State v. Sumner

Citation422 A.2d 299,178 Conn. 163
PartiesSTATE of Connecticut v. John SUMNER.
Decision Date26 June 1979
CourtSupreme Court of Connecticut

Joseph Shortall, Chief Public Defender, with whom, on the brief, was James D. Cosgrove, Hartford, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were Austin J. McGuigan, Chief State's Atty., Wallingford, and Richard Schatz, Asst. State's Atty., for appellee (state).

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

LONGO, Associate Justice.

In a two-count information, the defendant was charged with committing the crimes of larceny in the first degree in violation of § 53a-122(a)(2) of the General Statutes, and conspiracy to commit larceny in the first degree in violation of §§ 53a-48 and 53a-122(a)(2) of the General Statutes. On a trial to a jury he was convicted of both offenses. The defendant has appealed from the judgment rendered, and has briefed the following claims of error: (1) that the provisions of General Statutes § 53a-122(a)(2) do not set forth a specific crime, and that the defendant could, thus, not be convicted for a violation of that section; (2) that the court erred in charging the jury on the crimes of larceny and conspiracy to commit larceny; and (3) that the state did not prove the guilt of the defendant as charged in the information.

From a review of the evidence the jury could have reasonably found the following facts: In June, 1975, Dereck R. Thomas, of Bangor, Maine, heard from a former acquaintance, James Dewitt, of Hartford, that Thomas could make a profitable purchase of plywood in Connecticut. Thomas obtained a certified check for $3500, and went to Meriden accompanied by a friend, James Smith. The next morning Dewitt did not materialize, but the defendant Sumner arrived in Meriden and told Thomas that he could not complete the original deal for the purchase of plywood, and that the plywood would have to be purchased at another building outlet, Wicke's Lumber in Southington. The defendant then dialed a number, and handed the phone to Thomas who heard a man state: "Wicke's Lumber, manager speaking." The defendant then directed Thomas to several banks where he thought Thomas might cash his check. Later that day, the defendant told Thomas that Wicke's was closed, and drove Thomas and his companion to a motel. The next morning, the defendant picked Thomas up, drove him to his truck, told Thomas to go to Wicke's and that the manager of Wicke's would meet Thomas there, and that the manager would be wearing "a green suit."

When Thomas arrived at Wicke's, a man dressed in a green suit came out of the front of the store. Thomas gave the man $2650 and, at the "manager's" suggestion, proceeded in his truck to pick up the plywood. At this point, however, Thomas stopped and departed from his truck in order to obtain a receipt for the $2650. The man in green had disappeared, and Thomas did not obtain any plywood or the return of his money. From these facts, it is apparent, as the jury evidently found, that Thomas was the obvious victim of a well executed "flimflam" or "ripoff" operation.

Later that day, Thomas and his friend, Smith, both identified a police photograph of Sumner. Thomas returned to Connecticut three or four months later to testify against Sumner at a court hearing. He met the defendant in the hallway of the courthouse where the defendant offered Thomas $1000 if he would drop the case. Thomas first accepted the offer, but when the defendant said he needed time to make payment, Thomas refused.

On the basis of these facts, the jury returned a verdict and judgment was imposed convicting the defendant of first degree larceny and first degree conspiracy to commit larceny.

We first consider the defendant's claim relating to the nonspecificity of the information lodged against him. The defendant, arguing that § 53a-122(a)(2) does not define a distinct criminal offense, asserts that the state's allegation of a violation of this section did not sufficiently inform him of the specific charges against him. More specifically, the defendant claims that the failure of the information to charge a violation of § 53a-119, which enumerates various statutory larceny offenses, rendered the information, and the defendant's convictions, fatally defective. We cannot agree.

We cannot overlook the defendant's claim that an accused in a criminal proceeding has the right to be informed of the nature and cause of the accusation against him, and that the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial; these principles of constitutional law are inveterate and sacrosanct. United States Constitution, Amendment VI; Conn. Constitution, Art. I, § 8; 2 Wharton, Criminal Procedure (12th Ed.) § 258. Under our practice at the time of the defendant's trial in May, 1976, however, it was sufficient for the state to set out in the information the statutory name of the crime with which the defendant was charged, and to leave to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense. Practice Book, 1963, §§ 495, 498; State v Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977); State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); State v. Brown, 163 Conn. 52, 61, 301 A.2d 547 (1972); State v. Davis, 141 Conn. 319, 106 A.2d 159 (1954). The information in this case charged that the defendant "did steal" property of a value in excess of $2000, and the defendant requested no bill of particulars to obtain with more specificity an understanding of the nature of the information's allegations. Our review of the transcript, moreover, discloses that the defendant never complained to the trial court that he was unable to prepare a defense due to a lack of specificity in the information, or that he was unable to defend vigorously against the state's case, which centered upon the defendant's obtaining of money by means of a false promise. General Statutes § 53a-119(3).

While better practice may counsel that the state include a specific reference to the larceny offense charged as enumerated in § 53a-119, in the context of this case the state will not be penalized for a claimed uncertainty in the information. State v. Mola, 128 Conn. 407, 410, 23 A.2d 126 (1941); see State v. Coleman, 167 Conn. 260, 274, 355 A.2d 11 (1974) (Bogdanski, J., concurring). It is inconceivable to us how the defendant could possibly have been mislead as to the offense with which he was charged. The transcript manifestly reveals that Sumner's defense was not hampered by the information lodged against him; to hold otherwise would amount to trial by ambuscade. See State v. DiBella, 157 Conn. 330, 339, 254 A.2d 477 (1968); State v. Parker, 114 Conn. 354, 366, 158 A. 797 (1932). The defendant can gain nothing from his present claim without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. State v. Rafanello, 151 Conn. 453, 457, 199 A.2d 13 (1964); State v. Mola, supra, 410; 5 Wharton, Criminal Law and Procedure § 2056. As the state's pleadings here informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953); State v. Coleman, supra, 275 (Bogdanski, J., concurring); State v. Beaulieu, 164 Conn. 620, 625, 325 A.2d 263 (1973); see State v. Ramos, 176 Conn. 275, 277-78, 407 A.2d 952 (1978); State v. Costello, 62 Conn. 128, 130, 25 A. 477 (1892); cf. Wright, Federal Practice and Procedure § 125. There was no infirmity in the information.

The defendant next claims that the court erred in charging the jury on the crimes of larceny and conspiracy to commit larceny. The defendant contends that the court should not have instructed the jury in accordance with the definition of larceny by false promise, as provided in General Statutes § 53a-119(3), 1 because the state's information, to which we have previously adverted, charged only a violation of § 53a-122(a)(2), which does not contain an elemental definition of larceny, but merely provides: "A person is guilty of larceny in the first degree when: ... the value of the property or service exceeds two thousand dollars." The information contained the somewhat conclusory language that the defendant "did steal" the property of another. Defense counsel's exception at trial, moreover, indicated that he challenged the court's combination of a charge on the substantive larceny offense with a charge upon the conspiracy to commit larceny offense. We take the defendant's claim to be that the court should have restricted its charge to a mention of § 53a-122(a)(2), because that was the only statute mentioned in the information, and because there was no evidence that the defendant made any false promise. The defendant's present argument appears to spring from a misconception of the duty of the court to charge on the elements of the offense in light of adduced evidence; we reject that argument.

We note at the outset that the defendant made no specific exception to the court's reference to the statutory definition of larceny by false promise, and did not claim, in the trial court, that the court was restricted in its charge to a reference to § 53a-122(a)(2). In such circumstances, we are not required to address the claim for the first time on appeal. State v. Evans, 165 Conn. 61,...

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