State v. Arena

663 A.2d 972, 235 Conn. 67, 1995 Conn. LEXIS 310
CourtSupreme Court of Connecticut
DecidedAugust 15, 1995
Docket14933
StatusPublished
Cited by59 cases

This text of 663 A.2d 972 (State v. Arena) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Arena, 663 A.2d 972, 235 Conn. 67, 1995 Conn. LEXIS 310 (Colo. 1995).

Opinion

NORCOTT, J.

The principal issue in this certified appeal is whether the trial court improperly denied the defendant’s request to charge the jury on a lesser included offense. The defendant, Anthony Arena, was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4)1 and [69]*69larceny in the second degree in violation of General Statutes § 53a-123 (a) (3).2 The defendant appealed from the judgment of conviction and the Appellate Court affirmed the judgment of the trial court. State v. Arena, 33 Conn. App. 468, 636 A.2d 398 (1994). We granted the defendant’s petition for certification to appeal,3 and now affirm the judgment of the Appellate Court on different grounds.

As stated by the Appellate Court, the jury reasonably could have found the following facts. “On August 13, 1991, at about 7:30 p.m., the defendant entered a Chucky’s convenience store in Hartford. Two employees, Dhanwantie Ramdayal and Alexander Smolkin, were standing behind the counter. The defendant picked out a candy and took it to the counter. He then told Ramdayal to ‘put it in a bag.’ Ramdayal was confused by the defendant’s statement and asked, ‘Put what in a bag?’ The defendant answered, ‘Put all the money in a bag.’ As the defendant said that, he placed an opaque plastic shopping bag on the counter. His hand was at the top of the bag and he gripped an object inside the bag. He pointed the object in the bag at Ramdayal. Ramdayal testified that she thought it looked like a gun and that it was round and about fifteen or sixteen inches long.

[70]*70“As the defendant was asking for the money, Smolkin walked toward the phone. The defendant then said to Smolkin, ‘Don’t call the police’ and ‘Don’t play cool.’ Smolkin turned and saw the object in the bag in the defendant’s hand. Smolkin could see the shape of the object and thought it looked like a long barrelled weapon. Smolkin further testified that in trying to make light of the situation during the robbery he joked, ‘Is that a real gun?’ and ‘Is it a real robbery?’

“Ramdayal was nervous and had difficulty opening the cash register. The defendant told her to open the register fast and ‘hurry up’ and ‘nothing will happen.’ When she opened the register, she withdrew the cash from the drawer. She did not know the precise amount of money she withdrew, but she knew it was less than $100, because it is the store’s policy not to have more than $100 in the drawer. She extended her hand with the money in it and the defendant snatched the money out of her hand. The defendant turned and left the store quickly, and Ramdayal called the police. The incident was taped by security cameras and the tapes were shown to the jury and admitted into evidence.” Id., 471-72.

At trial, “[t]he defendant filed a request to charge asking the court to instruct the jury that it could find the defendant guilty of robbery in the second degree as a lesser included offense of robbery in the first degree. Out of the presence of the jury, the trial court stated [that] it would charge on robbery in the second degree and robbery in the third degree as lesser included offenses. The defendant explained to the jury in his closing argument that they could find the defendant guilty of robbery in the second degree.4 The prosecution also argued robbery in the second degree to the jury.

[71]*71“Before the charge to the jury, however, the trial [court] informed the parties that after reviewing the cases and statutes he had decided not to charge on robbery in the second degree as a lesser included offense. Defense counsel raised his concern that he had already told the jury in his closing argument that they could find the defendant guilty of robbery in the second degree. In light of this, the trial court offered to [give] a curative charge to the jury and also offered to allow defense counsel to address the jury for the purpose of clarifying any confusion regarding the lack of a charge on robbery in the second degree. Defense counsel declined, stating he was concerned that calling attention to it would only further prejudice his client.5 The trial [court] then charged the jury as to robbery in the first degree and robbery in the third degree as a lesser included offense, without charging on robbery in the second degree as a lesser included offense and without referring to the parties’ closing arguments that included robbery in the second degree.” Id., 478. The defendant duly excepted to the charge.

[72]*72On appeal, the defendant claims that the trial court improperly refused to grant his request for an instruction to the jury on the crime of robbery in the second degree, General Statutes § 53a-135 (a) (2),6 as a lesser included offense of the crime of robbery in the first degree, General Statutes § 53a-134 (a) (4). See footnote 1. Additionally, the defendant claims he was prejudiced by the trial court’s permitting counsel to argue concerning robbery in the second degree to the jury and then failing to instruct the jury on that charge.

I

We first address the defendant’s claim that the trial court improperly denied his request to charge7 the jury [73]*73on robbery in the second degree, as a lesser included offense of robbery in the first degree.

“There is no fundamental constitutional right to a jury instruction on every lesser included offense . . .’’rather the right to such an instruction is purely a matter of our common law. State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980). “A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the juty consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id., 588.

In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, [74]*74592 A.2d 149 (1991); State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “[T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Citations omitted; internal quotation marks omitted.) State v.

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Bluebook (online)
663 A.2d 972, 235 Conn. 67, 1995 Conn. LEXIS 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-arena-conn-1995.