State v. Morin

430 A.2d 1297, 180 Conn. 599, 1980 Conn. LEXIS 805

• Court: Supreme Court of Connecticut
• Decided: May 20, 1980
• Status: Published

Opinions

Loiselle, J.

The defendant was tried by a jury of twelve upon an indictment charging him with felony murder. The jury returned a verdict of guilty. The defendant appealed from the judgment rendered on the verdict. The sole issue raised by the defendant is whether the trial court erred in refusing to instruct the jury on burglary in the first degree; General Statutes § 53a-101 (a) (2) ;¹ and robbery in the first degree; General Statutes § 53a-134 (a) (1) ;² as lesser offenses included in the indictment charging felony murder. General Statutes § 53a-54c.³

“A defendant is entitled to an instruction on a lesser 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 jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” . State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The record shows that the state requested an instruction to the jury on burglary and robbery as lesser included crimes⁴ and that the defendant supported that request. The grand jury’s indictment alleged “that at the City of Willimantic, in Windham County, on or about the 21st day of August, 1975, the said Adrien M. Morin, acting with two other persons, did commit a burglary and robbery, and in the course of and in furtherance of such crimes, said Adrien M. Morin caused the death of a person other than one of the participants, namely, the death of one Dominic Dipollina, late of 240 Walnut Street, in Willimantic, in violation of the provisions of § 53a-54c of the General Statutes of Connecticut.” The state’s request for an instruction on the lesser crimes and the terms of the indictment satisfy the first two criteria of the test established in State v. Whistnant, supra.

The third requirement of the rule is that there be some evidence which would justify conviction of the lesser offenses which were alleged in the indictment and for which instructions were requested. To make this determination it is necessary to review the evidence presented. Shortly after 11 p.m. on August 21, 1975, the Willimantic police department sent a police sergeant to 240 Walnut Street to investigate a possible burglary in progress. The sergeant met two other police officers at the scene upon his arrival. He noticed a light on in the basement. The sergeant and a neighbor entered the house through the front door which was slightly ajar and walked through the house to the den. There they found eighty-year-old Dominic Dipollina clothed in shorts and a T-shirt lying on his hack on the floor. His legs were bloody, there was blood aronnd his head, and he appeared to be in shock. They called an ambulance and one of the officers performed first aid.

An investigation showed that an upstairs window, which was intact earlier in the day, had been broken from the outside. Several neighbors had heard the sound of breaking glass at about 11 p.m. that evening. A palm print “lifted” from the window was subsequently identified as that of Adrien Morin. Several witnesses also saw three people run from the house shortly after 11 p.m., one of whom ran with a limp. A neighbor saw the three get into a maroon Chevrolet and drive away with the lights off. Adrien Morin ran with a limp and, at that time, the defendant’s brother Ronald Morin drove a 1965 maroon Chevrolet.

The details of the crime were supplied by Ronald Morin, the defendant’s brother, who testified under a grant of immunity. Ronald and another brother Lionel had painted Dipollina’s house together in the summer of 1973. Their sister, Jeannine Baril, lived next door to Dipollina at 238 Walnut Street. In August, 1975, several days before the crime, Ronald and Adrien visited Jeannine at her house. When Adrien suggested that they go next door to “see if the old man has anything,” Jeannine objected. Adrien told her not to get in his way. Ronald apparently broke up the confrontation.

On August 21, 1975, the night of the crime, Ronald, Adrien and an unnamed third party drove to Jeannine’s house. On the way there, Adrien said he wanted to rob Dipollina. Ronald parked the car around the corner and went to Jeannine’s house while Adrien went to Dipollina’s house and looked in a window. Upon hearing a window break, Ronald went to the Dipollina home, entered through the front door and found Adrien grasping Dipollina by his shirt. Adrien pushed Dipollina onto a couch, took a wallet from his pocket and took money from another wallet. Ronald testified that he tried to convince Adrien to leave. Shortly thereafter, Ronald and the unnamed third party went to the basement to take beer, leaving Adrien alone upstairs with Dipollina. Ronald heard Dipollina cry out and implore Adrien to let him alone. When Ronald came back upstairs, Dipollina was unconscious but breathing. The three ran from the house and fled in the car with the $180 taken from one of the wallets.

This evidence was offered by the state. The defendant presented no evidence. The state’s evidence justified a conviction for first degree burglary,⁵ first degree robbery,⁶ or both. State v. Rado, 172 Conn. 74, 75-77, 372 A.2d 159 (1976), cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977). The defendant has therefore established the third criterion of State v. Whistnant, supra.

With regard to the fourth and final criterion of State v. Whistnant, it is necessary to determine which elements differentiate first degree burglary and first degree robbery from felony murder, then to consider whether those elements were sufficiently in dispute to permit the jury consistently to find the defendant innocent of felony murder but guilty of burglary or robbery. General Statutes § 53a-54c which proscribes felony murder provides in pertinent part: “A person is guilty of murder when acting either alone or with one or more persons, he commits . . . robbery [or] burglary . . . and, in the course of and in furtherance of such crime . . . he . . . causes the death of a person other than one of the participants . . . .”⁷ Since the definition of felony murder includes the crimes of robbery and burglary by name, the only pertinent elements of felony murder which remain to differentiate these lesser offenses from felony murder are encompassed by the words . . in the course of and in furtherance of such crime . . . he . . . causes the death of a person other than one of the participants . . .

The evidence reviewed above was uncontradicted by the defendant. There was no dispute at trial that Dipollina’s injuries were inflicted in the course of and in furtherance of the crime. The only differentiating element which may have been in dispute, and then solely by virtue of cross-examination, was the cause of death. The evidence showed that Dipollina was beaten on August 21, 1975, but did not die until December 24, 1975. The state introduced witnesses to prove that the beating was the cause of death approximately four months later. One of Dipollina’s daughters testified that before August 21, 1975, her father, though eighty years old, enjoyed a fairly vigorous life. He cared for his home, mowed his lawn, gardened, chopped wood, shoveled his driveway, and drove his truck every day to go shopping. She had visited her father on the day of the crime and he was well. At around midnight that evening she was called to the emergency room where she saw her father on a stretcher. He was just staring and didn’t talk. The next day she returned to the hospital. Her father was dazed and in shock. His neck was purple, his lip stitched, his nose broken, and his arm discolored. One of his eyes was swollen almost shut. His daughter took him to her home. Upon his release from the hospital, Dipollina alternated between living at the houses of his two daughters. He had difficulty eating and sleeping and was afraid to be left alone. He was hospitalized again for three days after complaining that he could not swallow, then again returned to live with his daughters. On September 15, 1975, he was transferred to a convalescent home where he did not want to eat, became incoherent and had to be harnessed. Throughout this period he had difficulty swallowing and pains in his head. He was transferred to the hospital on October 7,1975, where he died on December 24, 1975.

The state also called five physicians to testify to the cause of Dipollina’s death. The doctor who treated him in the emergency room on the night of the crime testified that Dipollina had received more than one blow to the head, neck and arms, sustaining fractures in the nose and abrasions, lacerations and contusions on the neck, lip and forearms. His family doctor, whom he had been seeing for the past twelve years, testified that Dipollina’s daughter had telephoned him two days after the crime and said that her father was experiencing a great deal of pain. Upon examination, the doctor determined that swelling in his neck prohibited Dipollina from eating and readmitted him to the hospital to check for further internal injuries. The family physician also testified that on September 15, 1975, Dipollina was admitted to a convalescent home where he became increasingly frightened, agitated, aggressive, belligerent and unaware of wbat he was doing. His mental condition deteriorated. He had to be physically restrained on October 2,1975, and gradually became semicomatose. He developed pneumonia and a cerebral hemorrhage. On October 7, 1975, he was transferred to the hospital where he was fed intravenously when he refused to eat. He ingested less and less fluid, resulting in more hemorrhaging. He was unconscious for the last several weeks of his life. This physician attributed Dipollina’s steadily deteriorating condition to the injuries sustained on August 21,1975.

The third physician called by the state was the assistant medical examiner who completed the death certificate and ordered that an autopsy be performed. He classified the cause of death as “homicidal assault.”⁸ On cross-examination, he testified that the specific cause of death was subdural hemorrhaging and clotting, which, in Dipollina’s case, included old and new bleeding covering both sides of the brain. He also testified that subdural hemorrhages are almost always caused by trauma, that he had never seen one caused by anything else, and that symptoms of subdural hemorrhage may not appear for many weeks after a traumatic event.

The state also called as a witness the pathologist who performed the autopsy on the date of Dipollina’s death. He found that death was caused by “chronic subdural hematoma,” a chronic hematoma being one which is not apparent immediately after the injury and may not be recognized for months. The physician testified that chronic hematomas are most frequently caused by trauma and characterized by slow bleeding. Symptoms include personality change and headaches. This physician testified that the hematoma which caused Dipollina’s death had existed for three to six months, and could not have been caused by the fall from his hospital bed on December 7, 1975. He said that the autopsy also revealed pneumonia, malnutrition and muscle wasting. In answer to a hypothetical question assimilating the facts, the doctor concluded that the only explanation for the cause of death was the injuries sustained August 21, 1975, which caused the hematoma which in turn .caused death. On cross-examination, the doctor’s conclusion was refined to a statement that the hematoma may not have been the sole cause of death but was, in this ease, the “earliest insighting [sic] cause.”

Finally the state called the chief medical examiner for the state of Connecticut who discussed the circumstances of death and the findings of the autopsy with the doctor who had performed it. In answer to a hypothetical question which contained much of the evidence presented, the doctor concluded that the August 21 injuries were “the precipitating cause of death.”

The defendant introduced no expert or direct evidence to contradict the testimony of the five doctors called by the state. The few statements cited by the dissenting opinion from cross-examination of the state’s five expert witnesses can hardly be considered a “strong attack” on the state’s evidence that the defendant caused Dipollina’s death. The evidence most favorable to the defendant was adduced on cross-examination of the pathologist who performed the autopsy and of the chief medical examiner. These witnesses agreed that the injuries sustained by Dipollina on August 21, 1975, were not the “sole proximate cause of death” but were, according to the pathologist, a major cause of terminal illness and death, and according to the medical examiner, the precipitating cause of death. Therefore, even when viewed in a light most favorable to the defendant, the testimony of the medical experts supports the jury’s conclusion that the August 21, 1975 beating set in motion the force which killed Dominie Dipollina on December 24, 1975. Washington v. State, 171 Conn. 683, 687, 372 A.2d 106 (1976). It cannot be said that the element of causation was sufficiently in dispute to permit the jury consistently to find the defendant innocent of felony murder but guilty of first degree burglary or robbery. State v. Whistnant, supra. Nor can it be said that this court’s decision in State v. Whistnant, rendered during the pendency of this appeal, has worked injustice on the defendant. The only criterion of Whistnant which remains unsatisfied.on appeal turns on the issue of causation, which was also the only issue remotely in dispute at trial. The record shows that the parties had ample opportunity to address the issue of what caused the victim’s death. The trial court did not err in refusing to submit first degree burglary and first degree robbery to the jury as lesser included offenses.

“It is axiomatic that the state, in a criminal case, has the burden of proving every essential element of the crime charged beyond a reasonable doubt. State v. DeCoster, 147 Conn. 502, 504, 162 A.2d 704; State v. Newman, 127 Conn. 398, 400, 17 A.2d 774.” State v. Jackson, 176 Conn. 257, 258, 407 A.2d 948 (1978). Here, the facts which the jury could have found from the state’s evidence were sufficient to prove each and every element of felony murder, including causation, and therefore sufficient to sustain the verdict. State v. Jackson, supra, 262.

There is no error.

In this opinion Cotter, C. J., Bogdanski and Peters, Js., concurred.

1 “[General Statutes] Sec. 53a-101. burglary in the first degree: class b felony, (a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

2 “[General Statutes] Sec. 53a-134. bobbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . .”

The crime of robbery is defined as follows: “[General Statutes] Sec. 53a-133. robbery defined. 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.”

3 “[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary . . . and, in the eourse of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

4 The parties’ requests for an instruction on first degree burglary and robbery is more accurately characterized as a mutual acknowledgment that the allegations of the indictment supported a charge on those crimes as lesser included offenses under State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972).

5 See footnote 1, supra.

6 See footnote 2, supra.

7 Although the statute provides an affirmative defense, it was not asserted by the defendant in this ease and is not in issue on the appeal.

8 The witness testified that the death certificate required him to classify the death as an accident, a suicide, a homicide, undetermined or due to natural causes.