State v. Wallace
| Decision Date | 17 June 1980 |
| Citation | 435 A.2d 20,181 Conn. 237 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Alexander A. WALLACE. |
Richard F. Singer, Asst. Public Defender, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and Joette K. Rubin, Asst. Public Defender, for appellant (defendant).
C. Robert Satti, State's Atty., for appellee (state).
Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.
The defendant was charged with the crime of robbery in the first degree in violation of § 53a-134(a)(2) 1 of the General Statutes. Just before the state completed its case in chief, the trial court permitted the state to amend the information by deleting subsection (a)(2) of § 53a-134 and substituting therein subsection (a)(4) of § 53a-134. 2 The jury thereafter found the defendant guilty of the crime charged in the substituted information. From the judgment rendered, the defendant has appealed.
On appeal, the defendant claims that the court erred in the following respects: (1) in granting the state's motion to amend; (2) in denying the defendant's motion for a continuance; (3) in certain rulings on evidence; (4) in denying the motion for judgment of acquittal; and (5) in denying the motion for a mistrial.
The record reveals that during the trial the state learned that the revolver which it had been prepared to offer in evidence was not the weapon used in the robbery. In the absence of the jury, the state moved to amend the information so as to charge the defendant with a violation of subsection (a)(4) of § 53a-134. The court granted the state's motion to amend and overruled the defendant's objections.
Section 624 of the 1978 Practice Book provides that after the commencement of a trial, for good cause shown, the court may permit the state to amend the information at any time before a verdict if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced thereby.
There was a showing of good cause for allowing the amendment. The amended information did not charge an additional or different offense. Both the original and the amended informations charged the defendant with the same crime of robbery in the first degree. Moreover, since the defendant's defense at the trial was one of alibi, no substantive rights of the defendant were prejudiced. The defendant did not dispute the commission of the crime charged, he simply claimed that he was not the one who committed it.
After the state was permitted to amend, the defendant moved for a continuance of ten days. The defendant, however, gave no reason for the continuance other than that he wanted "to file motions addressed to the pleadings." He made no claim that he needed time to prepare a defense or to procure additional witnesses or evidence. Nor has the defendant claimed that the denial of a continuance has prejudiced any of his substantive rights.
The granting or denial of a motion for a continuance rests within the sound discretion of the court; State v. Jeustiniano, 172 Conn. 275, 284-85, 374 A.2d 209 (1977); reviewable only for an abuse of that discretion. State v. Olds, 171 Conn. 395, 370 A.2d 969 (1976); State v. Bethea, 167 Conn. 80, 355 A.2d 6 (1974). Every reasonable presumption must be made in favor of the proper exercise of the trial court's discretion. State v. Manning, 162 Conn. 112, 121, 291 A.2d 750 (1971).
On the basis of the record before us, we conclude that the trial court did not abuse its discretion in denying the motion for a continuance.
There was evidence that one of the perpetrators of the crime charged wore what looked like knitted mittens, a white knit cap and a long-sleeved coat; the other wore a blue coat and gloves, one of which was dropped not far from the scene of the crime. Clem, a trained tracking dog, after being scented on the dropped glove, led his trainer to a white knit cap and a pair of socks which he circled before continuing on the track. At trial, Edward Burwitz, an FBI hair and fiber expert, testified that fibers found on the cap and socks were identical to those of the defendant's coat in terms of diameter, color, shade and material. The defendant claims that the court erred in admitting this evidence as having no probative value as to the defendant. We do not agree.
Clem's handler testified that the dog's continuing on the track after discovering the hat and socks meant that those items were of interest to the dog, but not of primary interest; that if two persons were together their scents would mix; and that the items could have been discarded by someone other than the person who wore the dropped glove. He further testified that these circumstances might indicate that two persons left the scene of the crime together, one of whom had worn the dropped glove, the other the hat and mittens. We conclude that the evidence was relevant and admissible.
The defendant also claims that the court erred in allowing Burwitz to testify as an expert in textile fiber analysis because the state did not lay a proper foundation regarding his qualifications.
Whether a witness is qualified to testify as an expert is a matter largely within the trial court's discretion. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964). While it is true that preliminary facts must be shown to lay a foundation for the witness' qualifications, there is no precise rule as to what those facts must be. Oborski v. New Haven Gas Co., supra. Expertise may come from practical experience or study alone. Bryan v. Branford, 50 Conn. 246, 248 (1882). In any event, if reasonable qualifications are established, objections go only to the weight to be given to the witness' opinion rather than to its admissibility. Oborski v. New Haven Gas Co., supra.
The record reveals that Burwitz had been employed by the federal bureau of investigation for nine years and that he had a bachelor of science degree from the University of New Mexico and a master of science degree from George Washington University. After completing a year of training on the subject of hair and fiber analysis, Burwitz conducted over 1000 examinations of hairs and textile fibers, and testified in many state and federal courts on the subject. That background, experience and training was sufficient to support the testimony which he gave during the trial.
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