State v. Evans

Page 494

689 A.2d 494

44 Conn.App. 307

STATE of Connecticut, v. James EVANS.

No. 15143.

Appellate Court of Connecticut.

Argued Dec. 12, 1996.

Decided Feb. 18, 1997.

Certification Denied April 10, 1997.

[44 Conn.App. 308] Donald Dakers, Special Public Defender, for appellant (defendant).

Jo Anne Sulik, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and James G. Clark, Supervisory Assistant State's Attorney, for appellee (State).

Before DUPONT, C.J., and SCHALLER and DALY, JJ.

OPINION

DALY, Judge.

The defendant appeals from judgments of conviction rendered after a jury trial. The convictions stemmed from charges arising out of three cases involving different incidents and different victims, which cases were consolidated for trial. Each case related to one set of facts. In the first case, the jury found the defendant guilty of burglary in the third degree in violation of § 53a-103 (a), kidnapping in the first degree in violation of § 53a-92 (a)(2)(B), and robbery in the third degree in violation of § 53a-136 (a). In the second case, the jury found the defendant guilty of burglary in the first degree in violation of § 53a-101 (a)(2), kidnapping in the first degree in violation of 53a-92 (a)(2)(B), assault in the second degree in violation of § 53a-60 (a)(2), and robbery in the third degree in violation of § 53a-136 (a). In the third case, the jury found the defendant not guilty of burglary in the first degree in violation of § 53a-101 (a)(2), but guilty of the lesser included offense of burglary in the third degree and guilty of assault of a victim sixty or older in the second degree in violation of § 53a-60b (a), and robbery in the third degree in violation of § 53a-136 (a).

The defendant claims that the trial court improperly (1) found sufficient evidence to sustain the conviction for robbery in the third degree in the first case, (2) admitted into evidence the tape recording of the 911 call in the second case, (3) permitted the identification of the color photograph in the second case, (4) infringed upon the defendant's right against self-incrimination by ordering him to display his teeth in the presence of the jury in the second case, and (5) ordered such display in the second case knowing that the defendant would refuse to comply. ¹

The jury reasonably could have found the following facts. In the first case, at about 4:30 p.m. on July 20, 1994, the defendant entered the premises at 5 Mueller Drive in Hamden. The female occupant was upstairs taking a shower and two female guests, Michelle Onofrio and Gina Jurado, were in the downstairs bedroom when the defendant entered the bedroom and demanded money. When both young women denied having any money, the defendant grabbed one of them and forced her to unscrew the wires to the videocassette recorder (VCR) and Nintendo game in the bedroom. The defendant demanded that they accompany him and pushed them upstairs to another bedroom, where he took jewelry. The defendant then went downstairs to the living room where he took another VCR. Finally, the defendant gathered the items he had taken in the kitchen and left the premises with the items. The two women ran to the bathroom and informed the occupant of what had transpired, and the police were notified.

In the second case, at about 6 p.m. on August 24, 1994, the victim was alone in her home at 559 Woodin Street in Hamden, when the defendant came to her door and stated that the victim's husband had hired him to do some work on the premises. Realizing that the story was fictitious, she immediately closed and bolted the door, ran to the kitchen telephone and dialed 911. Meanwhile, the defendant ran around to the kitchen door, kicked it in, entered the home and tried to wrestle the telephone from her hand. When she would not relinquish it, he bit her hand and punched her in the face. While she continued to clutch the receiver, he ripped the telephone base from the wall and hit her in the eye, face and left shoulder with it. He then knocked her to the floor and continued to beat her. As she struggled to get away, he knocked her to the floor again and choked her. She managed to elude him and ran for the telephone in the family room. The defendant threatened her with bodily harm and ordered her to stop screaming. He knocked the telephone to the floor, dragged her back through the kitchen into the living room and out the front door, then released her and ran away with her pocketbook. When the Hamden police arrived, the victim described her assailant, particularly noting that he had distinctive front teeth, which were "chipped, almost evenly, so that it looks almost like a triangle."

A week after the incident, the victim identified the defendant's photograph from an array of eight black and white photographs at the Hamden police station. She asked if any color photographs were available and was taken to the New Haven police station, where she was shown four color photographs of the defendant taken at different times. She identified the fourth photograph, but failed to identify the first three. She later identified the defendant in court. The victim still suffers from injuries to her hip and shoulder incurred during the attack by the defendant.

In the third case, at about 11 p.m. on August 1, 1994, the defendant forced his way into the apartment of an eighty-nine year old woman. He grabbed her from behind and forced her to walk through her apartment with him, keeping his hand over her mouth while he looked for items to steal. He took five dollars in quarters from a cedar box on her dresser and demanded that she surrender two rings from her fingers, threatening to remove them by force if she did not comply. Although the victim was unable to identify the robber, two fingerprints found on the cedar box matched the defendant's fingerprints obtained during a previous arrest.

I

In the first case, the defendant was convicted of, inter alia, robbery in the third degree in violation of General Statutes § 53a-136. Section 53a-136 (a) provides that "[a] person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133." Section 53a-133 provides: "A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." Thus, a robbery occurs when the accused uses or threatens the immediate use of physical force for the purpose of committing a larceny. Proof of simple larceny requires proof of a taking of property with the intent to deprive the owner of possession permanently. In re Juvenile Appeal (84-4), 1 Conn.App. 642, 645, 474 A.2d 485 (1984).

The defendant claims that because the information alleged a robbery of two individuals, Onofrio and Jurado, the state was required to prove that both Onofrio and Jurado were robbed. He claims that because Jurado was upstairs in the shower during the robbery, and there was no confrontation between the defendant and Jurado, she was not robbed and, therefore, he should be acquitted of this count. We disagree.

This issue was raised in State v. Kyles, 221 Conn. 643, 650, 607 A.2d 355 (1992). In that case, the defendant argued that although "the state could have limited [the count] by charging the defendant with a robbery upon only one specific person, the state gratuitously added elements of proving a total of at least three separate robberies" committed against two unspecified persons and one named person. (Internal quotation marks omitted.) Id. "Since there was no evidence presented that [the named person] was robbed, the defendant [claimed] that the state failed to prove that the defendant committed the robbery in the particular manner described." Id., 650-51, 607 A.2d 355. Our Supreme Court disagreed, holding that because the state had charged the defendant with only one count of robbery in the first degree it "was only required to prove that one person was robbed." Id., 651, 607 A.2d 355. The court pointed out that the state can "charge a separate robbery count for each and every robbery of each and every person." Id.

There is no question that "the state is limited to proving that the defendant has committed the offense in substantially the manner described" in the information. (Internal quotation marks omitted.) State v. Newton, 8 Conn.App. 528, 532, 513 A.2d 1261 (1986). "The inclusion in the state's pleading of additional details concerning the offense," however, "does not make [those additional details] essential elements of the crime...." State v. Morrill, 197 Conn. 507, 551, 498 A.2d 76 (1985). Because the defendant was charged with only one count of robbery, and it was proved that he had committed a robbery of one individual, his conviction of one count of robbery was proper. State v. Kyles, supra, 221 Conn. at 651, 607 A.2d 355.

II

The defendant next claims that the trial court improperly permitted into evidence in the second case the tape recording of the 911 call that the victim made to the Hamden police department when the intruder entered her home, and the return call from the police to her home, which consisted entirely of the victim screaming. The trial court listened to the tape outside the presence of the jury and determined that the evidence was relevant and that its probative value outweighed any prejudicial effect.

The defendant claims that the 911 recording was irrelevant and, in the alternative, that even if it was relevant, its prejudicial effect outweighed its probative value. The state argues that the 911 recording is relevant because it confirms "that the initial report...