State v. Ward

• Decision Date: 20 May 2003
• Docket Number: (AC 22781).
• Citation: 76 Conn. App. 779,821 A.2d 822
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ROBERT WARD.

76 Conn. App. 779

821 A.2d 822

STATE OF CONNECTICUT v. ROBERT WARD.

(AC 22781).

Appellate Court of Connecticut.

Argued January 7, 2003.

Officially released May 20, 2003.

Lavery, C. J., and Schaller and West, Js. Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Margaret E. Kelley, senior assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Robert Ward, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes (Rev. to 1999) § 53a-102 (a).¹ On appeal, the defendant claims that (1) the trial court improperly denied his motion to set aside the verdict and for a new trial,² and (2) that the evidence was insufficient to sustain the conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. In June, 2000, Willie Blake lived in a six-family apartment house at 103 Catherine Street in Bridgeport with his sister, Rosalee Blake,³ his brother, John Blake, Sr., his nephew, John Blake, Jr., and his nieces, Teshawn and Tangie.⁴

At approximately 9 p.m. on June 30, 2000, the defendant and Hakeem Mohammed rang Willie Blake's apartment doorbell. Willie Blake, who was home watching over his nephew and nieces, answered the door. The defendant and Mohammed questioned Willie Blake regarding the whereabouts of John Blake, Sr. Willie Blake informed them that his brother was not home. The defendant accused Willie Blake of lying and pushed his way into the apartment by wedging a wooden stick⁵ between the door and the door frame. Once inside, the defendant began swinging the stick, acting aggressively and using profanity. That behavior upset the children. The defendant remained in the house for approximately thirty minutes while searching for John Blake, Sr. As the defendant was leaving, the defendant remarked that he should have hit Willie Blake with the stick. The defendant also remarked that he and Mohammed would return and that if Willie Blake called the police, they would "shoot up the house."

At 10:30 p.m. on June 30, 2000, the defendant returned to the apartment door by himself. The defendant did not have the stick and remained on the front porch. Willie Blake telephoned the police. By the time the police arrived, however, the defendant already had driven away in a car with Mohammed.

At 12:45 a.m. on July 1, 2000, the defendant returned to Willie Blake's apartment. This time, Rosalee Blake, who had recently returned home from work, answered the door. The defendant was carrying a wooden stick and asked if John Blake, Sr., was home. Rosalee Blake informed him that her brother was not home. The defendant forced his way into the apartment and began using profane language while making threats regarding John Blake, Sr. Willie Blake and Rosalee Blake had to physically force the defendant out of their home. The police were called. Upon arrival, the police arrested the defendant, who was standing outside of the apartment.

In a long form information, the state charged the defendant with one count of burglary in the first degree in violation of General Statutes § 53a-101 (a)(1), three counts of risk of injury to a child in violation of General Statutes § 53-21 and one count of threatening in violation of General Statutes (Rev. to (1999) § 53a-62 (a)(1).

In September, 2001, the state filed a substitute information adding one count of conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 (1) and 53a-101 (a)(1). Finally, on October 23, 2001, the state amended the information to specify that the place burglarized was "the home of Willie or Rosalee Blake."

A jury trial began on December 10, 2001. After the state rested, the defendant sought to dismiss all of the charges and obtain a judgment of acquittal as to all six counts. The court granted the motion with respect to the conspiracy to commit burglary count (count two) and the counts of risk of injury to a child (counts three, four and five). Thereafter, the state filed a substitute information charging the defendant with the remaining counts, one count of burglary in the first degree and one count of threatening.

During counsels' closing arguments to the jury, the court determined that the state had failed to allege sufficient evidence to support a charge of burglary in the first degree and, sua sponte, ordered the state to draw and file a substitute information replacing burglary in the first degree with burglary in the second degree. The defendant did not object or otherwise challenge the court's authority to order the substitution. The state filed the substitute information as ordered. The jury subsequently returned a guilty verdict with respect to the charge of burglary in the second degree and acquitted the defendant with respect to the threatening charge.

On December 14, 2001, the defendant filed a motion for a new trial or, in the alternative, to set aside the verdict, wherein the defendant argued that he was never given proper notice of the charge of burglary in the second degree. After a hearing on January 18, 2002, the court denied the motion, concluding that the charging instrument placed the defendant on notice that he also was charged with burglary in the second degree. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly denied his motion to set aside the verdict and for a new trial. Specifically, the defendant argues (1) that the court improperly ordered, sua sponte, that the state amend the information by substituting the charge of burglary in the second degree for the charge of burglary in the first degree, and (2) that Practice Book § 36-18 prohibited the amendment to the information.

A

The defendant first argues that the court improperly ordered, sua sponte, that the state amend the information by substituting the charge of burglary in the second degree for the charge of burglary in the first degree. More specifically, the defendant contends that the amendment was improper because burglary in the second degree is not a lesser included offense of burglary in the first degree and, therefore, the initial charge of burglary in the first degree failed to provide the defendant with adequate notice of the charges against him in violation of the sixth amendment to the United States constitution and the constitution of Connecticut, article first, § 8. The following additional facts are relevant to the proper resolution of the defendant's claim. In the amended information dated October 23, 2001, the state charged the defendant with burglary in the first degree, stating, inter alia, "that at the City of Bridgeport, Fairfield County, on or about the 30th day of June 2000 at or about 11:33 p.m., at 103 Catherine Street, Bridgeport, the said Robert Ward, while armed with a dangerous instrument, to wit: a large wooden stick, did enter or remain unlawfully in a building, the home of Willie or Rosalee Blake, with intent to commit a crime therein, in violation of Section 53a-101 (a)(1) of the Connecticut General Statutes. . . ."

During trial and after the state had rested, the defendant sought to dismiss each count of the six count information. The court granted the motion with respect to the charges of conspiracy to commit burglary and risk of injury to a child. Following the dismissal of those counts, the defendant offered his opening statement. Having heard the opening statement, the court indicated that it might make additional revisions to the charges after it had an opportunity to review Willie Blake's testimony. The jury was excused for a brief recess. When the court reconvened, it informed counsel that it was dismissing the charge of burglary in the first degree and that it was ordering, sua sponte, that the state amend and file a substitute information replacing the charge of burglary in the first degree with a charge of burglary in the second degree. The court determined that on the basis of the precise time alleged in the information, 11:33 p.m., the testimony by Willie Blake that the defendant did not have a stick when he returned to the apartment at 11:30 p.m., and the conflicting testimony by Blake and police officers with respect to the timing of the incidents led to the conclusion that the information improperly alleged burglary in the first degree. The state complied with the court's order. In the substitute information filed on December 10, 2001, the state charged the defendant with burglary in the second degree alleging, inter alia, "that at the City of Bridgeport, Fairfield County, on or about the 30th day of June 2000 at or about 11:33 p.m., at 103 Catherine Street, Bridgeport, the said Robert Ward, did enter or remain unlawfully in a dwelling, the home of Willie or Rosalee Blake, at night, with intent to commit a crime therein, in violation of section § 53a-102 of the Connecticut General Statutes. . . ." The jury subsequently convicted the defendant of burglary in the second degree.

The proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and a motion for a new trial is the abuse of discretion standard. See State v. Hammond, 221 Conn. 264, 267-70, 604 A.2d 793 (1992); see also Bolmer v. McKulsky, 74 Conn. App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003). "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) State v. Fitzgerald, 257...