State v. Steve

• Decision Date: 21 June 1988
• Docket Number: No. 13263,13263
• Citation: 544 A.2d 1179,208 Conn. 38
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Carl STEVE.

Page 1179

544 A.2d 1179

208 Conn. 38

STATE of Connecticut v. Carl STEVE.

No. 13263.

Supreme Court of Connecticut.

Argued April 12, 1988.

Decided June 21, 1988.

Michael A. Fasano, Sp. Asst. State's Atty., with whom were Peter D. Markle, Former Asst. State's Atty., and, on the brief, John Connelly, State's Atty., Bradford J. Ward, Asst. State's Atty., and Joseph A. Geremia, Jr., Waterbury, for appellant (State).

Denise Dishongh, Sp. Public Defender, with whom was Louis Avitabile, Special Public Defender, for appellee (defendant).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.

SHEA, Associate Justice.

A jury found the defendant guilty of the crimes of robbery in the first degree, a violation of General Statutes § 53a-134(a)(2), ¹ and assault in the first degree, a violation of General Statutes § 53a-59(a)(3). ² On the defendant's appeal from the judgment of conviction, the Appellate Court determined that the trial court had erred in instructing the jury on the theory of aiding and abetting pursuant to General Statutes § 53a-8 ³ as to both the robbery and assault charges in the substitute information when the state had alleged in its bill of particulars that the defendant was being prosecuted only as a principal on these charges. State v. Steve, 11 Conn.App. 699, 529 A.2d 229 (1987). The state, after this court had granted certification, appealed from the Appellate Court's judgment reversing the judgment of the trial court. We conclude, as did the Appellate Court, that the trial court erred in instructing the jury on accessorial liability when the state's bill of particulars, as amplified orally after it had been filed, affirmatively indicated that the defendant was the principal in regard to both charges, and that this error was prejudicial. Accordingly, we affirm the judgment of the Appellate Court.

Although the facts that the jury could reasonably have found are set forth in State v. Steve, supra, we summarize those pertinent to the issues in this appeal. The state in a substitute information charged the defendant with the crimes of robbery in the first degree, a violation of § 53a-134(a)(2), and of assault in the first degree, a violation of § 53a-59(a)(3). Prior to the trial, the defendant moved for a bill of particulars, requesting that the information state: (1) the specific nature of the offense or offenses with which the defendant was charged; (2) the time, place and manner in which the offense was committed; (3) the specific acts performed by the defendant which constitute all necessary elements of the crime charged; (4) the general circumstances surrounding the alleged crime; (5) the date and time of the alleged violation as well as the section of the General Statutes violated; and (6) the name or names and addresses of all persons the state alleges were involved in such violation.

The bill of particulars filed by the state in response to this motion alleged the following: "The defendant, Carl Steve, is charged with the crime of Robbery in the First Degree in violation of Section 53a-134(a)(2) of the Connecticut General Statutes, in that on or about April 13, 1985, at or near 185 Walnut Street in the city of Waterbury at approximately 4:00 p.m., the defendant, in the course of committing a larceny used physical force upon another person, to wit: Scott Doyle, for the purpose of compelling the owner of such property, Scott Doyle, to deliver up the property and to prevent or overcome resistance to the taking of the property, and the defendant was armed with a deadly weapon. The defendant, Carl Steve, is charged with the crime of Assault in the First Degree in violation of Section 53a-59(a)(3) of the Connecticut General Statutes, in that on or about April 13, 1985, at or near 185 Walnut Street in the city of Waterbury at approximately 4:00 p.m., the defendant under circumstances evincing an extreme indifference to human life recklessly engaged in conduct which created a risk of death to another person, to wit: Scott Doyle, and thereby caused serious physical injury to Scott Doyle."

After the bill of particulars had been filed, the defendant orally requested that it be clarified with respect to the allegation of reckless conduct relied upon for the charge of assault in the first degree. The state's attorney responded that, if he were ordered to amend the bill of particulars, he would do so by saying that the defendant had "recklessly engaged in conduct, to wit: Possessing a loaded weapon and holding it to the stomach or the person of the victim, Scott Doyle ... thereby causing physical injury by shooting Scott Doyle." In denying the defendant's motion, the court remarked, "[Y]ou know that the state's allegation is that the conduct which was engaged in ... creating a risk of death was the use of a handgun ... [b]ecause, that is pretty much alleged in the first bill of particulars. Whether the state says that or not, that is what is attempted to be proved here, and that is what you have to defend against.... So, it does not have to be amended.... The record makes it clear what the basis of the charge and bill of particulars is."

After the state had concluded the presentation of evidence in its case-in-chief, the defendant took the stand in his own defense and testified that a second person, Jeff Manson, had actually shot the victim and taken his property and that he, the defendant, had not participated. State v. Steve, supra, at 702, 529 A.2d 229. This testimony was corroborated in part by a second witness, who testified that she had seen the defendant and Manson together moments after the incident. She testified that Manson was carrying a handgun and bragging about robbing and shooting a "white dude." She also testified that while Manson was talking, the defendant sat silently and made no comment. A sister of the defendant also testified that she had seen Manson in possession of the gun immediately before and after the shooting. She further testified that she had seen the defendant accompany Manson during this time.

Before closing arguments the state's attorney advised the defendant that he would request a charge on accessorial liability for the offenses. The court initially charged the jury on the elements necessary to prove the defendant guilty of robbery and assault as a principal but later, in responding to jury requests for further instructions, charged that he would also be guilty of both offenses if he had intentionally aided another for the purpose of committing those crimes. See General Statutes § 53a-8. The defendant excepted to the charge on accessorial liability as an expansion of the bill of particulars. The jury returned a verdict finding the defendant guilty of both the assault and robbery charges. Thereafter, the defendant filed motions for a judgment of acquittal, for a new trial, and in arrest of judgment. In the motion for judgment of acquittal, the defendant claimed that the evidence presented did not permit a finding of guilt beyond a reasonable doubt of the charges contained in the substitute information. The defendant's motions for a new trial and in arrest of judgment maintained that the court's charge had allowed the jury to consider facts and crimes outside the scope of the bill of particulars. Id., at 702-703, 529 A.2d 229. The court denied the defendant's motions. Id., at 703, 529 A.2d 229.

I

The only issue presented by this appeal is whether the Appellate Court correctly concluded that the trial court erred in instructing the jury on the theory of accessorial liability when the bill of particulars, as elucidated by the state, alleged that the defendant was the principal in regard to both the robbery and assault charges and that such error was harmful.

The state contends that the substitute information and bill of particulars, when read together, were sufficient to apprise the defendant of the possibility that he might be convicted as an accessory. It notes that "the fact that a defendant was not formally charged as an accessory [in an information or indictment] does not preclude his being so convicted." State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986). The state maintains that a defendant who is charged as a principal in a crime is necessarily on notice that he may be convicted as an accessory.

The Appellate Court "acknowledge[d] that a defendant may be convicted on a theory of accessory liability even where he has not been formally charged by information with such." State v. Steve, supra, 11 Conn.App. at 706, 529 A.2d 229. It concluded, however, that the bill of particulars under the circumstances of this case limited the state to proving that the defendant committed robbery and assault in substantially the manner described, which referred only to his participation as a principal. Id., at 704-705, 529 A.2d 229. It determined that "the court's charge to the jury was not in substantial conformity with the facts alleged in the state's bill of particulars," and that this variance prejudiced the defendant in the presentation of his defense. Id., at 705, 529 A.2d 229.

The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise. State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). A bill of particulars limits the state "to proving that the defendant has committed the offense in substantially the manner described." ⁴ iState v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976). In State v. Killenger, 193 Conn. 48, 52-55, 475 A.2d 276 (1984), we held that there was no material variation where the bill of particulars alleged that the accused employed a hammer in committing robbery and assault, but the evidence indicated that a flashlight was used as a weapon. We concluded that the instrument used to bludgeon the victim was of the same generic character as that specified in the bill of particulars,...