State v. McCalpine

463 A.2d 545, 190 Conn. 822, 1983 Conn. LEXIS 571
Supreme Court of Connecticut·Decided July 26, 1983·No. 9552; 9560·Published·Cited by 31 cases

Opinions

Parskey, J.

After a trial to the jury, the defendants were each found guilty of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and one count of kidnapping in the second degree in violation of General Statutes § 53a-94. From the judgment the defendants have appealed.

On appeal the defendants raise four claims of error. All relate to the trial court’s charge to the jury. As one of their claims the defendants allege that the court, by referring to a knife in its instructions, amended the information in each case to include acts not originally charged. Two claims focus on the court’s instructions regarding the defendants’ status as aiders and abettors. Finally, a fourth claim avers that the court erred [824] on the kidnapping count by failing to instruct the jury that they could find that the victim’s abduction was merely incidental to the commission of another crime.

The jury could reasonably have found the following facts: The victim, Edward Nikogosian, was a limousine driver. At 9 p.m. on August 29,1978, Nikogosian, pursuant to a call from the company dispatcher, drove to La Guardia Airport. There he picked up a man who gave the name Chuck Mangione (in reality, Daniel Faila) and his two bodyguards. The bodyguards who are the defendants in this case gave their names as Alfred (Alfred McCalpine) and Role (Bobbie Williams).1

Nikogosian drove the men into Manhattan to the Paramount Hotel and thereafter drove them to several locations throughout the city. When they returned to the hotel at approximately 2 a.m. on August 30, the police arrived and took the three passengers to the police station. Nikogosian did not know why they were arrested but he followed the police car to the station in order to get-paid for his chauffeuring. The two defendants were released but could not pay Nikogosian. Instead, he drove them back to the hotel and returned in the morning to drive them to the police station where Faila’s uncle was to pay him. He remained there with the defendants from 9:45 in the morning until 3 p.m. at which time Faila was released and paid Nikogosian $200. Nikogosian then again drove them around the city making various stops.

Finally the three asked to go to Hartford. Nikogosian requested an additional $250 before making the trip. Faila gave him $260 and after dinner they left for Connecticut.

[825] Faila told Nikogosian to turn off the highway when they got to Cromwell and directed him to the first hotel off the exit. Because it was full, they went to another hotel across the street. The defendants brought the luggage in. Thereafter, they came outside and told Nikogosian to park the limousine. They also indicated to Nikogosian that Faila had requested a receipt. In accordance with company policy, Nikogosian had to give the receipt to the person who paid him. Thus he went into the building and rode the elevator upstairs to the room with the three men.

When they entered the room, Faila went into the bathroom while Nikogosian waited for a pencil to make out the receipt. Suddenly, the two defendants covered Nikogosian's mouth with a cloth that smelled of chemicals. They were trying to push him onto the bed when Faila came out of the bathroom with a shotgun. Nikogosian relinquished his wallet holding nearly $900 and several credit cards. McCalpine then bound Nikogosian’s hands and legs. At some point, during the robbery, Williams held the shotgun. Williams also called out for someone to hand him a knife but Nikogosian was never touched by one. The men took the car key and left. Moments thereafter, Nikogosian partially untied himself and called the front desk for help. The police responded.

When the police arrived, they found Nikogosian on the bed, wrapped in sheets with his hands and legs tied. They also found a necktie that had been used to keep a washcloth in the victim’s mouth so that he could not speak.

The defendants were arrested the following day at Bradley Airport after Faila attempted to use one of the stolen credit cards.

[826] The jury, during the course of the trial, heard some testimony concerning a knife. The court thereafter as part of its charge made mention of a knife in its definition of a deadly weapon. The defendants argue that the trial court, by referring to a knife in its instructions, amended the information to include acts not originally charged in the information.2 The defendants claim that this alleged variance permitted the jury to consider guilt as to an offense materially different from that charged in the information.

During the course of the trial the jury heard evidence about and ultimately saw a boy scout jackknife that the state attempted to introduce as an exhibit. The evidence [827] adduced at trial concerning a knife was minimal. Nikogosian testified that, as the two defendants were tying him up, he heard Williams call for a knife. The victim further testified that he was never touched with a knife nor did he see a knife during the attack. Nikogosian also indicated that he may have seen a knife earlier and that he felt threatened by Williams’ request for a knife.

A knife had been seized on the day following the attack from a hotel room registered to Daniel Faila. The court refused to admit the knife as an exhibit because it was not named in the search warrant and because the victim was unable to identify the particular knife. The court instructed the jury to disregard and forget about the knife. The state concedes that the evidence failed to disclose that the knife qualified as either a deadly weapon or a dangerous instrument. See General Statutes § 53a-3 (6) and (7).

The defendants rely on two brief excerpts from the court’s charge to establish their claim. After defining robbery, the court proceeded to discuss first degree robbery where a participant is armed with a deadly weapon or dangerous instrument. The court defined a deadly weapon as “a weapon from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles.” The court then added “[y]ou should know that under the definition a weapon from which a shot may be discharged, such a gun that is in proper functioning condition, whether or not loaded at the time of the offense, is a deadly weapon. Also a knife is defined in that definition.” The defendants argue that these scant references amounted to a variance and allowed the jury to consider guilt on an offense materially different from that charged in the information.

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State v. McCalpine, 463 A.2d 545, 190 Conn. 822, 1983 Conn. LEXIS 571 (Colo. 1983).

463 A.2d 545 (State v. McCalpine) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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