State v. Whistnant

Citation179 Conn. 576,427 A.2d 414
CourtSupreme Court of Connecticut
Decision Date12 February 1980
PartiesSTATE of Connecticut v. John WHISTNANT.

Joette K. Rubin, Asst. Public Defender, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, were George D. Stoughton, State's Atty. and Robert M. Meyers, Asst. State's Atty., for appellee (state).

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

LOISELLE, Associate Justice.

The defendant John Whistnant was charged with robbery in the first degree in violation of 1975 Public Acts, No. 75-411, § 1(a)(2), now General Statutes § 53a-134(a)(2), 1 larceny in the third degree in violation of General Statutes § 53a-124(a)(1), 2 and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37. 3 He pleaded not guilty and elected to be tried by a jury of six. The jury found the defendant guilty as charged on the first and third counts of the information, and guilty of the lesser offense of larceny in the fourth degree as included in the second count.

The jury could reasonably have found the following facts. The defendant took a .38 caliber gun from James McCalop and refused to return it to him on November 16, 1975. The gun was worth no more than fifteen dollars. This was the essence of the state's case on the larceny charge.

On the charge of carrying a pistol without a permit, the state offered evidence to show that Frank Ortiz, a liaison officer with the state department of corrections, located the defendant and persuaded him to relinquish possession of a gun on November 17, 1975. The jurors could reasonably have believed that this was the same gun which the defendant took from McCalop the previous day.

On the first degree robbery charge, the state offered testimony of Sophie Dziegielewski, a cashier at Leach's Food Store in New Britain, who identified the defendant as the man who entered the store with another person on November 17, 1975, pointed a gun at her and told her to place the money from two cash registers into a paper bag. The defendant, in his brief, contends that Ms. Dziegielewski's testimony did not mention any oral threat by the defendant to use force.

The defendant assigns as error the trial court's failure to instruct the jury on larceny in the fourth degree as a lesser included offense of robbery in the first degree. The court instructed the jury that fourth degree larceny was a lesser included offense of third degree larceny as charged in the second count of the information, but chose to instruct the jury on second and third degree robbery as the only lesser included crimes of first degree robbery as charged in the first count.

The defendant claims that he has a fundamental constitutional right to have the jury instructed as to any lesser offense if upon the evidence he can properly be found guilty of it and the allegations of the information include the elements 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 due process right to a fair trial. The defendant contends that his case constitutes an exceptional circumstance under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576, (1973), worthy of the court's review despite his failure to raise the constitutional claim at trial.

In State v. Monte, supra, this court held that it was error to deny the defendant, who was convicted on a charge of aggravated assault, his request to charge on simple assault. The court overruled State v. Thomas, 105 Conn. 757, 765, 136 A. 475 (1927), which held that a trial court's failure to instruct the jury on simple or aggravated assault as lesser included offenses of robbery with violence, the crime charged, was harmless error because the jury had found the defendant guilty as charged. The court's holding in State v. Monte does not rely on the constitution. The court's statement (131 Conn. p. 137, 38 A.2d 434) that "a court is bound to submit to the jury matters which are necessarily involved in the disposition of a case or essential to a full and fair consideration of it" was intended to refute the state's contention that the defendant's request to charge on the lesser included crime was properly denied because he had failed to cite legal authority for the requested instruction as he was required to do by the Practice Book. This statement has no constitutional overtones. The court in State v. Monte simply applied the harmless error doctrine to review the propriety of an instruction on a lesser included offense in view of the allegations contained in the information and the evidence adduced at trial and found there was harmful error.

A review of the court's decisions since State v. Monte lends no credence to the claim that a defendant has a fundamental constitutional right to a jury instruction on a lesser included offense. State v. Mele, 140 Conn. 398, 402, 100 A.2d 570 (1953); State v. Pallanck, 146 Conn. 527, 529, 152 A.2d 633 (1959); State v. Devine, 149 Conn. 640, 650, 183 A.2d 612 (1962); State v. Brown, 163 Conn. 52, 60-63, 301 A.2d 547 (1972); State v. Cari, 163 Conn. 174, 182-84, 303 A.2d 7 (1972); State v. Blyden, 165 Conn. 522, 528-30, 338 A.2d 484 (1973); State v. Brooks, 167 Conn. 281, 282, 355 A.2d 67 (1974); State v. Huot, 170 Conn. 463, 467, 365 A.2d 1144 (1976); State v. Ruiz, 171 Conn. 264, 272-74, 368 A.2d 222 (1976); State v. Carr, 172 Conn. 458, 465-67, 374 A.2d 1107 (1977); State v. Chetcuti, 173 Conn. 165, 169, 377 A.2d 263 (1977); State v. Brown, 173 Conn. 254, 258-59, 377 A.2d 268 (1977); State v. Troynack, 174 Conn. 89, 96-99, 384 A.2d 326 (1977); State v. Neve, 174 Conn. 142, 145-46, 384 A.2d 332 (1977); State v. Ciotti, 174 Conn. 336, 337, 387 A.2d 546 (1978); State v. Harden, 175 Conn. 315, 323-25, 398 A.2d 1169 (1978); State v. Vasquez, 176 Conn. 239, 405 A.2d 662 (1978); 4 State v. Anderson, 178 Conn. 287, 292-93, 422 A.2d 323 (1979); State v. Goldson, 178 Conn. 422, 423 A.2d 114 (1979); State v. Armaral, 179 Conn. 239, 425 A.2d 1293 (1979).

The United States Supreme Court has not decided whether the due process clause of the fourteenth amendment requires the trial court to instruct the jury, sua sponte, on a lesser included crime. 5 Nor have the United States Courts of Appeal found a constitutional right to a jury instruction on a lesser included offense. A criminal defendant's right to such an instruction in a federal court is not embodied in the constitution, but is provided by Federal Rules of Criminal Procedure, Rule 31(c). 6 See, e. g., United States v. Stolarz, 550 F.2d 488, 491 (9th Cir. 1977); United States v. Carter, 540 F.2d 753, 754 (4th Cir. 1976); United States v. Markis, 352 F.2d 860, 866 (2d Cir. 1965), vacated on other grounds, 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864 (1967). These cases comport with the analysis adopted by the United States Supreme Court in Sansone v. United States, 380 U.S. 343, 349-50, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965), and Berra v. United States, 351 U.S. 131, 133-34, 76 S.Ct. 685, 100 L.Ed. 1013 (1956).

In State v. Vasquez, supra, the court held that the trial court's failure to instruct the jury, as requested, on the crime of larceny in the fourth degree as a lesser included offense of robbery as it was alleged in the information could not be regarded as harmless error. There, as in this case, the jury found the defendant guilty as charged. Both juries convicted the defendants of first degree robbery, despite the courts' instructions that the jury could find the defendant guilty of robbery on the first, second or third degrees, or not guilty. There, as here, our analysis of the question of harmless error in State v. Monte, supra, remains applicable. State v. Vasquez, supra, 176 Conn. 244 n.5, 405 A.2d 662.

Unlike the defendant in State v. Vasquez, however, the defendant Whistnant failed to request an instruction on fourth degree larceny as a lesser included offense of first degree robbery as alleged in the information. There is no fundamental constitutional right to a jury instruction on every lesser included offense suggested by the evidence or by the information, indictment and bill of particulars. It is therefore incumbent on the defendant to request such an instruction. Absent a refusal of the trial court to give the requested instruction, this court need not consider the defendant's contention that the trial judge erred in failing to charge the jury on an alleged lesser included offense. 7 Nevertheless, we have decided to consider the defendant's claim and to take this occasion to reexamine the rule for determining when a defendant is entitled to an instruction on a lesser included offense.

Given a request to instruct the jury on a lesser included offense, which may be submitted by either the state or the defendant, if it is not possible to commit the crime charged in the information or bill of particulars without first having committed a lesser crime, and if, upon the evidence, an accused can properly be found guilty of the lesser crime, then the defendant is entitled to a jury instruction on that crime. State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972); State v. Monte, 131 Conn. 134, 135-37, 38 A.2d 434 (1944); see State v. Vasquez, 176 Conn. 239, 405 A.2d 662 (1978).

In State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972), this court established the rule that the allegations contained in the indictment, information and bill of particulars formed the criteria upon which the trial court must determine which lesser crimes were included in the crime charged. The rule has since been interpreted to mean that every lesser offense which could be found in the indictment, information or bill of particulars was a proper subject...

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