text:
    State of Connecticut v. Damon D. Lizzi
    (11700)
    Peters, C. J., Healey, Dannehy, Ment and S. Freedman, Js.

      Argued January 14
    decision released April 22, 1986

      Robert E. Silver, pro hac vice, with whom was Joshua R. Kricker, for the appellant (defendant).

      Arthur G. Aaron, special assistant state’s attorney, with whom were Carl Schuman, assistant state’s attorney, and, on the brief, Warren A. Gower and David Sullivan, assistant state’s attorneys, for the appellee (state).
   Dannehy, J.

The defendant, Damon D. Lizzi, was charged with embezzlement, in violation of General Statutes §§ 53a-119 (1), 53a-121 (b) and 53a-123. After trial by jury, the defendant was found guilty and sentenced to a term of one year with execution suspended after ninety days. On appeal the defendant contends that the trial court erred: (1) in denying his motion for judgment of acquittal at the close of the state’s case; (2) in admitting evidence tending to show the defendant’s commission of other crimes; (3) in failing to recharge the jury in accordance with the defendant’s request; and (4) in overruling the defendant’s objection to allegedly improper remarks by the prosecutor during closing argument. The defendant also claims that he was denied effective assistance of counsel at trial. The record discloses no error.

I

We first address the defendant’s claim that the trial court erred in denying his motion for judgment of acquittal filed at the close of the state’s case-in-chief. After the motion was denied, the defendant proceeded to present evidence in his defense, and, at the close of all the evidence again moved for judgment of acquittal. He moved for acquittal a third time after the jury had returned a verdict of guilty. On appeal, the defendant claims error only in the denial of the motion for judgment of acquittal after the close of the state’s casein-chief.

Under our waiver rule, a defendant may not appeal the denial of a motion for judgment of acquittal brought at the close of the state’s case-in-chief when he elects thereafter to introduce evidence in his own behalf. The reason for this rule is that the defendant, by presenting his own witnesses, may fill gaps, if any, in the evidence left by the state at the conclusion of its case-in-chief. We have recently questioned the constitutional validity of the waiver rule. State v. Rutan, 194 Conn. 438, 440-44, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 351-52, 481 A.2d 48 (1984). In the present case, however, we need not decide whether the denial of a motion for judgment of acquittal at the close of the state’s case-in-chief is assignable as error, because we find that the evidence was sufficient at that juncture. Our review of the evidence at the close of the state’s case-in-chief is limited to a determination of whether the jury “ ‘could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978).” State v. Rutan, supra, 444.

The jury could reasonably have found the following facts. The defendant was the administrator of a nursing home in Old Saybrook. In that capacity he received monthly benefit checks under the federal social security program on behalf of the elderly patients under his care. Although the defendant was legally entitled to charge the proceeds of each check directly against the operating expenses of the nursing home, he was required to reserve a twenty-five dollar monthly allowance from each check for the personal use of the elderly recipients. Accordingly, the defendant opened a separate account, known as the patients’ personal funds account, with the Essex branch of the Connecticut National Bank, against which the defendant was the only authorized drawer.

Robert Brousseau, an accountant for the state, audited the books of the nursing home. Brousseau testified that, according to the defendant’s records, there was a deficit in the patients’ personal funds account for the entire period between September 30, 1975, and September 30, 1978. It was undisputed at trial that between August 24,1976, and July 19, 1978, the defendant drew four checks against the personal funds account in the total amount of $1546.55, which he used to pay for shoes purchased by him and his family on a credit account with a local shoe store. Since the personal funds account was in deficit at all times during the period of these purchases, due to undertransfers of monies as reflected on the defendant’s own books, the jury could reasonably have concluded that the four checks were drawn from funds belonging exclusively to the patients of the nursing home.

The state also offered several witnesses who testified to a fraudulent intent on the part of the defendant. The defendant, in order to balance the individual equities in the patients’ personal funds account, maintained a system of patient ledger cards which served as passbooks against the account. With each monthly transfer on behalf of a patient to the personal funds account, the defendant would enter a twenty-five dollar debit on the patient’s ledger card, representing an increase in that amount of the patient’s share of the account. Conversely, whenever the defendant made a personal expenditure on behalf of a patient, he would enter a corresponding credit for that amount on the patient’s ledger card. Deborah Mackenzie, the defendant's former wife, testified that the defendant importuned her to falsify patient ledger cards by entering fictitious expenditures on behalf of patients. The defendant admitted to Mackenzie that he knew that this was wrong, but complained that the state was not paying enough money to cover the operating costs of the nursing home. By state regulation, a patient was allowed to accumulate no more than $250 in personal funds. Any money in excess of $250 reverted automatically to the state of Connecticut. The defendant told Mackenzie that if the patients did not spend their money, he would keep it for the nursing home. Three former bookkeepers employed at the nursing home also testified to false and irregular charges posted to patient ledger cards. The defendant concedes in his brief that the testimony of these witnesses, “if believed,” was sufficient to sustain a jury finding that he engaged in a scheme to defraud nursing home patients.

General Statutes § 53a-119 (1) provides that “[a] person commits embezzlement when he wrongfully appropriates to himself . . . property of another in his care or custody.” The defendant contends that the state failed to sustain its burden that the defendant appropriated property “of another” because it was unable to show that the funds contained in the patients’ personal funds account, together with petty cash on hand at the nursing home, were insufficient to satisfy the obligations to the patients as reflected on their individual ledger cards. We disagree. The crime of embezzlement is consummated where, as here, the defendant, by virtue of his agency or other confidential relationship, has been entrusted with the property of another and wrongfully converts it to his own use. State v. Moreno, 156 Conn. 233, 243, 240 A.2d 871 (1968); State v. Harris, 147 Conn. 589, 592, 164 A.2d 399 (1960); State v. Serkau, 128 Conn. 153, 158, 20 A.2d 725 (1941); State v. MacCullough, 115 Conn. 306, 311-12, 161 A. 512 (1932); State v. Henderson, 102 Conn. 658, 660, 129 A. 724 (1925); State v. Griswold, 73 Conn. 95, 98, 46 A. 829 (1900); see also State v. Vars, 154 Conn. 255, 266, 224 A.2d 744 (1966); LaFave & Scott, Criminal Law (1972) § 89; 26 Am. Jur. 2d, Embezzlement § 4, p. 552. The state presented sufficient evidence during its casein-chief to allow the jury reasonably to conclude that the defendant wrongfully appropriated to himself the money under his care which belonged to the patients of the nursing home in order to satisfy his personal obligations. In light of the testimony of the defendant’s former wife and his former bookkeepers, a jury might reasonably have concluded that the aggregate charges as reflected on the patients’ ledger cards did not accurately state the account balance. Moreover, the testimony of Brousseau was sufficient to establish that there was always a deficit in the patients’ personal funds account, due to undertransfers by the defendant, and thus, that any appropriations by the defendant of monies from this account were wrongful as against the patients. The trial court did not err in denying the defendant’s motion for judgment of acquittal at the close of the state’s case.

II

The defendant next claims that the trial court erred in allowing the state to introduce evidence tending to show his commission of other crimes. The defendant first refers to the testimony of his former wife. As already stated, Mackenzie testified that the defendant importuned her to falsify patient ledger cards. Over the defendant’s objection, the trial court admitted Mackenzie’s testimony in order to prove a common scheme and design to defraud. The trial court gave an appropriate limiting instruction to the jury both during trial and in its charge.

Evidence of a defendant’s bad character, as shown through his commission of other crimes, is inadmissible to show that the defendant on a particular occasion acted in conformity therewith. Such evidence is admissible, however, to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency. State v. Vessichio, 197 Conn. 644, 664, 500 A.2d 1311 (1985); State v. Jacobowitz, 194 Conn. 408, 414, 480 A.2d 557 (1984); State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980); State v. Hauck, 172 Conn. 140, 143-44, 374 A.2d 150 (1976). We have held that in “a prosecution for embezzlement such as this, the range of relevant evidence is wide, especially as it bears on the essential element of an intent to defraud, which involves a state of mind and can generally be proved only by circumstantial evidence.” State v. Harris, supra, 601; see also State v. Carrione, 188 Conn. 681, 692, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983); State v. Tedesco, 175 Conn. 279, 288-89, 397 A.2d 1352 (1978). The evidence of the defendant’s attempt to persuade his former wife to falsify patient ledger cards, and his statements reflecting an awareness that his conduct was wrongful were highly probative of the defendant’s intent to defraud. The trial court in the proper exercise of discretion could reasonably have determined that the probative force of this evidence outweighed its prejudicial effect. The trial court did not err in admitting the testimony of the defendant’s former wife.

The defendant also claims error in the state’s cross-examination of Albert Lizzi, the defendant’s father. After Albert Lizzi had concluded his direct testimony as a witness for the defendant, the state, on cross-examination, sought to question him about larceny charges pending against him arising from the same investigation which led to the defendant’s arrest and ultimate conviction. The trial court, over the defendant’s objection, allowed the assistant state’s attorney to ask the following question: “Now, Mr. Lizzi, don’t you presently have pending against you in this particular court an information charging you with three counts of larceny in the first degree and one count of conspiracy with your son to defraud the state Medicaid program?” The trial court specifically instructed the jury during its charge that this evidence was to be considered only as relevant to Albert Lizzi’s interest, bias and motive in testifying.

Albert Lizzi, because he was a codefendant in separate but related charges arising from the investigation of the same nursing home, was clearly an interested witness. At the time of the defendant’s trial it was understood that the trial of Albert Lizzi would immediately follow. Albert Lizzi acknowledged his interest in the outcome of the defendant’s trial which, notwithstanding his familial relationship to the defendant, arose purely from his status as a codefendant in the same criminal enterprise. After the trial court had ruled that Albert Lizzi’s pending charges would be admitted into evidence, the witness stated outside the presence of the jury: “I believe that the state has succeeded now in leaving me on the stand as a prejudiced witness. If it remains this way, the decision of the jury can go against me. And this means an awful lot to me, this first part of this trial. I have to get a not guilty. I have to get it.” In State v. Moynahan, 164 Conn. 560, 601-602, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973), the witness had been “arrested and charged as a coconspirator with [the defendant] stemming from the same investigation and involving the same type of criminal behavior. . . . Under such circumstances the state had the right to cross-examine him to show whatever bias, interest or prejudice he might have regarding the case. 3 Wigmore, Evidence (Chadbourn Rev., 1970) §§ 949, 967; 58 Am. Jur., Witnesses, § 755; note, 20 A.L.R. 2d 1421, 1440 § 7,1446 § 12.” The trial court did not err in allowing the state to inquire into Albert Lizzi’s pending criminal charges.

Ill

We next consider the defendant’s claim that the trial court erred by refusing to recharge the jury in accordance -with counsel’s request. After the jury had commenced deliberations, it requested the trial court to reread its charge concerning the possible verdicts the jury might return. The trial court conducted a brief colloquy with the jury foreman and determined that rather than full reinstruction on all relevant statutory definitions as contained in the body of the charge, the jury wanted only a rereading of the trial court’s final summary of the possible verdicts that might be returned. After the trial court finished its recharge, defense counsel took exception to the trial court’s failure to include the complete definition of the statutory intent required for conviction of embezzlement under General Statutes § 53a-119 (1).

The trial court was fully justified in rereading no more of its charge than the jury wanted to hear. The defendant was charged only with the crime of larceny by embezzlement, and the only possible distinction between verdicts the jury might return related to the value of the property embezzled. The trial court instructed the jury that if it found the defendant had drawn the four checks in question pursuant to one scheme or course of conduct, the amounts involved could be aggregated in determining the grade of the offense. General Statutes § 53a-121 (b). The court also reinstructed the jury on the essential elements of the crime of embezzlement, without elaborating on the statutory definitions of any particular element. With regard to the element of intent, the trial court twice reminded the jury that, in order to find the defendant guilty, it must find that he appropriated or disposed of patients’ funds “without any legal justification and with a wrongful or dishonest intent as I have defined those terms for you.” The trial court committed no error in refusing the defendant’s request to reread its full charge on the element of intent.

IV

The defendant next contends that the trial court improperly overruled his objection to references by the prosecutor during final summation to individual patients of the nursing home whose names allegedly had not previously been introduced into evidence. In his summation the prosecutor exclaimed to the jury, “It didn’t belong to him ladies and gentlemen. That money belonged to the people, those patients like John Day, Mary Linski, Joseph Wronski, Henry Greenleaf. Those are the people the money belonged to.”

It would be improper for the prosecutor to comment during final summation on facts not introduced into evidence at trial. State v. Ferrone, 96 Conn. 160, 169, 113 A. 452 (1921). In the present case, however, the names of the patients referred to by the prosecutor had been introduced into evidence through their ledger cards which were admitted as full exhibits. The one exception was Mary Linski, whose correct name, Mary Lindsey, was most likely mispronounced by the prosecutor or mistranscribed by the stenographer. The trial court properly overruled the defendant’s objection to the prosecutor’s reference to individual victims in this case.

V

The defendant finally claims that he was denied the effective assistance of counsel at trial. We do not find it necessary to unduly prolong this opinion by review of the various arguments advanced by the defendant. This court has recently reaffirmed that “ ‘a claim of ineffective assistance of counsel is more properly pursued on a petition for a new trial or on a petition for a writ of habeas corpus rather than on direct appeal.’ ” State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (1986). Thus, we believe that this claim “should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.” Id., 542.

There is no error.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Santaniello, J.

license: Public Domain

text:
    State of Connecticut v. Harold Kemp State of Connecticut v. Robert Kemp
    (10727)
    (10778)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued February 5
    decision released April 22, 1986

      Robin C. Murphy and Stephen F. Frazzini, for the appellants (defendant in each case).

      Julia DiCocco Dewey, assistant state’s attorney, with whom were Elpedio Vitale, deputy assistant state’s attorney, and, on the brief, Arnold Markle, state’s attorney, John Durham, assistant state’s attorney, and Richard Palombo, Jr., legal intern, for the appellee (state).
   Santaniello, J.

The principal issue on these appeals is the propriety of the trial court’s ruling excluding expert testimony on the potential for inaccuracy of eyewitness identification of participants in crimes. After a joint jury trial, the defendants, Harold Kemp and his brother Robert Kemp, were found guilty of four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). Harold Kemp was given an effective sentence of five to ten years imprisonment and Robert a sentence of six to twelve years. They have separately appealed their convictions.

The jury could reasonably have found the following facts. On January 31, 1980, between 7:30 and 8 p.m., three black males entered Jimmy’s Army and Navy Surplus Store in West Haven and robbed the owner and his employees at gunpoint. The first man to enter the store, later identified as the defendant Harold Kemp, was unarmed but took some leather jackets and money from the cash register. The second man, later identified as the defendant Robert Kemp, carried a shotgun and took personal property from three of the employees. A third male, David Tyson, was armed with a pistol and shot the store’s owner while looking for money. The entire robbery lasted approximately five to ten minutes after which the three men fled. Nine days later the defendants were arrested in Newark, New Jersey, while riding in a car with Tyson. The gun used in the shooting was found on the front seat.

On February 14, 1980, store employees Napolean Gunn and Barry Cohen were able to identify the defendants from three photoboards shown them by police. Each board contained the same pictures arranged in different order. Gunn also identified the defendants in a pretrial lineup conducted in September, 1980. A store customer, Sandra Simpson, was able to identify Robert Kemp from a photographic display shown to her in October, 1980. All three witnesses also made identifications at trial.

The defendants claimed that this was a case of mistaken identity and presented an alibi defense. At trial, to support their argument that the state’s witnesses were mistaken, they sought to call as an expert witness, Robert Buckhout, a psychologist and recognized authority on the factors which affect the accuracy of identifications. The defendants offered his testimony to impeach the reliability of the witnesses who identified them. Through Buckhout, they sought to explain to the jury that: “(1) stress, particularly stress during an incident involving violence by a weapon, may decrease the reliability of the identification; (2) memory is not a ‘recording’ device which accurately records an event and does not change over time; (3) the identification process is affected by post-event information learned by a witness; (4) and the level of certainty demonstrated by a person does not reflect a corresponding level of accuracy.” After an evidentiary hearing was held outside the presence of the jury, the trial court refused the defendants’ offer to introduce the expert testimony.

On appeal, the defendants do not directly attack the reliability of the identifications made, but claim that the trial court erred in excluding Buckhout’s testimony. They argue that the court abused its discretion and violated their constitutional right to call witnesses on their own behalf. We find no error.

The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Biller, 190 Conn. 594, 617, 462 A.2d 987 (1983). The court’s decision “is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976).” State v. Biller, supra. Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. State v. Girolamo, supra; State v. George, 194 Conn. 361, 373, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); Schomer v. Shilepsky, 169 Conn. 186, 191, 363 A.2d 128 (1975); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Taylor v. Monroe, 43 Conn. 36, 44 (1875); see generally McCormick, Evidence (3d. Ed. 1984) § 13.

Although we have never specifically addressed the issue of the admissibility of expert testimony on the reliability of eyewitness identifications, the issue has received increased attention in other courts in recent years. Almost uniformly, state and federal courts have upheld the trial court’s exercise of discretion to exclude such testimony. See, e.g., United States v. Purham, 725 F.2d 450, 454 (8th Cir. 1984); United States v. Watson, 587 F.2d 365, 368-69 (7th Cir. 1978), cert. denied sub nom. Davis v. United States, 439 U.S. 1132, 99 S. Ct. 1055, 59 L. Ed. 2d 95 (1979); United States v. Amaral, 488 F.2d 1148, 1152-53 (9th Cir. 1973); People v. Lawson, 37 Colo. App. 442, 444-45, 551 P.2d 206 (1976); Taylor v. United States, 451 A.2d 859, 866-67 (D.C. App. 1982); Hooper v. State, 476 So. 2d 1253, 1257 (Fla. 1985); People v. Clark, 124 Ill. App. 3d 14, 21-22, 463 N.E.2d 981 (1984); Commonwealth v. Francis, 390 Mass. 89, 98-102, 453 N.E.2d 1204 (1983); cf. State v. Chapple, 135 Ariz. 281, 291-92, 660 P.2d 1208 (1983); People v. McDonald, 37 Cal. 3d 351, 369-72, 690 P.2d 701, 208 Cal. Rptr. 236 (1984). Such testimony has been excluded on the grounds that the reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them in determining the question. See Commonwealth v. Francis, supra, 96-97. Such testimony is also disfavored because, as one court has stated, “it invades the province of the jury to determine what weight or effect it wishes to give to eyewitness testimony.” State v. Poland, 144 Ariz. 388, 398, 698 P.2d 183 (1985).

The defendants claim that Buckhout should have been permitted to explain that a witness’ expression of certainty does not make the identification more reliable, and that stress, the passage of time and intervening events diminish a witness’ ability to make an accurate identification. Matters such as these, however, have generally been found to be within the realm of common experience and can be evaluated without expert assistance. United States v. Amaral, supra, 1153; People v. Clark, supra, 21; Commonwealth v. Francis, supra, 100-101; People v. Brown, 124 Misc. 2d 938, 940, 479 N.Y.S.2d 110 (1984). As the Supreme Judicial Court of Massachusetts has recently explained, “one may fairly contend that the jury would be aided by expert testimony. But [expert testimony on eyewitness identification], at least in this case and in most cases, deals with general principles, such as the fact that memories fade over time, that people under severe stress do not acquire information as well as alert persons not under stress, and that people tend unconsciously to resolve apparent inconsistencies between their memories and after-acquired facts. Obviously there are aspects of these general principles on which experts might make some contribution in particular cases. However, juries are not without a general understanding of these principles and, as the trial of this case demonstrates, they see the possible application of these principles in concrete circumstances. The jury [must] have the opportunity to assess the witnesses’ credibility on the basis of what is presented at trial and not solely on general principles.” Commonwealth v. Francis, supra, 101.

We are aware that in many cases the determination of guilt or innocence depends in large part on the credibility assigned to eyewitness identifications, and that in many instances identifications may be unreliable. See United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); see generally note, “Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification,” 29 Stan. L. Rev. 969 (1977). This does not mean that a criminal defendant is without protection. Due process requires that such identifications be used only if they are reliable and are not the product of unnecessarily suggestive police procedures. See Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985). The weaknesses of identifications can be explored on cross-examination and during counsel’s final arguments to the jury. See United States v. Amaral, supra; People v. Lawson, supra, 445; Commonwealth v. Francis, supra, 100. If the reliability of the identifications can be adequately questioned by such means and the jury is capable of understanding the reasons why they may be unreliable, the introduction of expert testimony would be “a superfluous attempt to put the gloss of expertise, like a bit of frosting, upon inferences which lay persons were equally capable of drawing from the evidence.” State v. George, supra. In this case, the defendants fully cross-examined each witness, expounded on the dangers of misidentification during argument and had the benefit of the court’s instructions to the jury on the factors it should consider in determining the reliability of the identifications. In conclusion, therefore, we cannot say that the trial court abused its discretion in excluding Buckhout’s expert testimony.

We also reject the defendants’ contention that the exclusion of the expert testimony abridged their sixth amendment right to call witnesses in their defense. This right does not grant the defendants the freedom to call any witness they choose. “In the exercise of this right, the accused, as required of the State, must comply with the established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); see also State v. Fullwood, 199 Conn. 281, 284, 507 A.2d 85 (1986). The defendants had ample opportunity to question the witnesses who identified them and expose any weaknesses of the identifications. The trial court properly excluded the proffered expert testimony on the basis that it would not have aided the jury in its deliberations. The court’s exercise of discretion excluding the testimony did not under the circumstances violate the defendants’ constitutional rights.

The defendant Harold Kemp also claims that the jury should have been instructed on the elements necessary to find him liable as an accessory under General Statutes § 53a-8. He argues that he could have been found guilty of robbery in the first degree only as an accessory and that the failure of the trial court to charge the jury on that theory of liability violated his right to due process by relieving the state of its burden of proving the essential elements of the charged offense. See State v. Griffin, 175 Conn. 155, 162-63, 397 A.2d 89 (1978). Because Harold Kemp failed to request such an instruction and to object to the charge as given, we review his claim for the limited purpose of determining whether the trial court deprived him of a fundamental constitutional right and a fair trial. State v. Fleming, 198 Conn. 255, 269-70, 502 A.2d 886 (1986); State v. Sinclair, 197 Conn. 574, 580-81, 500 A.2d 539 (1985).

As noted above, the jury could reasonably have found that Harold Kemp was unarmed at the time of the robbery and that he took money and leather goods from the store while his brother robbed the employees with a shotgun and Tyson shot the owner with a pistol. Harold Kemp’s argument that he was entitled to a charge on accessorial liability is premised on the contention that he could not have been convicted as a principal to robbery in the first degree under General Statutes § 53a-134 (a) (2) because he did not have a gun. The plain language of § 53a-134 (a), however, vitiates his claim. Under the statute, 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 ... (2) is armed with a deadly weapon . . . .” (Emphasis added.) The mere fact that Harold Kemp was not armed with a deadly weapon did not prevent the jury from finding him criminally responsible as a principal to the crime when it was apparent that his accomplices were so armed. Thus, contrary to his assertion, Harold Kemp’s conviction did not rest on the theory that he was an accessory and therefore the trial court did not deny him the right to due process and a fair trial by failing to instruct the jury on the elements of accessorial liability under General Statutes § 53a-8.

There is no error in each case.

In this opinion the other judges concurred.

       David Tyson, not a party to these appeals, pleaded guilty to robbery charges arising out of the incident.

       Perric Isenstein, another employee of the clothing store, also identified both defendants. He was, however, unable to testify at trial.

       In its charge to the jury, the court emphasized the critical nature of the identifications and reviewed various factors which might affect their reliability, including delay, performance under stress and inaccuracy of prior descriptions.

       “[T]here is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility.” State v. Harris, 198 Conn. 158, 164, 502 A.2d 880 (1985). The terms refer to the alternate means by which one substantive crime may be committed. State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985).

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. ’ ’


author: Peters, C. J.

text:
    State of Connecticut v. Lawrence Franko
    (12189)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued March 11
    decision released April 22, 1986

      John R. Gulash, Jr., and Richard Emanuel, with whom, on the brief, was Neil Lieberthal, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Bruce Hudock, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue on this appeal is whether evidence of a sexual assault victim’s prior virginity was properly excluded at the trial of her alleged assailant. After a trial to a jury, the defendant, Lawrence Franko, was convicted of sexual assault in the first degree, in violation of General Statutes § 53a-70 (a), and sentenced to twenty years imprisonment. The defendant appeals from this judgment.

The jury could reasonably have found the following facts. On the evening of June 3, 1982, the victim, an eighteen year old college student, accompanied two girlfriends to the Rock-It Cafe in Stamford. During the course of the evening, the victim consumed three or four alcoholic beverages and danced with several individuals, including the defendant. Shortly after 11 p.m., the victim left the cafe with the defendant to go for a ride on his motorcycle. The defendant drove to a deserted cemetery and stopped. When the victim got off the motorcycle and began to retreat from the defendant, he pursued her, threw her to the ground, and told her that there were “two ways [they] could [do] this.” As the victim continued to resist, screaming, the defendant choked her until she blacked out. He then sexually assaulted her while she was unconscious.

After the victim had regained consciousness, the defendant drove her back to the cafe but threatened to kill her if she called the police. She immediately went to a nearby hospital, where she was examined by a physician. This examination revealed bruises on the victim’s neck consistent with the application of pressure, and a small tear or laceration of the labia interna of her vagina. The victim subsequently notified police, who arrested the defendant several days later. The defendant admitted having had sexual intercourse with the victim, but claimed that she had consented to the act.

On appeal from the judgment against him, the defendant raises three claims of error. He claims that the trial court erred: (1) in excluding evidence of the victim’s virginity prior to the alleged assault; (2) in instructing the jury that it could convict the defendant of sexual assault in the first degree if it found that he had compelled the victim by the threat of force against her; and (3) in refusing the defendant’s request to charge the jury that sexual assault in the second degree was a lesser included offense of sexual assault in the first degree. We find no error.

I

The defendant first claims that the trial court erred when it prohibited him from asking the victim on cross-examination whether she had been a virgin at the time of the alleged assault. Prior to the introduction of any evidence in the case and again at the end of the state’s direct examination of the victim, the defendant notified the court that he intended to inquire into this subject on cross-examination. The trial court ruled that such inquiry was barred by General Statutes § 54-86f, commonly referred to as the Rape Victims Shield Law, which limits the admissibility of evidence of a sexual assault victim’s prior sexual conduct.

On appeal, the defendant attacks the trial court’s ruling on two grounds. He argues first that General Statutes § 54-86f by its terms limits only evidence of a sexual assault victim’s prior sexual activity, and not the victim’s lack of prior sexual activity. Therefore, he claims, the testimony he sought to elicit concerning the victim’s prior virginity was admissible because it fell outside the scope of the statute. Alternatively, he argues that, if this court interprets § 54-86f to apply to evidence of prior sexual inactivity, the excluded question was still admissible because it fell within one of the exceptions specifically provided in the statute. The state disagrees with both of the defendant’s contentions, arguing vigorously that § 54-86f restricts inquiry into all aspects of a victim’s sexual history.

We need not today decide the extent of § 54-86f’s reach because we conclude that the trial court’s ruling may be sustained on an alternate ground advanced by the state. See State v. Burge, 195 Conn. 232, 250-51, 487 A.2d 532 (1985); Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983); Cheshire v. McKenney, 182 Conn. 253, 261, 438 A.2d 88 (1980). The evidence concerning the victim’s prior virginity was properly excluded because the defendant failed to establish that this evidence was relevant to a material issue in the case.

The rules governing the determination of relevancy are well established. “[E]vidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.” State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). The trial court has broad discretion to exclude evidence whose logical nexus to a material fact or issue has not been established. State v. Talton, supra, 284; State v. Johnson, 190 Conn. 541, 551, 461 A.2d 981 (1983).

In the present case, the defendant claims that evidence of the victim’s prior virginity was relevant to provide an alternative explanation for an injury she suffered during the act of sexual intercourse. The victim testified that, upon regaining consciousness on the night of the incident, she knew that she had been sexually assaulted because, inter alia, her vaginal area was sore. The physician who examined her later that night testified that she had a small tear or laceration in the labia interna of her vagina which was consistent with the application of force to the area. Since the defendant had admitted having sexual intercourse with the victim and the only issue was whether she had consented, the defendant argued to the trial court that evidence of the victim’s prior virginity was crucial to provide an explanation for her vaginal injury consistent with consensual intercourse. He claimed that “a first sexual encounter would, by its very nature, result in some vaginal tearing . . . [a]s opposed to an inference . . . that it vvould be attributed to a forced entry.”

The defendant never, however, offered any evidence to support this conclusory assertion, although he was given ample opportunity to do so. The defendant made his initial request to raise this subject prior to the start of the state’s case. Although this request was denied, the trial court permitted the defendant to renew his argument at the end of the victim’s direct examination by the state, and even permitted the defendant to conduct a lengthy cross-examination of the treating physician in an attempt to establish the necessary causative link between the victim’s prior sexual status and the injuries she received. Nevertheless, despite these multiple opportunities, the defendant totally failed to establish such a link. On the contrary, the only medical evidence offered on the issue established categorically that there was no relationship whatsoever between a woman’s virginity and an injury of the type suffered by the victim. In the face of the defendant’s failure to establish the probative value of the proposed evidence, the trial court was acting well within its discretion in excluding it.

Our conclusion that the testimony the defendant sought to elicit was irrelevant equally defeats the defendant’s alternate claim that the limitation on his cross-examination of the victim violated his rights under the federal and state constitutions to confront and cross-examine the witnesses against him. The defendant does not contend that the trial court unduly restricted his overall cross-examination of the victim. Indeed, the length and scope of the defendant’s actual cross-examination would make such a claim untenable. The defendant’s sole constitutional claim on this issue is that his inability to inquire into the victim’s prior sexual status damaged his ability to establish a defense of consent. This argument misperceives the scope of a criminal defendant’s right to confront and cross-examine witnesses against him. This right is not absolute; Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Talton, supra, 284; but may bow to “other legitimate interests in the criminal trial process.” Chambers v. Mississippi, supra, 295; State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985); State v. Mastropetre, 175 Conn. 512, 521, 400 A. 2d 276 (1978). Such an interest is the trial court’s “right, indeed, duty, to exclude irrelevant evidence.” State v. Mastropetre, supra, 521; State v. Talton, supra, 283-85; State v. Randolph, 190 Conn. 576, 594, 462 A.2d 1011 (1983); State v. Johnson, supra, 551; State v. Gaynor, 182 Conn. 501, 509 n.8, 438 A.2d 749 (1980). Since the defendant failed to establish that the testimony he sought to elicit was relevant to a material issue in the case, he cannot complain that his constitutional rights were violated when that testimony was excluded. Accordingly, the trial court did not err in prohibiting this inquiry.

II

The defendant next claims that the trial court unconstitutionally enlarged the offense with which he was charged when it instructed the jury that it could convict him of sexual assault in the first degree if it found that he had compelled the victim to engage in sexual intercourse either by the use of force against her, or by the threat of use of force. Although § 53a-70 (a) creates liability under both theories, the state in its information alleged that the defendant had violated the statute only by the use of force. The defendant claims that the trial court’s instruction effectively permitted the jury to convict him on the basis of an uncharged theory of liability, violating his rights under the fifth, sixth, and fourteenth amendments to the United States constitution and under article first, § 8, of the Connecticut constitution. The defendant concedes that he did not take exception to this charge or raise these claims at trial. He contends that this claim is nevertheless reviewable on appeal under the second exception created by State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because the “record adequately supports a claim that [he] has clearly been deprived of a fundamental constitutional right and a fair trial.” We find no constitutional violation.

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). Since compulsion by the use of force and compulsion by the threat of force are simply two methods of committing one offense; State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984); the defendant’s conviction under either theory of liability would bar subsequent prosecution for the same offense. 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.

We conclude that the record does not support the defendant’s claim that he was surprised by the disputed instruction or that this instruction prejudiced his defense in any way. During the prosecution of its case, the state presented evidence that the defendant threw the victim to the ground and, when she resisted, told her that there were “two ways [they] could [do] this.” This statement could reasonably have been construed by the jury, under the circumstances surrounding the incident, as a threat that the victim would be harmed if she did not submit to the defendant’s sexual advances. The defendant did not object to this testimony as outside the scope of the information. See State v. Roque, supra, 155. This failure to object, coupled with the defendant’s subsequent failure to except to the disputed instruction itself, negates his current claim of unfair surprise.

More important, there is nothing on the record to suggest that the defendant would have changed his defense in any way had the state included the “threat of force” theory of liability in the information. On the contrary, the defendant’s entire defense was predicated on his assertion that the victim’s participation in the sexual act was consensual, a defense which encompassed a claim of threat of force as well as a claim of use of force. The defendant’s reliance on our holding in State v. Belton, 190 Conn. 496, 461 A.2d 973 (1983), is thus misplaced. In that case, the defendant had been charged with burglary in the first degree by entering a building unlawfully with the intent to commit a crime within. The trial court instructed that the jury could convict him if it found either that the defendant had entered unlawfully or that he had remained unlawfully in the building with the requisite intent. Since the focus of the defendant’s defense had been to establish that he had entered the building lawfully, we held that the charge providing an alternative ground for conviction may well have prejudiced his defense. Unlike the defendant in Belton, the present defendant has pointed to no area, nor have we discerned any, in which his defense was prejudiced by inclusion of the theory of “threat of force” in the charge. Had the jury believed that the victim had consented to the sexual intercourse, the defendant would have been acquitted under either theory of liability. Consequently, the record does not support the defendant’s claim that his rights under the sixth amendment and article first, § 8, were adversely implicated by the trial court’s instruction.

For similar reasons, we find no violation of the defendant’s constitutional rights to due process. Due process requires that a criminal defendant be given notice of the specific charge against him and an opportunity to defend against that charge. Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 92 L. Ed. 644 (1948). Although the information alleged only that the defendant had violated the statute by the use of force against the victim, it is clear, as discussed earlier, that the state presented evidence sufficient to support a conviction under the alternate statutory theory of threat of force. The presentation of this evidence gave the defendant adequate notice that he was being accused under both theories of liability. The state could properly have moved during trial for permission to amend the information to conform with this additional proof. Practice Book § 624. In the absence of prejudice to the defendant, the trial court would have been justified in permitting such an amendment without violating the defendant’s rights to due process. State v. Belton, supra, 501 n.5; State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); State v. Ruiz, 171 Conn. 264, 269-70, 368 A.2d 222 (1976). We have already determined that the defendant’s ability to-present a defense was not prejudiced by the implicit expansion of the information. Accordingly, the record does not support the defendant’s claim that his due process rights were violated.

We reiterate our disapproval of a trial court’s reading of an entire statute when the defendant has been formally charged under only one section of that statute. State v. Carter, 189 Conn. 631, 645, 458 A.2d 379 (1983). Nevertheless, we conclude that the error of which the defendant complains is tantamount to a variance between the pleadings and the proof. In the absence of an exception, when sufficient evidence on the uncharged issue has been presented to justify its submission to the jury, such a variance does not rise to the level of a constitutional violation unless the record establishes a lack of proper notice or prejudice to the defendant. Since the defendant suffered neither lack of notice nor prejudice in preparing his defense, he cannot prevail on this claim of error.

Ill

The defendant’s final claim is that the trial court erred in refusing his request to charge that sexual assault in the second degree; General Statutes § 53a-71 (a) (2); is a lesser included offense of sexual assault in the first degree. The trial court ruled that sexual assault in the second degree did not constitute a lesser included offense. The defendant excepted to this ruling, arguing that evidence that the victim had consumed alcohol on the evening of the incident, coupled with the defendant’s testimony that she had also ingested cocaine, could have supported a jury conclusion that her unconsciousness had been self-induced, and thus justified a conviction under § 53a-71 (a) (2). See State v. Rodgers, 198 Conn. 53, 60-62, 502 A.2d 360 (1985).

The law governing a criminal defendant’s entitlement to a lesser included offense charge is well settled. Such an instruction is warranted only if four conditions are met: (1) an appropriate request has been filed by the defendant; (2) it is not possible to commit the greater offense without having first committed the lesser; (3) there is evidence justifying conviction of the lesser offense; and (4) the evidence on the elements differentiating the offenses is sufficiently in dispute to permit a consistent finding of innocent of the greater offense but guilty of the lesser.. State v. Castro, 196 Conn. 421, 427, 493 A.2d 223 (1985); State v. Jacobs, 194 Conn. 119, 127-28 n.4, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); State v. MacFarlane, 188 Conn. 542, 547, 450 A.2d 374 (1982); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

The second condition of the Whistnant test has not been satisfied in this case because it is possible to commit sexual assault in the first degree without first having committed sexual assault in the second. To violate § 53a-71 (a) (2), sexual assault in the second degree, a person must engage in sexual intercourse with someone who is physically helpless or mentally incapacitated. To violate § 53a-70, sexual assault in the first degree, a person must compel another by force to engage in sexual intercourse. It is plainly possible to do the latter without first having done the former, and the defendant concedes as much.

The defendant argues, nonetheless, that because the evidence at trial warranted a charge of second degree sexual assault, the trial court’s failure to give such a charge deprived him of his right to a fair trial under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We are unpersuaded. We have rejected the constitutional claim advanced by the defendant on several occasions, most recently in State v. McIntosh, 199 Conn. 155, 158-60, 506 A.2d 104 (1986). See also State v. Castro, supra, 429; State v. MacFarlane, supra, 547-49. The defendant has proffered no persuasive reasons for a different resolution of the issue in this case. The crime of sexual assault in the second degree is an offense separate and distinct from sexual assault in the first degree. A criminal defendant has no constitutional right to a jury instruction on a separate, uncharged crime. State v. Vitale, supra, 408; State v. MacFarlane, supra, 548-49. Since the crime of sexual assault in the second degree is not a lesser included offense of sexual assault in the first degree, the trial court did not err in refusing to give the requested instruction.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes (Rev. to 1981)] Sec. 53a-70. sexual assault in the first degree: class b felony, (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       “[General Statutes (Rev. to 1983)] See. 54-86f. admissibility of evidence of prior sexual conduct. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the prior sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her prior sexual conduct, or (3) evidence of prior sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied.”

       Before the trial court, the defendant claimed that the testimony he sought to elicit was admissible under the second and fourth exceptions provided in § 54-86f, although it is arguable that the defendant’s ensuing argument to the court encompassed the first exception as well. On appeal, the defendant has relied on the first and fourth exceptions.

       Although the court did not specifically rule on the basis of relevancy, the fourth exception to § 54-86f permits evidence of an assault victim’s prior sexual conduct when it is “so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” Consequently, a good portion of the defendant’s argument to the court concerned the relevancy of the proposed evidence.

       The defendant was able to establish through medical testimony that an injury of the type suffered by the victim can occur during consensual intercourse where there is an extreme disparity of size between the partners.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”
      Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . .

       The fifth amendment to the United States constitution provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
      The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .” The fourteenth amendment to the United States constitution provides in relevant part: “All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right . . . to be informed of the nature and cause of the accusation . . . .”

       The defendant excepted to what he claimed was the trial court’s “finding of fact as to whether or not [the defendant’s statement to the victim could] be interpreted to imply the threat of force,” which the defendant characterized as an attempt to direct the verdict. He never, however, excepted on the ground that this instruction enlarged the offense.

       The defendant also argues that this claim is reviewable because it constitutes plain error. Practice Book § 3063. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). The error of which the defendant complains is not so obvious or so egregious as to constitute plain error.

       It is clear that the trial court’s instruction did not create a risk that the defendant would be convicted of a separate and distinct offense. State v. Secore, 194 Conn. 692, 698, 485 A.2d 1280 (1984); see Cole v. Arkansas, 333 U.S. 196, 200-201, 68 S. Ct. 514, 92 L. Ed. 644 (1948).

         “[Practice Book] Sec. 624.--substantive amendment after COMMENCEMENT OF TRIAL
      “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       In his brief, the defendant also claimed, without amplification, that his due process rights were violated because the court’s charge created the “impermissible . . . risk” that he was convicted on less than proof beyond a reasonable doubt of each essential element of the crime with which he was charged. Our finding that the evidence presented on the threat of force theory of liability was sufficient to justify a conviction, coupled with the trial court’s clear instruction on reasonable doubt, disposes of this claim.

       At the time of the alleged assault, General Statutes (Rev. to 1981) § 53a-71 (a) (2) provided: “sexual assault in the second degree: class c felony, (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is . . . (2) mentally defective, mentally incapacitated or physically helpless.”

       The defendant cites several United States Supreme Court cases which hold that due process may require a lesser included offense instruction in capital cases. See Spaziano v. Florida, 468 U.S. 447, 456-57, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984); Hopper v. Evans, 456 U.S. 605, 611, 102 S. Ct. 2049, 72 L. Ed. 2d 367 (1982); Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). In none of these cases, however, was a claim made that the offense on which the defendant had requested an instruction was not in fact a lesser included offense of the offense charged. In addition, in all of these cases, the defendant faced the death penalty if convicted of the more serious offense. “[T]here is a significant constitutional difference between the death penalty and lesser punishments.” Beck v. Alabama, supra, 637.