STATE OF CONNECTICUT v. GUILLERMO BALBUENA
(AC 37208)
Appellate Court of Connecticut
September 13, 2016
Sheldon, Prescott and Mihalakos, Js.
Argued April 18—officially released September 13, 2016
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
Lisa A. Vanderhoof, assigned counsel, for the appel-
Jean E. Silverio, certified legal intern, with whom were Harry Weller, senior assistant state‘s attorney, and, on the brief, Brian Preleski, state‘s attorney, and Brett J. Salafia, senior assistant state‘s attorney, for the appellee (state).
MIHALAKOS, J. The defendant, Guillermo Balbuena, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of
The jury reasonably could have found the following facts. On January 8, 2011, the victim, Erick Cruz, was at his aunt‘s home in New Britain for a Three Kings Day celebration. While the victim and his family were celebrating, the defendant, his brothers Yair Balbuena and Mario Balbuena, and three other individuals arrived at the scene in two vehicles. Upon their arrival, the defendant‘s group began to vandalize a car belonging to the victim‘s brother, Mario Cruz, who was also at the Three Kings Day celebration. After receiving a call from Cruz, the victim and his cousin, Marcelino Bermejo, ran downstairs and emerged from the building, whereupon they encountered the defendant‘s group.
The defendant and his five cohorts advanced on the victim. In response to the group‘s advance, the victim began to back away toward a garage located behind the building and urged Bermejo to call the police. Bermejo ran back into his aunt‘s home to make the telephone call. The defendant‘s group brandished weapons, which included two guns and three knives, and said to the victim that they were going to kill him, and asked him, “how does it feel to have a pistol in your face?” The group pursued the victim around a car, around the garage, and back into the street.1 Members of the group then shot at the victim multiple times, and one of the shots struck the victim in the neck, exiting through his jaw.
Santa Bermejo, a cousin of the victim and sister of Marcelino Bermejo, was in a building across the street when she heard a gunshot. In response to the noise, she stepped onto the second floor porch and lay on her stomach where she could look through a gap between the floor and the solid railing. From her location on the porch, Santa Bermejo was able to observe and identify the defendant and his two brothers. She also saw the defendant shoot at the victim. Once the defendant and his cohorts fled, she went onto the street. Shortly thereafter, Marcelino Bermejo and Santa Bermejo found the victim lying on the ground, bleeding from his wounds. The police and ambulance arrived, and the victim was taken to Saint Francis Hospital and Medical Center in Hartford, where he was treated for his injuries.
The victim gave two statements to the police following the incident, one at the hospital on January 13, 2011, and one at the New Britain Police Department on May 18, 2011. On both occasions, the victim stated that the
The defendant was arrested on October 3, 2012, and charged with criminal attempt to commit murder in violation of
The defendant claims that there was insufficient evidence to support his conviction for conspiracy to commit murder. First, the defendant argues that the jury lacked sufficient evidence to find that he and his coconspirators had entered into an agreement to kill the victim. Specifically, he contends that the jury lacked sufficient evidence to find the existence of a formal or express agreement, of a dispute between himself and the victim from which the jury reasonably could have inferred that an implied agreement was made to kill the victim, or of a swiftly formed agreement between the defendant and his coconspirators to murder the victim at the time of the incident. Second, the defendant claims that the jury lacked sufficient evidence to find that he had the requisite specific intent to kill the victim. We disagree.
We first set forth our standard of review and the relevant law. “The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt . . . . The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury‘s verdict.” (Internal quotation marks omitted.) State v. Bonner, 110 Conn. App. 621, 636, 955 A.2d 625, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second,
When evaluating the sufficiency of the evidence, “[t]here is no distinction between direct and circumstantial evidence so far as probative force is concerned . . . . Indeed, [c]ircumstantial evidence . . . may be more certain, satisfying and persuasive than direct evidence.” (Citation omitted; internal quotation marks omitted.) State v. Jackson, 257 Conn. 198, 206, 777 A.2d 591 (2001). Therefore, “the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence.” (Internal quotation marks omitted.) State v. Crump, 43 Conn. App. 252, 256, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).
“To prove the crime of conspiracy, in violation of
“The existence of a formal agreement between parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence. . . . The state need not prove that the defendant and a coconspirator shook hands, whispered in each other‘s ear, signed papers, or used any magic words such as we have an agreement.” (Citations omitted; internal quotation marks omitted.) Id., 258. Rather, “[t]he requisite agreement or confederation may be inferred from proof of the separate acts of the individu-
In addition, “[t]he size of a defendant‘s role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends. Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation.” (Citations omitted; internal quotation marks omitted.) State v. Boykin, 27 Conn. App. 558, 565, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).
In State v. Taft, supra, 306 Conn. 749, our Supreme Court considered a claim of insufficient evidence to support a conviction of conspiracy to commit murder in factually similar circumstances to the present case. In Taft, a group of individuals chased after the victim. Two of the individuals, including the defendant, had guns. Someone in the pursuing group shouted, “[l]et‘s get this mother fucker,” and gunfire ensued. Id., 754. The Supreme Court held that sufficient evidence of a conspiracy is found if the coconspirators are armed aggressors who act in concert to pursue the victim. Id., 757–58. Specifically, the Supreme Court held that shouting “[l]et‘s get this mother fucker,” pursuing the victim while carrying weapons, and firing the weapons was sufficient evidence to establish the existence of an agreement to attack the victim. Id., 757. In addition, the court in Taft held that even if the defendant was not armed during the pursuit, the jury reasonably could have found that the defendant was aware that some of the pursuers were armed and would use their weapons in the pursuit, and, thus, the defendant‘s active participation was strong evidence of his agreement to the conspiracy. Id., 757–58. Therefore, the court concluded that “there was sufficient evidence to support the defendant‘s conviction for conspiracy to commit murder.” Id., 761.
In the present case, our review of the record in the light most favorable to sustaining the verdict discloses that sufficient evidence existed from which the jury could have found beyond a reasonable doubt that the defendant conspired to kill the victim. First, sufficient evidence existed from which the jury reasonably could have determined that there was an agreement among the defendant and his cohorts to kill the victim. The defendant arrived with five other individuals, at the same time, outside the home of the victim‘s aunt and
Moreover, upon seeing the victim, the group, armed with guns and knives, began to advance on, and subsequently to pursue, the victim. See State v. Taft, supra, 306 Conn. 757–58 (sufficient evidence of conspiracy found when coconspirators are armed aggressors who act in concert to pursue victim). Members of the group taunted the victim, stating “how does it feel to have a pistol in your face,” and that they were going to kill him. The latter statement describes precisely what the group attempted to do; they fired multiple shots in the direction of the victim, one of which hit and severely injured him. See State v. Young, 157 Conn. App. 544, 553, 117 A.3d 944 (arriving at scene together, firing weapons simultaneously, and fleeing scene together was sufficient evidence for jury to conclude beyond reasonable doubt that defendant and his cohort entered into agreement to commit assault in first degree), cert. denied, 317 Conn. 922, 118 A.3d 549 (2015). Accordingly, we conclude that a jury reasonably could have found that taunting the victim that they were going to kill him and advancing on the victim with weapons in hand indicated that the defendant and his cohorts agreed to kill the victim.
Furthermore, even if the defendant was not armed with a gun while he and his group pursued the victim, testimony reveals that the group‘s weapons, two of which were guns, were visible during the pursuit. The jury thus reasonably could have inferred that the defendant was aware that some of his cohorts were armed and intended to use their weapons. Aware of this information, the defendant actively participated in the pursuit, which is strong circumstantial evidence of the defendant‘s agreement with the others to engage in this pursuit with the purpose of killing the victim. See State v. Taft, supra, 306 Conn. 757–58. Therefore, the jury reasonably could have determined that the defendant and his cohorts entered into an agreement to kill the
The defendant‘s remaining argument focuses on the lack of sufficient evidence to demonstrate the defendant‘s specific intent to kill the victim.4 The words yelled by the group that they were going to kill the victim, coupled with their concerted activities, of which the defendant was aware and participated in, are sufficient evidence from which the defendant‘s intent may be inferred. Whether the defendant himself uttered these words is of no consequence, because these words were accompanied by the defendant and his cohorts’ active pursuit of the victim for some distance and their shooting in his direction. The jury reasonably could have inferred from the circumstantial evidence, if viewed together, that the defendant actively participated in the pursuit with the specific intent to kill the victim.
The defendant relies, however, on State v. Green, supra, 261 Conn. 653, to support his claim of insufficiency of the evidence. In Green, several members of a gang, armed with guns, approached four individuals, including the defendant, Charles Green, and Duane Clark. Id., 657–58. In response, Clark said, “shoot the motherfucker.” Id., 658. Shots were fired, and one of the gang members was fatally wounded. Id., 659. Green and Clark were tried together for murder and conspiracy to commit murder, and although Clark was found not guilty of both counts, Green was found guilty of both. Id., 659. Our Supreme Court found that the evidence was insufficient to prove that Green conspired to commit murder because of the inconsistent verdicts. Id., 669–71.
The present case is distinguishable from Green. In Green, the Supreme Court noted that the testimony offered at trial indicated that Green and his cohorts were accosted by a group of aggressors, Clark yelled to shoot, and, in response, some members of the group simultaneously reached for their guns and opened fire. Id., 658. In the present case, the entire group engaged in extended activity demonstrative of its being the aggressor with the collective intent to kill the victim. In addition, in Green, the alleged coconspirators were tried together, and one was found guilty while the other was not. Thus, the Supreme Court concluded that “the jury rejected the state‘s claim that [Green] had conspired with Clark to kill [the victim].”5 Id., 671. In the present case, the defendant was not tried together with any of his alleged coconspirators in a single trial and did not receive a factually or legally inconsistent verdict from another verdict rendered from the same jury.
The defendant also relies on State v. Pond, 315 Conn. 451, 108 A.3d 1083 (2015), to support his claim that his being found guilty of conspiracy to commit murder is inconsistent with his being found not guilty of the charges of criminal attempt to commit murder, assault in the first degree, and criminal possession of a firearm. His reliance is misplaced. In Pond, our Supreme Court
In the present case, the defendant‘s acquittal on the substantive charges does not undermine his conviction for conspiracy to commit murder. The crime of conspiracy to commit murder requires that the defendant agree to commit murder, perform an overt act in furtherance of committing murder, and hold the requisite intent to commit murder.
Viewing this evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the evidence established beyond a reasonable doubt that the defendant was guilty of conspiracy to commit murder. Therefore, the trial court properly denied the defendant‘s motion for a judgment of acquittal.
The judgment is affirmed.
In this opinion the other judges concurred.