the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court's charge caused him unfair surprise or prejudiced the preparation of his defense. State v. Roque, supra [190 Conn. at] 156 ." State v. Franko, supra. We conclude that it did neither.

There is nothing in the record to indicate that the defendant would have altered his defense in any way if a theory of liability based on the killing of the victim "in the course of and in furtherance of flight" (emphasis added) from the robbery had been included in the allegations of the indictment. His defense was predicated on his assertion that he had not been a participant in the robbery. He testified that he had been at the scene only because he had accompanied Oczkowski to buy drugs, and that he was merely a passenger in the automobile, an innocent bystander, when Oczkowski shot the victim and fled from the scene. We are, therefore, unable to discern any way in which the defense of the accused was prejudiced by the trial court's instruction concerning the flight theory of liability. Under either theory on which the jury was instructed, if the defendant did not participate in the robbery, or facilitate the getaway, as he had testified, he would have been acquitted had he been believed by the jury. Further, the affirmative action of the defendant in submitting a written request that the trial court instruct the jury on the flight theory of liability negates any claim that he was unfairly surprised by the inclusion of such an instruction in the court's charge. See State v. Franko, supra, 199 Conn. at 490-91, 508 A.2d 22.

For similar reasons, we find no violation of the defendant's fourteenth amendment right to due process. "Due process requires that a criminal defendant be given notice of the specific charge against him and an opportunity to defend against that charge. Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514 , 92 L.Ed. 644 (1948)." State v. Franko, supra, 199 Conn. at 491-92, 508 A.2d 22. We have already determined that the defendant's ability to present a defense was not prejudiced by the trial court's expansion of the indictment, and it is impossible to find lack of notice when the defendant himself requested an instruction concerning flight, the very portion of the statute which he claims on appeal should not have been charged. The record simply does not support the defendant's claim that his due process rights were violated.

The defendant concedes, indeed argues forcefully in his brief, which was filed before our decision in Franko, that there was sufficient evidence presented at trial so that it was reasonably possible that the jury could have convicted him of felony murder under the flight theory of liability as well as the theory charged in the indictment. We agree. Therefore, as we held in State v. Franko, supra, at 493, 508 A.2d 22, "the error of which the defendant complains is tantamount to a variance between the pleadings and the proof. In the absence of an exception, when sufficient evidence of the uncharged issue has been presented to justify its submission to the jury, such a variance does not rise to the level of a constitutional violation unless the record establishes a lack of proper notice or prejudice to the defendant. Since the defendant suffered neither lack of notice nor prejudice in preparing his defense, he cannot prevail on this claim of error." See State v. Dahlgren, 200 Conn. 586, 595, 512 A.2d 906 (1986).

The defendant contends that, even if Franko is fatal to his claim that he was unconstitutionally convicted on an uncharged theory of liability, the trial court was without jurisdiction to try him under the flight theory of liability. We disagree.

At the time the defendant was prosecuted, it was necessary that crimes punishable by death or life...