State v. Vasquez
| Citation | 176 Conn. 239,405 A.2d 662 |
| Court | Supreme Court of Connecticut |
| Decision Date | 14 November 1978 |
| Parties | STATE of Connecticut v. Enrique VASQUEZ. |
George N. Thim, Asst. Public Defender, with whom, on brief, was Herbert J. Bundock, Public Defender, for appellant (defendant).
Eugene J. Callahan, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).
Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.
The defendant, Enrique Vasquez, has appealed from the judgment rendered on a jury verdict of guilty of robbery in the first degree in violation of § 53a-134(a)(4) of the General Statutes, 1 as charged in a one-count information. He claims that the trial court committed reversible error by failing to instruct the jury, as requested, that the crime of larceny in the fourth degree was a lesser included offense of robbery in the first degree.
The trial testimony of the complainant, Heriberto Montanez, disclosed the following: On March 24, 1977, Montanez was the manager of Patillas Market in Stamford. After closing the store at about 8 p. m., he heard a knock at the front door, and, recognizing the defendant, he unlocked the door and allowed him to enter. Although the defendant was known to Montanez only as "Kicka," the parties had known each other for two and a half to three years. Vasquez asked him for a pound of baloney, and, when Montanez walked to the back of the store to slice the requested cold cuts, Vasquez reached over the counter near the cash register and took a handgun which the store owner kept on the premises during business hours. Upon leaving the store Vasquez pointed the gun at Montanez and said, "If you try to do something, I shoot you."
Following the presentation of all the evidence, the defendant filed with the court written requests to charge, pursuant to § 2263 of the 1963 Practice Book. He requested, inter alia, that the court instruct the jury on the law pertaining to robbery in the second degree, robbery in the third degree, and larceny in the fourth degree on the ground that the above offenses are lesser included crimes of robbery in the first degree with which the defendant was charged in the information. After the rendition of the jury's verdict of guilty, the defendant filed a motion for a new trial claiming error in the court's failure to charge the jury on the lesser included offense of larceny in the fourth degree. Practice Book, 1963, § 2313. The court denied the motion for a new trial and rendered a judgment of guilty of robbery in the first degree.
State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547, 552; State v. Harden, 175 Conn. 315, 323, 398 A.2d 1169; State v. Troynack, 174 Conn. 89, 97, 384 A.2d 326.
In the present case, the information charged the defendant with robbery in the first degree in that he stole a .38 caliber revolver from Heriberto Montanez and threatened the use of what he represented by his words or conduct to be a firearm in the course of his flight from the scene. 2 See General Statutes § 53a-134(a)(4). The crime of larceny, on the other hand, is committed when a person, "with intent to deprive another of property or to appropriate the same to himself or a third person, . . . wrongfully takes, obtains or withholds such property from an owner." General Statutes § 53a-119. Although one of the factors which determines the grade of the larceny committed is the value of the property taken; see General Statutes §§ 53a-122(a)(2); 53a-124(a)(1); and 53a-125(a); when the value cannot be ascertained, its value is deemed to be an amount less than fifty dollars so as to constitute larceny in the fourth degree. General Statutes §§ 53a-121(a)(3); 53a-125. Therefore, since larceny in the fourth degree as described above does not require any element that is not needed to commit the greater offense of robbery in the first degree in the manner alleged in the information, the larceny is a lesser included offense of robbery. State v. Brown, supra, 163 Conn. 61, 301 A.2d 547.
Although the state does not seriously dispute the defendant's claim that the court erred in failing to charge the jury on the crime of larceny in the fourth degree as a lesser included offense of robbery, the state contends that, at most, the court's failure to give the requested charge was harmless error. We cannot agree.
In the present case, the information charged the defendant with the crime of robbery in the first degree. Although the court instructed the jury, as requested, regarding the crimes of robbery in the second and third degrees, an essential element of all of the above offenses is, of course, the use or threatened immediate use of physical force upon another. General Statutes § 53a-133. Larceny, on the other hand, simply involves the intentional taking of another's property, and the use of force is not required. General Statutes § 53a-119.
The state, in its brief, argues that since the jury found the defendant guilty of the greater offense as charged, there was no occasion to consider either the lesser degrees of robbery or, if they had been instructed the crime of larceny in the fourth degree. 3 As discussed above, however, since the lesser grades of robbery vary only with respect to the extent of force used, the court's failure to charge as requested effectively precluded the jury from finding that the defendant was guilty of an unlawful taking but that the use of force in the commission of the larceny had not been proven by the state beyond a reasonable doubt. 4
In State v. Thomas, 105 Conn. 757, 765, 136 A. 475, where the defendant was...
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State v. Whistnant
...which constitute that lesser offense. The defendant cites State v. Monte, 131 Conn. 134, 38 A.2d 434 (1944) and State v. Vasquez, 176 Conn. 239, 405 A.2d 662 (1978) to support his assertion that the court's failure to charge, sua sponte, on a lesser included offense violates a defendant's d......
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State v. Petion, SC 19938
...entitled to instructions all 211 A.3d 1011 the way down to the lowest offense supported by the evidence. See, e.g., State v. Vasquez , 176 Conn. 239, 241, 244, 405 A.2d 662 (1978) (when information charged defendant with robbery in first degree, he was entitled to jury charge on robbery in ......
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State v. Morin
...he was entitled to an instruction on the lesser included offenses involved would have had substantial merit. See State v. Vasquez, 176 Conn. 239, 241, 405 A.2d 662 (1978). 1 Inasmuch as we now require the defendant to satisfy a requirement of the Whistnant test that he was unaware of at the......
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State v. Anderson
...without having first committed the lesser. If it is possible, then the lesser violation is not an included crime." State v. Vasquez, 176 Conn. 239, 241, 405 A.2d 662 (1978); State v. Harden, 175 Conn. 315, 398 A.2d 1169 (1978); State v. Troynack, 174 Conn. 89, 97, 384 A.2d 326 (1977). The d......