State v. Whistnant

CourtSupreme Court of Connecticut
Writing for the CourtBefore COTTER; LOISELLE
Citation179 Conn. 576,427 A.2d 414
PartiesSTATE of Connecticut v. John WHISTNANT.
Decision Date12 February 1980

Page 414

427 A.2d 414
179 Conn. 576
STATE of Connecticut
v.
John WHISTNANT.
Supreme Court of Connecticut.
Argued Oct. 10, 1979.
Decided Feb. 12, 1980.

Page 415

[179 Conn. 577] 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 [179 Conn. 576] COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

[179 Conn. 577] 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 [179 Conn. 578] 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

Page 416

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.

[179 Conn. 579] 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) [179 Conn. 580] 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

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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.

[179 Conn. 581] 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 [179 Conn. 582] 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 [179 Conn. 583] 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.

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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 [179 Conn. 584] the defendant's claim and to take this occasion to reexamine the rule for...

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220 practice notes
  • State v. O'Neill
    • United States
    • Supreme Court of Connecticut
    • June 24, 1986
    ...guilty of the greater offense but guilty of the lesser." State v. Smith, 185 Conn. 63, 76-77, 441 A.2d 84 (1981). See State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). At oral argument, the state conceded that the first three prongs of Smith had been met but maintained that the f......
  • State v. Flynn, Nos. 4132
    • United States
    • Appellate Court of Connecticut
    • April 5, 1988
    ...described in the information or bill of particulars, without[14 Conn.App. 18] having first committed the lesser...." State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 To determine what constitutes a lesser included offense of the offense charged, this court will examine the statutes and ......
  • State v. Henry, No. 23067.
    • United States
    • Appellate Court of Connecticut
    • May 6, 2003
    ...every lesser included offense suggested by the evidence or by the information, indictment and bill of particulars." State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980). "A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: ......
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • September 28, 1982
    ...be requested by either the state or the defendant. State v. Cannon, 185 Conn. 260, ---, 440 A.2d 927 (1981); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Absent such a request, the refusal of the court so to charge is justified. State v. Kolinsky, 182 Conn. 533, 544, 438 A.2......
  • Request a trial to view additional results
220 cases
  • State v. O'Neill
    • United States
    • Supreme Court of Connecticut
    • June 24, 1986
    ...guilty of the greater offense but guilty of the lesser." State v. Smith, 185 Conn. 63, 76-77, 441 A.2d 84 (1981). See State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). At oral argument, the state conceded that the first three prongs of Smith had been met but maintained that the f......
  • State v. Flynn, Nos. 4132
    • United States
    • Appellate Court of Connecticut
    • April 5, 1988
    ...described in the information or bill of particulars, without[14 Conn.App. 18] having first committed the lesser...." State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 To determine what constitutes a lesser included offense of the offense charged, this court will examine the statutes and ......
  • State v. Henry, No. 23067.
    • United States
    • Appellate Court of Connecticut
    • May 6, 2003
    ...every lesser included offense suggested by the evidence or by the information, indictment and bill of particulars." State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980). "A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: ......
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • September 28, 1982
    ...be requested by either the state or the defendant. State v. Cannon, 185 Conn. 260, ---, 440 A.2d 927 (1981); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Absent such a request, the refusal of the court so to charge is justified. State v. Kolinsky, 182 Conn. 533, 544, 438 A.2......
  • Request a trial to view additional results

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