220 Conn. 765 | Conn. | 1992
The defendant, Trevor Pinnock, raises two issues concerning the sufficiency of the evidence to convict him and raises several other issues arising from the trial court’s rulings throughout the course of his criminal trial. The defendant was charged with conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and attempted murder in violation of General Statutes §§ 53a-49
The defendant claims that: (1) there was insufficient evidence to convict him of either conspiracy to commit murder or attempt to commit murder; (2) the trial
I
The defendant first claims that there was insufficient evidence to convict him of either conspiracy to commit murder or attempt to commit murder. Regarding the conspiracy count, he claims that the state failed to prove beyond a reasonable doubt that the defendant intended to agree with Lewis to cause the death of Pink or that he intended to cause the death of Pink. Regarding the attempt count, the defendant claims that there was insufficient evidence to demonstrate that he intended to cause the death of Pascoe. We conclude that the evidence was sufficient to support the jury’s verdict on both counts.
“The standard of review of an insufficiency claim is clear. ‘We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215
A
The defendant was charged in one count with the offense of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. “To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators.” (Internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). To prove the offense of conspiracy to commit murder, the state must prove two distinct elements of intent: that the conspirators intended to agree; and that they intended to cause the death of another person. Id., 4. To convict the defendant of the offense as charged in this case, the jury, therefore, necessarily had to find that: (1) the defendant and Lewis
There was sufficient evidence to allow the jury to conclude that the state proved beyond a reasonable doubt that the defendant and Lewis conspired to kill Pink. From the actions of the defendant and Lewis close to the time of Pink’s death, the jury could have concluded beyond a reasonable doubt that the two agreed to and intended to kill Pink, and that Pink was killed in furtherance of that agreement. The defendant and Lewis were together immediately prior to the killing of Pink. They played soccer together, left the game early together and walked to Lewis’ car together. The jury could reasonably have inferred that the two men, who were wearing sweatsuits, were not carrying handguns while they played soccer, and that they obtained guns together from Lewis’ car. Moments after securing the guns, the two men parted. The defendant approached Pascoe and Lewis killed Pink. The murder and the incident involving the defendant and Pascoe occurred only seconds apart and within approximately three car lengths of one another on the same street in the city of New Haven. The defendant and Lewis were friends and the two victims were close friends. Further, after their individual criminal actions, the defendant and Lewis ran from the scene together, and one year after
The defendant also asserts that the state’s failure to prove any motive in this case necessarily clouded the issue of the defendant’s guilt with a reasonable doubt, requiring a judgment of acquittal. While motive is not an element of a crime that the state has the burden of proving, the presence of evidence of motive may strengthen the state’s case. State v. Ruffin, 206 Conn. 678, 681, 539 A.2d 144 (1988). It is conceivable that the evidence adduced in a particular case would be so inconclusive that without evidence of motive a judgment of acquittal might be required because the jury could not rationally find that the state had proved the elements of the charged offense beyond a reasonable doubt. In such a case, a judgment of acquittal might be required not because motive was an element of the offense, but because evidence of motive would strengthen the state’s otherwise insufficient evidence of an element of the offense, such as identification or intent.
There is, however, only a very limited category of cases in which a lack of proof of motive would mandate a judgment of acquittal. The instant case is not
B
The defendant next asserts that there was insufficient evidence to prove him guilty of attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49. We disagree.
The charge of attempt to commit murder arises from the incident in which he approached Pascoe while Pascoe was seated in his car and pointed an automatic handgun at him. While aiming the gun at Pascoe, the defendant told Pascoe, “You’re dead.” At that time, Pascoe heard the gun make two clicking sounds next to his ear, but the weapon did not discharge. Pascoe immediately drove his car, which had been idling, away from the defendant. As he began to drive away, he heard the shots from Lewis’ gun that resulted in Pink’s death.
“Under General Statutes § 53a-49 (a) (2), ‘[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.’ . . . State v. Green, 194 Conn. 258, 272, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).
On the basis of the evidence adduced at trial, the jury could reasonably have found that the defendant intended to kill Pascoe and that his actions constituted a substantial step toward achieving that objective. From the evidence, the jury could reasonably have inferred that the defendant and Lewis agreed to kill Pink. See Part 1A of this opinion. It was also reasonable for the jury to infer that the defendant had the intent to murder Pink on the same street and at the same time that he approached Pascoe with a gun. Accordingly, in determining the defendant’s guilt under the attempt count, the jury could properly have viewed the defendant’s actions concerning Pascoe in light of the fact that he had agreed to kill Pink, and that Pink was, in fact, killed. The defendant’s actions that are alleged to constitute the attempt occurred in the short period between the time that Lewis and the defendant secured handguns from Lewis’ car and the time that Lewis shot Pink. In that time, the defendant approached Pascoe and threatened him with death. From all the circumstances, the jury could reasonably have determined that the clicking sound made by the gun near Pascoe’s ear was caused by the defendant’s attempt to fire the gun or to prepare the gun to fire. While the testimony at trial indicated that there were other conceivable explanations for why the gun clicked, some consistent with an attempt on Pascoe’s life and
II
Next, the defendant claims that in two distinct ways he was deprived of his right under the sixth and fourteenth amendments to the federal constitution to confront his accusers.
Prior to Pascoe’s cross-examination, there was a colloquy among the court and counsel concerning the extent to which Pascoe’s prior record would be admissible before the jury. At that time, the defendant asserted that he was entitled to elicit the fact that Pascoe had previously pleaded guilty to conspiracy to commit murder.
On appeal, the defendant claims that the court should not have limited his examination of Pascoe to eliciting his conviction of an unnamed felony, and that he should have been permitted to elicit the fact that Pascoe was convicted of conspiracy to commit murder. He asserts that the customary inquiry when prior convictions are
In order to prevail on appeal on a constitutional claim, that has not been adequately preserved at trial, the defendant must meet all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40. We have also held that we “remain free to dispose of the claim ‘by focusing on whichever condition is most relevant in the particular circumstances.’ ” State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990), quoting State v. Golding, supra, 240.
Because the defendant has failed to demonstrate a constitutional violation that deprived him of a fair trial, he has failed to satisfy the third prong of the test set forth in State v. Golding, supra. Although cross-examination is the most effective means of confronting witnesses, not all limitations of that right are of constitutional dimension. State v. Lewis, supra, 622. “The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from
Further, we cannot agree that the trial court acted improperly in ruling on the defendant’s preserved claim of nonconstitutional error. As a general proposition, prior convictions of a defendant are not admissible to impeach his veracity. State v. Crumpton, 202 Conn. 224, 228, 520 A.2d 226 (1987); State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). We have recognized exceptions to this general rule. “If a defendant in a criminal case has previously been convicted of crimes punishable by imprisonment for more than one year, a trial court may allow the state to introduce those convictions at a trial on subsequent charges as evidence related to the defendant’s credibility, where credibility is in issue.” State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). Before admitting such evidence, however, the trial court should weigh the following factors: “ ‘(1) the extent of the prejudice likely to arise;
When a trial court concludes that the fact of a prior felony conviction is admissible to impeach a witness’ veracity, generally both the title of the offense and the date of the conviction should be admitted before the jury. State v. Geyer, supra, 8; see State v. English, 132 Conn. 573, 580, 46 A.2d 121 (1946). We have held, however, that when the conviction at issue is not for an offense that reflects directly on the veracity of the person convicted of it, “the balance used to measure admissibility of prior convictions is weighted less heavily toward admitting the prior conviction . . . .” State v. Geyer, supra, 13. This is because criminal convictions “blemish the character of one so convicted,” and “[a] juror might reasonably conclude that such a witness lacks to some degree the moral rectitude from which a witness’s oath of honesty derives credibility.” Id., 12-13. To avoid unwarranted prejudice to the witness, when a party seeks to introduce evidence of a felony that does not directly bear on veracity, a trial court ordinarily should permit reference only to an unspecified crime carrying a penalty of greater than one year that occurred at a certain time and place. Id., 16.
The defendant asserts that because the conviction in this case was that of a state’s witness, and not the criminal defendant, the trial court should not have balanced the probative value of the title of the offense against its potential prejudice to the witness. While we recognized in State v. Binet, 192 Conn. 618, 623, 473 A.2d
In our view, in a determination of the admissibility of the details of a witness’ felony convictions the trial court’s analysis should not depend solely on whether the witness is a defendant. The raison d’etre for allowing a prior conviction into evidence to impeach a witness’ veracity is that the conviction has some logical bearing on the witness’ truthfulness. Where the name of a prior conviction is not probative of truthfulness, and may entice the trier of fact to view the witness negatively because of the prior bad act, the trial court has discretion to conclude that it should not be admitted. This view is reflected in the federal courts by a recent change in rule 609 (a) (1) of the Federal Rules of Criminal Procedure. Formerly, rule 609 (a) (1) was construed to allow the introduction of evidence of a conviction of a crime punishable by death or imprisonment for a period in excess of one year to attack the credibility of a witness. Only if the witness was the defendant was the trial court allowed to weigh its prejudicial effect against its probative value. Green v. Bock Laundry Machine Co., 490 U.S. 504, 109 S. Ct. 1981, 104 L. Ed. 2d 557 (1989). In 1990, that rule was amended to allow the trial court to weigh the prejudicial effect of the evidence against its probative value, and to exercise its discretion, regardless of whether the witness was simply a witness or a criminal defendant.
In this case, the trial court acted within its discretion in excluding the title of the offense of which Pas
We are not persuaded by the defendant’s contention, moreover, that conspiracy is a crime of “calculation and planning,” which bears on veracity and distinguishes it from other purely violent crimes and for that reason its title should have been admitted. While the offense of conspiracy is clearly distinct from the underlying offense, it is not especially illuminating on the issue of a conspirator’s veracity. Unlike larceny crimes, which we have held do bear directly on the honesty of the offender; State v. Carter, 189 Conn. 631, 643, 458 A.2d 379 (1983); conspiracy crimes do not reflect on veracity to any greater degree than does the underlying offense. We have stated that “[a] conviction for a violéntenme . . . has no direct, bearing upon veracity . . . .’’Id., 644. For that reason, evidence of violent crimes introduced to impeach the veracity of a witness should, within the discretion of the trial court, be admitted as unspecified crimes carrying a penalty of more than one year. State v. Geyer, supra, 16. An agreement to commit a violent offense such as murder does not suggest that the offender is any less honest or trustworthy than the murderer who, alone, plots the commission of the offense. Calculation and planning are not synonymous with dishonesty. The trial court could properly have found, in its judgment, that the prejudicial effect of the evidence outweighed its proba
B
Relying on his sixth and fourteenth amendment right to confront his accusers, the defendant claims also that he should have been allowed to question Pascoe directly before the jury about whether Pascoe’s testimony in the instant case was related to a prior plea bargain agreement entered into by Pascoe and the state. We find no harmful error.
Out of the presence of the jury, it was revealed that Pascoe’s conviction of the conspiracy to commit murder charge was obtained as a result of a plea agreement with the state. As a result of the plea bargain, Pascoe received a lesser sentence in return for his agreement to testify truthfully in an unrelated case. While conspiracy to commit murder carries a potential punishment of twenty years in prison, Pascoe bargained for and received a sentence of five years, which was suspended after two years. The state asserted that to its knowledge, there was no connection between the plea agreement and the instant case, and for that reason the details of that agreement should not be inquired into before the jury. While the jury was still out of the courtroom, both the trial court and the state questioned Pascoe concerning any connection between his plea agreement and his testimony in the instant case. Pascoe stated that he had agreed to testify truthfully in another case in return for the lesser sentence, but denied that there was any such agreement in connection with the instant case. The defendant asserted that neither he nor the jury should be required to accept the representations of the state and Pascoe, and that he
Upon the return of the jury, Pascoe was thoroughly cross-examined regarding his potential bias in favor of the state. The defendant elicited the fact that Pascoe had been convicted of a felony in Connecticut in December, 1989, and that his conviction resulted from a plea agreement between the state and Pascoe. Further, Pascoe admitted that he had received only a five year sentence, which was suspended after two years, despite the fact that he was subject to a maximum sentence of twenty years. He also admitted that he was released from prison only one month after he was convicted. Pascoe agreed that he had gotten a “very good deal” from the state. The defendant further elicited the fact that Pascoe was on probation at the time of his testimony in the instant case, and that he was in the custody of the state at the time that he made three separate identifications of the defendant.
Initially, the defendant again concedes that his constitutional claims were not preserved at trial, and requests that we review his claims under the doctrines of State v. Evans, supra, and State v. Golding, supra. Because we find that the trial court permitted sufficient cross-examination on the issue of Pascoe’s bias, we conclude that there was no constitutional violation and that the defendant has not satisfied the third prong of the test set forth by State v. Golding, supra.
Reviewing the defendant’s remaining claim as evidentiary error, however, we conclude that the trial court’s ruling was improper. A defendant is allowed to cross-examine the state’s witnesses to the extent that his questions are relevant to the issues raised in the case, and are not more prejudicial than they are probative. Here, the defendant’s question, namely, whether Pascoe had made a deal with the state, was relevant to Pascoe’s potential bias in favor of the state. Although, out of the jury’s presence, Pascoe denied any connection between the two cases, the final determination as to whether he was being truthful was one for the jury to make. The trial court’s ruling that the evidence was irrelevant was apparently based on the court’s favorable view of Pascoe’s credibility and on
Having determined that the trial court acted improperly, we must determine whether the ruling was harmful. We conclude that it was not. “Because the defendant’s claim does not involve the violation of a constitutional right, the burden rests upon him to demonstrate the harmfulness of the court’s error.” State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980); Chapman v. California, 386 U.S. 18, 24, 26, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). To demonstrate harmfulness, the defendant must show that it is more probable than not that the court’s action affected the result of his trial. State v. Payne, 219 Conn. 93, 102-103, 591 A.2d 1246 (1991); State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988); State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). Although concededly Pascoe was a critical state’s witness, the defendant was allowed to cross-examine him thoroughly. Thereby the jury was made aware that Pascoe had received a very favorable plea bargain because he had agreed to tes
Ill
The defendant also claims that he is entitled to a new trial because the jury failed to follow the instructions of the trial court. We do not agree.
The trial court instructed the jury that “[t]he presumption of innocence . . . requires that if a piece of evidence is capable of two reasonable interpretations, one of which is consistent with innocence, you must adopt the interpretation consistent with innocence.” That instruction is not an accurate statement of the law.
We conclude that the jury’s failure to follow one unduly favorable instruction cannot constitute harmful error. Clearly, the defendant would not have been entitled to the instruction had he requested that it be given. Similarly, he cannot demonstrate any harmful error by the jury’s failure to follow the improper instruction. Although it appears that the defendant also claims that the jury did not follow other, accurate, instructions, he has not provided us with a sufficient basis to draw that conclusion. To the extent that State v. Tinsley, supra, is inconsistent with this opinion, we overrule it.
IV
The defendant next asserts that he is entitled to a new trial because the trial court failed to instruct the jury on motive as the defendant requested. He claims that the instruction given to the jury regarding motive was “unbalanced and unfair.” We find no harmful error.
At the close of evidence, the defendant submitted a written request to charge that asked the court to inform
“ ‘A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.’ State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). ‘The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration,
We have stated that the “ ‘presence or absence of motive ... is a circumstance to be weighed with other evidence for the jury to consider. . . .’ ” (Emphasis added.) State v. Ruffin, 206 Conn. 678, 681, 539 A.2d 144 (1988); State v. Annunziato, 169 Conn. 517, 530, 363 A.2d 1011 (1975). An instruction on motive and lack of motive is sometimes required because “[e]vidence tending to show the existence or nonexistence of motive often forms an important factor in the inquiry as to the guilt or innocence of the defendant. State v. Rathbun, 74 Conn. 524, 529, 51 A. 540 (1902).” State v. Harris, 182 Conn. 220, 224, 438 A.2d 38 (1980). “The role motive plays in any particular case necessarily varies with the strength of the other evidence in the case. ‘The other evidence may be such as to justify a conviction without any motive being shown. It may be so weak that without a disclosed motive the guilt of the accused would be clouded by a reasonable doubt.’ State v. Rathbun, supra, 529-30.” Id. Therefore, if the evidence warrants it and if an accurate and timely request to charge is made, the trial court must instruct the jury that a lack of evidence on motive may tend to raise a reasonable doubt.
In State v. Annunziato, supra, 529, the defendant claimed that the trial court improperly failed to instruct the jury that an absence of evidence of motive “ ‘may well tend to raise a reasonable doubt as to the guilt of the defendant.’ ” We stated that the instruction was inaccurate because “even a total lack of evidence on motive would not necessarily tend to raise a reason
In this case, the evidence warranted an instruction concerning the possible tendency of an absence of evidence of motive to raise a reasonable doubt, and the defendant made a timely request to charge. The state adduced no evidence of the defendant’s motive to kill either Pascoe or Pink.
Although the trial court failed to deliver a proper charge on motive, the defendant is not entitled to a new trial unless the deficiency in the charge was harmful. We conclude that it was not. Because the deficiency in the court’s instruction is not constitutional, the defendant has the burden of demonstrating the harmfulness of the court’s error. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1987); State v. Cooper, 182 Conn. 207, 212, 438 A.2d 418 (1980). To demonstrate harmfulness, the defendant must demonstrate that it is more probable than not that the court’s action affected the result of his trial. State v. Payne, 219 Conn. 93, 103, 591 A.2d 1246 (1991); State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988); State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).
Y
Finally, the defendant claims that he was deprived of his right to due process and his “right to a fair trial
The defendant does not claim that the charge given in this case is distinguishable from that in cases in which
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-48 provides: “CONSPIRACY. RENUNCIATION, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
“(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
General Statutes § 53a-54a provides: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the
“(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
“(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”
General Statutes § 53a-49 provides: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
“(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
“(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
In a separate trial, Lewis was convicted of murder and conspiracy to commit murder for his involvement in the described events. Lewis appealed, and we affirmed his convictions in State v. Lewis, 220 Conn. 602, 600 A.2d 1330 (1991).
The defendant also makes reference to the constitution of the state of Connecticut, but provides no independent analysis under its provisions. Accordingly, we do not review his state constitutional claims. State v. McMurray, 217 Conn. 243, 256 n.13, 585 A.2d 677 (1991).
At trial, counsel, the court and Pascoe all referred to the offense to which Pascoe had previously pleaded guilty as conspiracy to commit murder. At trial in State v. Lewis, 220 Conn. 602, 600 A.2d 1330 (1991), however, the offense was referred to as conspiracy to commit assault in the second degree. The judgment file of the New Haven Superior Court reflects that Pascoe actually pleaded guilty under the Alford doctrine to conspiracy to commit assault in the second degree. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
The defendant stated that he wanted to ask Pascoe, “Was your testimony in this case a requirement or part of the agreement that resulted in the recommended sentence which you received in the case you were convicted for in Connecticut?”
The assistant state’s attorney informed the court that he had been informed by his office that the plea agreement entered into by the state and Pascoe in the prior case was not related to the instant case, and to his knowledge there was no connection.
Both the state and the defendant concede that the court’s instruction was improper and unduly favorable to the defendant. With respect to individual pieces of evidence, when the evidence is subject to two possible interpretations, the jury is not required to accept the interpretation consistent with innocence, but is allowed to choose the interpretation that it finds reasonable and logical. State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991).
We have consistently held that a defendant cannot prevail on a claim that he has suffered harmful error as a result of an improper instruction to the jury if that instruction was unduly favorable to him. State v. Snook, 210 Conn. 244, 275, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Cochran, 191 Conn. 180, 187-88, 463 A.2d 618 (1983); State v. Hawthorne, 175 Conn. 569, 574, 402 A.2d 759 (1978).
The request stated: “A. It is not necessary for the state to prove what reason the defendant had for committing the crimes charged; what motivated him to do it. Recognizing the fact that crimes are generally committed for some motive, evidence of a motive is admissible to prove the guilt of the defendant if it appears that he has a motive.
“B. In that same manner in any case in which there appears no motive on the part of the defendant that fact tends to raise a reasonable doubt as to the guilt of the defendant.
“C. You should endeavor to determine whether it can be reasonably inferred that the defendant had any motive to commit the crimes alleged. If no motive can be inferred or found that may well tend to raise a reasonable doubt as to the guilt of the defendant.
“Authority: Wright, Connecticut jury instructions, Vol II § 661d; Borden & Orland, [Conn. Practice, Criminal Jury Instructions,] § 7. IF; State v. Rathbun, 74 Conn. 524, 51 A. 540 (1902).
“Source: All testimony.” (Emphasis added.)
The trial court instructed: “Motive is not an element, is never an element of a crime and the state is not required to prove or to show that the defendant had a motive to commit the crime charged in the particular case.”
The state conceded this point to the jury in its closing argument: “You don’t know and I don’t know why these people had [the desire to kill Pink and Pascoe] .... We don’t know what the motive was for David Lewis shooting Fitzroy Pink, for Trevor Pinnock trying to shoot Kenneth Pascoe.”
The court instructed the jury that “reasonable doubt means a doubt founded upon reason or common sense. As the word implies, it is a doubt held by a reasonable person after all the evidence in the case is carefully analyzed, compared and weighed. A reasonable doubt may arise not only from the evidence produced but also from the lack of evidence. Since the burden is upon the state to prove the defendant guilty beyond a reasonable doubt of every essential element of the crime charged, the defendant has the right to rely upon a failure of the prosecution to establish such proof. Reasonable doubt is the kind of a doubt upon which reasonable people like yourself in the more serious and important affairs in your own lives would hesitate to act. On the other hand, if all the evidence has been impartially and thoroughly reviewed by you, and it produced in your mind a settled and abiding belief that you would be willing to act upon in matters of the highest importance related to your own affairs, then in that event you would be free from a reasonable doubt and should declare the defendant to be guilty.” (Emphasis added.)
The court instructed as follows: “As far as advice, there’s an instruction appropriate for this situation described by your note as far as the disagreement on the attempt to commit murder charge. I will read it to you. It is one page so I will read it twice. It is entitled instructions when the jury fails to agree. Although the verdict to which each juror agrees must of course be his or her own conclusion and not a mere acquiescence in the conclusion of the others in order to bring minds to a unanimous result you should in conferring together pay proper respect to each other’s opinions and listen with candor to each other’s arguments. It is more or less common sense like everything else. If much the larger number of the panel are for a particular verdict a dissenter should consider why his or her own conclusion is one which makes no impression upon the minds of the others who are equally honest and intelligent and who have heard the same evidence with equal desire to arrive at the truth and under the sanction of the same oath. The minority ought seriously to ask themselves whether they may not reasonably doubt the conclusion of the judgment which is not concurred in by most of those with whom they are associated and the weight or sufficiency of that evidence which fails to carry in the minds of their fellows. I am going to ask you to go back to the jury room and discuss this case further.
“I will read that in its entirety again. Let me see if I can do better on that last sentence. It is kind of cumbersome. Although the verdict to which each juror agrees must of course be his or her own conclusion and not a mere acquiescence in the conclusion of the others, in order to bring minds to a unanimous result you should in conferring together pay proper respect to each other’s opinions and listen with candor to each other’s arguments.
In State v. Ryerson, 201 Conn. 333, 514 A.2d 337 (1986), the “Chip Smith” charge delivered to the jury was similar to the one given in this case.