STATE OF CONNECTICUT v. MICHAEL MARK
AC 38567
Appellate Court of Connecticut
January 17, 2017
Lavine, Beach and Keller, Js.*
Argued October 27, 2016
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(Appeal from Superior Court, judicial district of Waterbury, Cremins, J.)
Michele C. Lukban, assistant state‘s attorney, with whom, on the brief, were Maureen Platt, state‘s attor-ney, and Cynthia S. Serafini and Terence D. Mariani, senior assistant state‘s attorneys, for the appellant (state).
Alice Osedach, assistant public defender, for the appellee (defendant).
Opinion
LAVINE J. The state appeals from the judgment of the trial court1 setting aside the jury‘s verdict finding the defendant, Michael Mark, guilty of one count of tampering with evidence in violation of
A jury reasonably could have found the following facts. In the early morning of November 2, 2010, the victim, Arnaldo Gonzalez was walking to a polling station in the city of Waterbury, where he was scheduled to work as a Spanish interpreter. At approximately the same time and in the same vicinity, the defendant and his three friends, Manuel Vazquez (Tetan), Johnny Martinez, and Anthony Garcia, were driving to an “after hours” house where they could purchase alcohol after the liquor stores had closed. As they drove, the defendant and his friends saw the victim walking along the side of the
When the defendant and Martinez returned, the defendant was carrying the victim‘s backpack. The defendant stated that he thought that he had killed the victim because he kept hitting him with a rock. The four men then drove tо the home of Joan Ruiz, Tetan‘s sister. At the house, Garcia and Martinez went through the victim‘s backpack, finding needles, juice, a toy, and a Thermos. The defendant told Tetan that they had to return to the scene of the robbery to retrieve the rock that he had used to hit the victim because he did not want to leave any evidence of the murder weapon at the scene.
When the defendant and Tetan drove back to the scene, they picked up three of their friends, Vanеssa Vazquez, Vanessa Olivencia, and Sonja Hernandez, who wanted to buy liquor from the “after hours” house. During the drive, the defendant and Tetan discussed how they needed to “go back to a spot” to “get something.” When the defendant, Tetan, Vanessa Vazquez, and Hernandez arrived at the murder scene,3 the defendant exited the car and told them that he “had to find the brick.” No one in the car actually observed the defendant pick up the rock, but Vanessa Vazquez saw him bend down and then stand back up.
After the defendant exited the car, Tetan, Vanessa Vazquez, and Hernandez drove to the “after hours” house to purchase alcohol. There, they met Eliut Canales, Tetan‘s younger brother. Canales was “acting crazy” because he knew what had happened, and he left with Vanessa Vazquez and Hernandez, leaving Tetan in the car. A couple of minutes after Canales, Vanessa Vazquez, and Hernandez left, Tetan observed the defendant through his rear-view mirrоr coming toward his car. When the defendant returned to the car, the defendant told Tetan that he had “got[ten] rid of the rock.”
The victim‘s body was found on the sidewalk later that morning. When paramedics arrived at the scene, the victim was lying on the ground and bleeding from his head. Despite the fact that the victim suffered head trauma, the police were unable to locate the murder weapon at the scene.
The morning of the murder and throughout the next couple of days, the defendant admitted to a number of people—including Garcia, Tetan, Olivencia, Ruiz, and Canales—that he had murdered or thought that he had murdered the victim when he hit him with a rock. In addition, the defendant told Ruiz that he was afraid that “too many people knew about” the murder and was afraid “that somebody was going to talk.”
The defendant was charged with murder, felony murder, two counts of robbery in the first degree, and one count each of conspiracy to commit robbery in the first degree and tampering with evidence. After the defendant‘s case-in-chief, but before the jury returned its verdict, the defendant made a motion for judgment of acquittal as to all counts. The court denied the motion with regard to counts one through five but reserved its decision as to the sixth count, which alleged tampering with evidence. On May 5, 2014, the jury found the defendant guilty on all counts. On August 29, 2014, during sentencing, the court granted the defendant‘s motion for a judgment of acquittal as to the sixth count. The court imposed a total effеctive sentence of forty-eight
On September 2, 2014, the state, pursuant to
The state claims that the сourt abused its discretion when it granted the defendant‘s motion for judgment of acquittal after the jury found the defendant guilty of tampering with evidence. Specifically, the state argues that the jury reasonably could have found from the evidence adduced at trial that “the defendant successfully removed the rock that he had used to hit the victim in order to render [the] evidence unavailable” and that he did so because he “believed that it [was] probable that an official proсeeding would arise as a result of [the] police investigation.” The defendant argues that the state failed to prove beyond a reasonable doubt that the defendant tampered with evidence because “none of the state‘s witnesses actually saw what the defendant did when he got out of the car and did not see [him] with a rock.” The defendant also argues that while he probably believed that police would investigate the death of the victim, the defendant had no reason to believe that there would be an official proceeding brought against him because there was little evidence linking him to the crime.4 We agree with the state.
The following additional facts are relevant to this claim. A substitute information, filed by the state, provided: “Count Six: And the above said senior assistant state‘s attorney further accuses and charges that the said Michael Mark did commit the crime of Tampering with Evidence . . . and charges that, on or about November 2, 2010, in the early morning hours, at or near 424 Baldwin Street, in the City of Waterbury, Connecticut, the said Michael Mark, believing that an official proceeding was about to be instituted, destroyed, concealed and removed evidence with the purpose to impair its verity or availability in such proceeding, to wit: he disposed of a weapon used, to wit: the rock.”
During the defendant‘s argument in support of his motion for judgment of acquittal as to all counts, which took place after the defense rested but before the jury returned its verdict, he focused primarily on the charge of tampering with evidence. He argued that the state did not present sufficient evidence that the defendant believed
The jury returned a verdict of guilty on all counts. At sentencing, immediately before the court imposed its sentence, the prosecutor and defense counsel argued the defendant‘s pending motion for judgment of acquittal as to the tampering with evidence charge. The defendant argued that because none of the witnеsses actually observed him pick up an object, it was pure speculation that he tampered with any physical evidence at the scene. The state argued that there was sufficient evidence for the jury to find that the defendant returned to the scene and disposed of the rock because he was afraid of being caught by police. The court stated: “Based on the testimony that was presented, [the court] think[s] the testimony . . . would establish the elements of a consрiracy or an attempt to tamper with evidence, but [the court] [does not] find that there is adequate evidence [of] actual tampering.” The court then granted the defendant‘s motion for judgment of acquittal with respect to the tampering with evidence charge.
On appeal, the state argues that it “provided ample evidence from which the jury concluded, beyond a reasonable doubt,” that the defendant tampered with evidence. It argues that it presented sufficient evidence to show that “the defendant successfully destroyed, concealed and removed the rock he had used to kill the victim,” including evidence that he expressly stated to witnesses that he wanted to return to the scene to dispose of the rock, his statement to Tetan that he successfully removed the rock, and the fact that police found no evidence of a murder weapon at the scene even though the victim suffered head trauma. In response to the defendant‘s argument that the state failed to prove that the defendant believed that an official proceeding would be instituted, the state argues that because “direct evidence of a defendant‘s state of mind is rarely available,” it was reasonable for the jury to rely on circumstantial evidence to conclude that “the defendant believed that an official proceeding was probable . . . .” Such circumstantial evidence included the numerous witnesses who “connect[ed] him to the crime,” his confessions to witnesses that he committed the murder with a rock, and his statement to Ruiz that he was afraid that too many people knew what happened and that someone was going to talk to the police.
“[T]he court has an inherent power to set verdicts aside.” State v. Avcollie, 178 Conn. 450, 456, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). There are three situations in which a court can grant a motion for judgment of acquittal. “First, the verdict may be overturned if the manifest injustice is so plain and palpable as to justify a suspicion that the verdict was prоduced by improper influences in passing
In the present case, the court determined that the state failed to prove, beyond a reasonable doubt, that the defendant tampered with evidence. “In reviewing а 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, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant‘s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier‘s] factual inferences that support a guilty verdict need only be reasonable. . . .
“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier‘s] verdict of guilty.” (Internal quotation marks omitted.) State v. Bradley, 124 Conn. App. 197, 201–202, 4 A.3d 347 (2010), cert. denied, 295 Conn. 917, 990 A.2d 867 (2010), cert. denied, 565 U.S. 1039, 132 S. Ct. 584, 181 L. Ed. 2d 429 (2011).
“The trial court should not set a verdict aside where there was some evidence upon which the jury could reasonably have based its verdict . . . .” (Internal quotation marks omitted.) State v. Griffin, 253 Conn. 195, 200, 749 A.2d 1192 (2000). A jury can rely on bоth circumstantial and direct evidence when making its verdict. “There is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Cari, 163 Conn. 174, 179, 303 A.2d 7 (1972). “Because direct evidence of the accused‘s state of mind is rarely available . . . intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Otto, 305 Conn. 51, 66, 43 A.3d 629 (2012).
We conclude that a reasonable view of the evidence supports the jury‘s verdict that the defendant is guilty of tampering with evidence. The state presented sufficient direct and circumstantial evidence to support the finding that the defendant went back to the scene of the murder to hide or destroy the rock he used to murder the victim because he was afraid that an official proceeding would be brought and that he did dispose of the rock.
First, the state provided sufficient circumstantial evidence that the defendant believed that an official proceeding would probably arise from the murder. Tetan testified that the defendant told him that he needed to return to the scene of the murder to retrieve the rock because he did not want to leave evidence of the murder weapon at the scene. A number of witnesses testified at trial that the defendant said that he had murdered or that he thought that he had murdered the victim with a rock, which supports the inference that the defendant knew that there was a strong possibility that witnesses could testify in an official proceeding. See State v. Guerrera, 167 Conn. App. 74, 105, 142 A.3d 447 (jury reasonably could have inferred that defendant was aware that criminal prosecution was probable in part because of number of witnesses who saw defendant with victim), cert. granted on other grounds, 323 Conn. 922, A.3d (2016). Ruiz testified, moreover, that the defendant told her, after the defendant disposed of the rock, that he was afraid that tоo many people were aware that he committed the murder and that he was afraid that they would talk, presumably to law enforcement. Finally, the defendant knew that the victim‘s body was lying on the sidewalk in public view; surely the defendant was aware that an investigation and official proceeding probably would ensue when someone found the victim‘s body. See id. (defendant‘s firsthand knowledge of murder and assault, in part, supported reasonable inference that defendant was аware that criminal prosecution was probable). Thus, a jury certainly could conclude
Second, the state presented sufficient evidence for a jury reasonably to conclude that the defendant did in fact conceal or destroy the murder weapon. The defendant told Tetan that he needed to return to the scene to dispose of the rock. On their way, Vanessa Vazquez testifiеd that she heard the defendant and Tetan discuss how they needed to “go back to the spot” to “get something.” When they arrived at the scene, Hernandez testified that she heard the defendant say that he “had to find the brick.” Vanessa Vazquez also testified that although she did not see him pick up the rock, she saw him bend over and then stand back up at the murder scene. Finally, Tetan testified that when the defendant returned to the car, he told Tetan that he had disposed of the rock. Thus, a jury reasonably could have concluded that the defendant destroyed or concealed the rock.
The defendant argues that the state did not prove this element because no one testified that they observed the defendant destroy or conceal the rock. Circumstantial evidence, however, can be given the same amount of probative weight as direct evidence; State v. Cari, supra, 163 Conn. 179; and in the present case, the state presented sufficient circumstantial and direct evidence for a jury rationally to infer that the defendant destroyed or concealed the rock.
Third, the state presented sufficient evidence that the defendant destroyed the rock with the intent to impede law enforcement‘s investigation in order to prevent an official proceeding from arising. Tetan testified that the defendant was “nervous” because he expressly told Tetan that he needed to go back to the scene to hide the rock beсause he did not want it to be used as evidence. In fact, the defendant‘s efforts to dispose of the rock did impede law enforcement‘s investigation, as evidenced by the fact that police were unable to locate the murder weapon at the scene. Because the defendant believed that he could impede law enforcement‘s investigation, it can be inferred that he also wanted to impede an official investigation. State v. Jordan, supra, 314 Conn. 380. Thus, a jury reasonably could conclude that the state provided sufficient evidence to prove that the defendant had disposed of the rock in order to impede an official proceeding. Accordingly, the trial court improperly granted the defendant‘s motion for judgment of acquittal.
The judgment of acquittal with respect to count six of the information is reversed and the case is remanded with direction to reinstate the jury‘s verdict of guilty and to render judgment in accordance with the verdict and for resentencing according to law.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of the date of oral argument.