State v. Sharpe

• Citation: 195 Conn. 651,491 A.2d 345
• Court: Supreme Court of Connecticut
• Decision Date: 16 April 1985
• Parties: STATE of Connecticut v. Thomas R. SHARPE.

Page 345

491 A.2d 345

195 Conn. 651

STATE of Connecticut v. Thomas R. SHARPE.

Supreme Court of Connecticut.

Argued Jan. 16, 1985.

Decided April 16, 1985.

Richard T. Meehan, Jr., Bridgeport, with whom, on brief, were Richard T. Meehan, Sr., Bridgeport, and Kathleen M. Van Der Aue, Southport, for appellant (defendant).

James G. Clark, Deputy Asst. State's Atty., with whom, on brief, were Eugene J. Callahan, State's Atty., David Cohen, Asst. State's Atty., and Carl Schuman, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and PARSKEY, SHEA, DANNEHY and SCHALLER, JJ.

DANNEHY, Justice.

The defendant was charged with attempted murder in violation of General Statutes § 53a-54a(a), with assault in the first degree in violation of General Statutes § 53a-59(a)(1), and with criminal use of a firearm in violation of Public Acts 1981, No. 81-342, § 1(a) in a single information which contained separate counts for each offense. After the close of the state's case in chief the defendant moved for a judgment of acquittal regarding the charge of criminal use of a firearm. The trial court granted the motion and the trial continued. At the close of all the evidence a motion for judgment of acquittal on the remaining charges was denied and the jury found the defendant guilty of attempted murder and guilty of the lesser included offense of assault in the second degree. General Statutes § 53a-60(a)(2). Concurrent sentences of eighteen years for attempted murder and of five years for assault in the second degree were imposed. In his appeal the defendant raises numerous issues which we have renumbered and which we discuss as they relate to the claims (1) that the information charging him with attempted murder and with assault in the first degree was multiplicitous, (2) that the trial court abused its discretion in its rulings on the scope of the cross-examination of the defendant and of a defense witness, (3) that the trial court erred in various of its evidentiary rulings, and (4) that the trial court erred in denying the defendant's posttrial motion for judgment of acquittal and in its charge to the jury. We find none of the defendant's claims persuasive.

There is evidence that on December 30, 1981, Joseph Biancheri was shot and physically injured. Biancheri testified that at about 5:30 p.m. on that day he got into his jeep that was parked in the driveway of his house at 33 Summit Street in Norwalk. He started the motor, and, as he backed into the street, he noticed a man in a lighted area carrying "a cutoff rifle or a long barrel" gun. The man advanced, and as he continued to advance he was clearly visible in the glare of the headlamps on the jeep. When he came to the front of the vehicle, he fired one shot. Biancheri was hit. He then approached the driver's side of the car, and, looking directly at Biancheri, started firing again. Five, maybe six, more shots were fired. Biancheri sustained wounds of the head, left hand and left wrist. The gunman fled on foot. Biancheri's testimony demonstrated that he had ample opportunity to observe his assailant before and during the shooting. At the trial Biancheri positively identified the defendant as the man who shot him.

I

Prior to trial the defendant filed a motion to dismiss either the charge of attempted murder or the charge of assault in the first degree on the grounds that the charges arose out of the same transaction and were, therefore, multiplicitous. He argues that the denial of his motion violated his right to be free from double jeopardy under the fifth and fourteenth amendments to the United States constitution. State v. McCall, 187 Conn. 73, 89, 444 A.2d 896 (1982). This argument has two prongs, each a necessary condition to its success: (1) the charges must arise out of the same transaction, and (2) the charged crimes must be the same offense. Double jeopardy prohibits, inter alia, not only multiple trials, but also multiple punishments for the same offense in a single trial. See State v. Frazier, 194 Conn. 233, 238, 478 A.2d 1013 (1984).

We recently repeated the test for determining whether there are two offenses or only one in State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985). There we said that the classic test to be applied to determine whether there are two offenses or only one is " 'whether each provision requires proof of a fact which the other does not.' Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180 76 L.Ed. 306 (1932)." Id.; see also Brown v. Ohio, 432 U.S. 161, 166-67, 97 S.Ct. 2221, 2225-26, 53 L.Ed.2d 187 (1977). We apply this test with reference to the charging documents. State v. McCall, supra, 187 Conn. 90, 444 A.2d 896.

The state in this case concedes that each offense, separated into two counts, arose from the same transaction. Where the same act constitutes a violation of two distinct statutory provisions, the analysis requires a determination of whether, with reference to the charging documents; State v. McCall, supra, 90, 444 A.2d 896; "each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If the elements of one offense include the elements of a lesser offense, or if one offense is merely nominally distinct from the other, then double jeopardy attaches. State v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979).

The defendant was charged in the information with attempted murder ¹ and with assault in the first degree. ² A conviction for attempted murder requires proof of intentional conduct constituting a substantial step toward intentionally causing the death of another person. State v. Jacobowitz, 182 Conn. 585, 592, 438 A.2d 792 (1981). No showing of actual injury is required. Conversely, a conviction for assault in the first degree requires proof that the defendant actually caused serious physical injury to another person. No showing of intent to cause death is necessary. Therefore, each offense requires proof of a fact which the other does not. Consequently, the statutory violations charged, attempted murder and assault in the first degree, are not the same offense for double jeopardy purposes. ³ This conclusion disposes of the defendant's argument that he was subjected to double jeopardy by being punished twice upon the same evidence and essentially the same offense. He was not twice punished for the same crime.

II

It is claimed that the trial court abused its discretion when it overruled the defendant's objections to the scope of the cross-examinations of the defendant himself and of a defense witness.

The defendant testified in his own behalf. He first related an incident that happened outside the courtroom during the trial. Then he said that he was right handed. The final inquiry of the defendant on direct examination was, "Did you shoot Joseph Biancheri?" He replied, "No, I did not."

Over objection, the state was permitted to cross-examine the defendant about his relationships to Jay Borawski, with whom he had been seen on the morning of the shooting, and to Raymond Dalesio, whose involvement in arranging for the shooting had been suggested by defense counsel during his prior cross-examinations of two state witnesses. ⁴ It is the defendant's contention that these questions and others were beyond the scope of the direct examination. ⁵

It is well settled that our rule restricts cross-examination to matters covered in the direct examination, except as they involve credibility alone. State v. Zdanis, 173 Conn. 189, 195, 377 A.2d 275 (1977); State v. Hall, 165 Conn. 599, 607, 345 A.2d 17 (1973). A question is within the scope of the direct examination if it is designed to "rebut, impeach, modify, or explain any of the defendant's direct testimony...." State v. Zdanis, supra, 173 Conn. 196, 377 A.2d 275. Restrictions on the scope of cross-examination are within the sound discretion of the trial court. State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983).

The crucial issue before the jury was whether the defendant shot Biancheri. The record here discloses that on direct examination, the defendant, as a witness in his own behalf, said that he did not shoot Biancheri. We find that the defendant opened the door on direct examination. Once the door was opened, the defendant could not be allowed to claim error on the part of the court in permitting cross-examination with regard to the veracity of his previous testimony. We may review the trial court's exercise of discretion in controlling the scope of the cross-examination only to determine whether that discretion has been abused. The record shows no such abuse of discretion.

The defendant also claims that the trial court erred in allowing the state to question the defendant's alibi witness, Louis Raab, about cheating on his taxes. At trial, the defendant objected to this line of inquiry as "irrelevant and immaterial." On appeal he claims for the first time that this questioning was an "oblique attempt" to impeach the defendant as well as Raab. Because the defendant failed properly to raise and to preserve this latter claim, our review will be limited to his objection as to relevancy. State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983).

The defendant offered an alibi that he was at his mother's home on December 30, 1981, at the time of the shooting. Raab testified that he had a dinner date with the defendant's mother that evening, that he arrived at her home shortly before 7 p.m., and that the defendant was there when he arrived. He also testified that, in his opinion, the defendant was a truthful person.

To attack the credibility of a witness, inquiry may be made, in the discretion of the trial court, as to particular acts of misconduct tending to show a lack of veracity even though such evidence may be irrelevant to the issues in the case. State v. Dolphin, 195 Conn. 444, 459, 488 A.2d 812 (1985). " 'Whether particular acts...