State v. Scognamiglio

519 A.2d 607, 202 Conn. 18, 1987 Conn. LEXIS 728
CourtSupreme Court of Connecticut
DecidedJanuary 6, 1987
Docket12221
StatusPublished
Cited by67 cases

This text of 519 A.2d 607 (State v. Scognamiglio) 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. Scognamiglio, 519 A.2d 607, 202 Conn. 18, 1987 Conn. LEXIS 728 (Colo. 1987).

Opinion

Callahan, J.

The defendant, Ciro Scognamiglio, was charged in two separate indictments with murder in violation of General Statutes § 53a-54a, and with felony murder in violation of General Statutes § ñSa-bác.1 The indictment for felony murder charged that the defendant, together with Michael Oczkowski, “did commit robbery, and in the course of and in furtherance of such robbery said participants or either one of them did cause the death of Jose Rodriguez, not a participant in said robbery . . . .” After a jury trial, the defendant was acquitted of murder, but convicted of felony murder and sentenced to a term of imprisonment.

The jury could reasonably have found the following relevant facts. On the evening of January 4, 1982, at about 10 p.m., the defendant and Oczkowski drove to South Main Street in Waterbury to obtain drugs. Oczkowski was operating an automobile owned by his father-in-law, while the defendant occupied the front passenger seat. When Oczkowski parked the car on [20]*20South Main Street near its intersection with West Liberty Street, the defendant was approached by the victim, Jose Rodriguez, and two other hispanic males. A conversation ensued between the defendant and Rodriguez during which Rodriguez handed the defendant a small glassine bag containing heroin from a bundle of similar bags that he was holding.

The defendant tasted the heroin, found it satisfactory, kept the bag, and asked Rodriguez for the additional bags. Rodriguez refused to comply with the defendant’s request until he received payment. The defendant thereupon produced a handgun, pointed it out the passenger side window of the car, and told Rodriguez that he was going to “take it all.” At the sight of the gun, Rodriguez turned and ran toward West Liberty Street. The defendant then leaned from the car window, aimed and fired one shot, striking Rodriguez in the back and killing him. Immediately, the automobile “peeled out,” rapidly leaving the scene. Later that same evening, the defendant and Oczkowski were apprehended at the home of Oczkowski’s in-laws in Waterbury.

Oczkowski2 testified at the defendant’s trial, as did other witnesses, that the defendant had shot the victim under circumstances similar to those outlined above. The defendant, on the other hand, testified that Oczkowski, after exchanging heated words with Rodriguez, had leaned from the driver’s side of the automobile across the front seat, shooting Rodriguez from the passenger window of the car. The defendant testified, in effect, that no robbery had occurred and that he had merely been a spectator to an altercation between Oczkowski and the victim that had resulted in the victim’s death.

[21]*21I

The defendant first claims that the trial court unconstitutionally expanded the offense with which he was charged, when it instructed the jury that it could convict him of felony murder if it found that he or another participant in the alleged robbery caused the death of the victim “in the course of and in furtherance of [the robbery] or of flight therefrom. ” (Emphasis added.) The governing statute, General Statutes § 53a-54c, creates criminal liability under both theories; the indictment by which the defendant was charged, however, contained only an allegation that the accused had violated the statute by causing the death of the victim “in the course of and in furtherance of” the robbery. There was no reference in the indictment to flight.

The defendant claims that the trial court’s instruction allowed the jury to convict him on a theory of liability for which he was not indicted. He argues, therefore, that he had no notice of the charges against him in violation of his rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant failed to raise this claim at trial or to except to the trial court’s charge. Moreover, he filed a written request that the trial court charge the jury on flight.3 He contends, nevertheless, that this claim is reviewable on appeal because he has been denied a fundamental constitutional right and a fair trial. State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We find no constitutional violation.

[22]*22“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature of the charge against him ‘with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . . ' State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979); State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983).” State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Couture, 194 Conn. 530, 560, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). The killing of a nonparticipant “in the course of and in furtherance of [a robbery] or of flight therefrom” are simply two methods of committing the same crime. See State v. Secore, 194 Conn. 692, 697-98, 485 A.2d 1280 (1984); State v. Couture, supra; State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); State v. Cofone, 164 Conn. 162, 166, 319 A.2d 381 (1972); State v. Edwards, 163 Conn. 527, 532, 316 A.2d 387 (1972). The defendant’s conviction under either theory would consequently bar a subsequent prosecution for the same offense. State v. Franko, supra. “Therefore, for the defendant to establish an infringement of these constitutional rights, he must demonstrate that the court’s charge caused him unfair surprise or prejudiced the preparation of his defense. State v. Roque, supra, 156.” State v. Franko, supra. We conclude that it did neither.

There is nothing in the record to indicate that the defendant would have altered his defense in any way if a theory of liability based on the killing of the victim “in the course of and in furtherance of . . . flight” (emphasis added) from the robbery had been included in the allegations of the indictment. His defense was predicated on his assertion that he had not been a participant [23]*23in the robbery. He testified that he had been at the scene only because he had accompanied Oczkowski to buy drugs, and that he was merely a passenger in the automobile, an innocent bystander, when Oczkowski shot the victim and fled from the scene. We are, therefore, unable to discern any way in which the defense of the accused was prejudiced by the trial court’s instruction concerning the flight theory of liability.

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Cite This Page — Counsel Stack

Bluebook (online)
519 A.2d 607, 202 Conn. 18, 1987 Conn. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scognamiglio-conn-1987.