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State v. Dwyer8/2/2000
The defendant, Joseph N. Dwyer, Sr., appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (4). He claims that (1) the state's attorney engaged in prosecutorial misconduct that deprived him of his constitutional right to a fair trial and (2) the trial court improperly instructed the jury regarding intent. We affirm the judgment of the trial court.
The following facts are relevant to the resolution of this appeal. On March 21, 1995, the defendant entered a Glastonbury convenience store, wearing a disguise and displaying a firearm. He announced to the employee on duty that he was conducting a "stickup" and requested all the money from the cash register. The employee refused to cooperate and instead telephoned the Glastonbury police department. The defendant then drove away at a normal rate of speed in a vehicle that had a bag partially obscuring the rear license plate. The defendant was apprehended a short while later by Glastonbury police officers and charged with attempt to commit robbery.
At the time of the incident, the defendant was a Hartford police officer who was not assigned to active duty because he was receiving his full salary as a result of a workers' compensation claim. While he was a member of the police department, he received special training in crime prevention and advised merchants about security measures.
For several years prior to the robbery incident, the defendant had been treated for depression and substance abuse problems. During the months immediately preceding the robbery attempt, the defendant went through a divorce and was experiencing financial problems. On the night of the incident, the defendant consumed several alcoholic beverages and had taken three prescription medications: Fiorinal with codeine, Xanax and Wellbutrin.
At trial, the defendant asserted that he was not responsible for the attempted robbery because his intoxication, which resulted from the combination of alcohol and medication, prevented him from forming the specific intent required to commit that crime. On the basis of its verdict, the jury did not find that the defendant was unable to form the requisite intent. Additional facts will be discussed where relevant to the issues on appeal.
I.
The defendant first claims that the state's attorney committed prosecutorial misconduct during her cross-examination of his expert witness and during the state's closing argument, thereby effectively depriving him of his right to a fair trial under article first, §§ 8 and 9, of the constitution of Connecticut, and the fifth and fourteenth amendments to the United States constitution.
The following additional facts are necessary for the resolution of this claim. At trial, the defendant presented the testimony of an expert witness, Austin McCawley, his treating psychiatrist, to establish that at the time of the robbery attempt, the defendant was unable to form the requisite intent because he was under stress, had taken prescribed medications and had consumed alcoholic beverages. McCawley testified that he believed that the defendant did not have control over his conduct at the time of the criminal activity.
During cross-examination, the state's attorney inquired as to whether McCawley was aware of a report prepared during the defendant's treatment at the Institute of Living in Hartford (institute) and that the defendant had stated to the institute staff that he had had a blackout, which he saw as protection from criminal liability. McCawley responded that he was not aware that the defendant had made t
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