212 Conn. 593 | Conn. | 1989
The defendant, William Smith, was charged with murder in violation of General Statutes § 53a-54a (a)
The jury could reasonably have found the following facts. At approximately 7:30 p.m. on February 21, 1986, the defendant met Wendy Kelleher at the corner of Main Street and Fairfield Avenue in Bridgeport. The purpose of their prearranged meeting was to drive in Kelleher’s car to the P.T. Barnum housing project in Bridgeport to make a drug purchase. After one failed attempt at finding someone from whom to purchase drugs, the defendant directed Kelleher to drive to a side street and park the car in the middle of the block. He left the car and returned with a man who was later identified as Frank Wright. Pursuant to Wright’s directions, the three drove to another Bridgeport location presumably to make a drug purchase, although none was made.
They then drove to Golden Hill Street where the defendant got out of the car and went into an apartment that was occupied by Ann Duguay and Harold Hill. The defendant had spent the previous night in the apartment and prior to that had occupied an apartment on Milne Street with Duguay and Hill. The defendant appeared upset and expressed to both Duguay and Hill that he was angry at a man named Joseph Fiore. He
Once back in Kelleher’s car, the defendant directed her to drive to Milne Street and told her to park near a particular alley so that he could walk through the alley to get to the Hilltop Hotel where Fiore was living. Kelleher believed that the defendant wanted to see Fiore about some stolen money or stolen checks. Both Wright and the defendant went into the dark alley. The defendant walked through the alley and then walked alone toward the hotel. Fiore was not home, so the defendant spoke with Anthony Novicky, Fiore’s roommate, who told the defendant to come back later in the evening. The defendant, still alone, retraced his steps from the hotel to the alley entrance. He then emerged from the opposite end of the alley with Wright at his side. When the defendant got back in the car, he kept repeating the words “fucking Fiore” in an angry tone.
The three then went back to the P.T. Bamum housing project to buy drugs. After making the purchase, they ingested the drugs at an apartment that Wright was sharing with Deborah Hendricks. A short time thereafter, the defendant directed Kelleher to drive back to Milne Street and park in the same location in which she previously had parked. Wright and the defendant left the car and entered the dark alley. As the defendant had done previously, he walked through the alley and then toward the Hilltop Hotel. This time Fiore was home and had a conversation with the defendant, which was overheard by Novicky, about where he and the defendant might go to buy cocaine and heroin. They then left the hotel together.
Later that night, an area resident discovered the dead body of Fiore in the alley. The cause of death was trauma to the head caused by no fewer than four blows of extensive force with a blunt instrument.
The next day, February 22, 1986, the defendant appeared at the apartment of Duguay and Hill. He changed his clothes and put the clothes he had been wearing into a bag that he had taken with him when he left. The defendant told Hill he had “gotten” Fiore and had left his body behind the building where Hill, Duguay and the defendant previously had lived. The defendant returned the crowbar and paring knife, saying he had not used them to kill Fiore.
On March 26, 1986, a pipe was recovered from the Pequonnock River at the Stratford Avenue Bridge in Bridgeport. Kelleher testified that it looked like the pipe that Wright had thrown from the bridge. Hendricks identified it as a pipe that had been in her apartment prior to the night of February 21, 1986. Dr. Arkady Katsnelson, an associate medical examiner, testified at trial that a pipe is a blunt instrument and could have been the weapon used to kill Fiore.
The defendant first claims that the trial court erred in charging the jury under General Statutes § 53a-8,
Under § 53a-8, a person may be prosecuted and punished as if he were a principal offender when, “acting with the mental state required for commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense . . . .’’Therefore, as we have stated in the past, “[t]he terms [accessory and principal] 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).” State v. Kemp, 199 Conn. 473, 480 n.4, 507 A.2d 1387 (1986).
“ ‘Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient
“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985),
The jury was justified in finding that the defendant and Wright were both in the alley when the victim was killed. Both the defendant and Wright had left Kelle-her’s car and walked into the alley near which the defendant had specifically directed Kelleher to park. The defendant then went alone to Fiore’s apartment. When Fiore entered the alley, under the impression that he and the defendant were walking to a car in which they would travel to make a drug purchase, he was hit repeatedly with a blunt instrument. Wright and the defendant then emerged from the alley. The defendant’s pants were smeared with blood and he was carrying a pipe that had come from the apartment where Wright was staying. Before getting back into the car, the defendant handed the pipe to Wright, who wiped it in the snow. One of the men commented that the victim was dead.
From this evidence, taken in the light most favorable to sustaining the verdict, we cannot say as a matter of law that the jury as the trier of fact could not reasonably have concluded that Wright struck the blows that killed the victim while the defendant acted as an accessory. “ Tt is within the province of the trier of fact to draw reasonable and logical inferences from the facts proven, but it may not resort to speculation and conjecture. State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982); State v. Tucker, 181 Conn. 406, 418, 435 A.2d 986 (1980). Any inferences drawn must be rational and founded upon the evidence. State v. Clemons, 168 Conn. 395, 401, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975). The jury may base an inference on facts it finds as the result of other inferences. State v. Gabriel, [192 Conn. 405, 425, 473 A.2d 300 (1984)]; State v. McGinnis, 158 Conn. 124, 130, 256 A.2d 241 (1969) ....’” State
The defendant relies on the testimony of Hill to contradict these inferences arguing that the defendant’s statement to Hill is direct evidence tending to prove only principal liability. Hill testified that the day following the murder, the defendant told him that he had “gotten Fiore” and had left him behind the building where Hill, Duguay and the defendant had previously lived. We disagree with the defendant that this evidence prohibits the jury from inferring that the defendant acted as an accessory. In light of the evidence previously set forth, it was reasonable for the jury to infer that the defendant’s statement to Hill was an announcement of the crime in which he had been involved, but not an announcement of the precise role that he had played in that crime. Ample evidence was before the jury to support a finding that the defendant acted in the role of an accessory in the murder of Fiore. Accordingly, we do not find error in the trial court’s instruction to the jury that it could find the defendant guilty of murder on an accessory theory of liability.
The defendant argues further, however, that the trial court gave instructions upon statutory alternatives within General Statutes § 53a-8 that were not supported by the evidence. The trial court instructed the
The defendant did not except to the court’s instruction based upon this specific argument. However, “[t]his court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial. See, e.g., State v. Hill, [201 Conn. 505, 512-13, 518 A.2d 388 (1986)]; State v. Zayas, 195 Conn. 611, 616, 490 A.2d 68 (1985); State v. Smith, [194 Conn. 213, 217, 479 A.2d 814 (1984)].” State v. Williams, supra, 363.
We incorporate our previous discussion regarding appellate review of sufficiency claims in rejecting the defendant’s argument. Reviewing the evidence in the light most favorable to sustaining the verdict, we note that the following evidence was presented to the jury. The defendant specifically directed Kelleher to the location where they picked up Wright. The defendant then obtained possible murder weapons before going to the victim’s apartment. Subsequently, the scenario discussed previously was set up when the defendant went to Fiore’s apartment. We conclude that this evidence sufficiently supports the inference that both the defendant and Wright were involved in the murder of Fiore. The precise characterization, under the language of § 53a-8, of the defendant’s particular actions was within the province of the jury as the trier of fact.
Likewise, “[w]here there is sufficient evidence to support a reasonable inference that the defendant intended
II
The defendant next claims that the trial court erred in failing to instruct the jury specifically that it had to agree unanimously on the factual predicate for his conviction on the murder count. The trial court charged the jury that it could find the defendant guilty as either a principal or an accessory and continued by explaining the alternative ways in which the defendant could be held liable as an accessory. The trial court instructed the jury that its verdict must be unanimous; however, the defendant argues that because the trial court failed to instruct the jury that it must reach a unanimous agreement as to the factual theory of the crime, the jurors could have disagreed on what the defendant had actually done, yet collectively could have concluded that he was guilty of a crime. This omission, argues the defendant, violated his constitutional rights to due process and a fair trial.
The defendant relies on United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), State v. Bailey, 209 Conn. 322, 551 A.2d 1206 (1988), and State v. Benite, supra, as support for his claim that a specific unanimity instruction was required. We are not persuaded that these cases support the defendant’s claim. “In essence, the unanimity requirement as enunciated in Gipson and its progeny requires the jury to agree on the factual basis of the offense.” State v. Bailey, supra, 334. “ ‘Where a trial court charges a jury that the commission of any
Applying these principles to the defendant’s claims, we conclude that principal and accessory liability are not conceptually distinct within the meaning of Gipson. We find support for this conclusion in the decision of United States v. Petersen, 768 F.2d 64 (2d Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985). Faced with the same issue under the language of 18 U.S.C. § 2 (a),
Under General Statutes § 53a-8, “ ‘there 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, [supra, 608].” State v. Kemp, supra, 480 n.4. Under Connecticut law, a defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct. State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). In the present case a set of facts was presented to the jury that was subject to a variety of reasonable inferences. Those inferences, derived from only one set of facts, could have led to either a conclusion that the defendant acted as an accessory or a conclusion that he acted as a principal. As in Petersen, either way the jurors characterized the defendant’s particular actions, the jury would have been unanimous in finding the defendant guilty as a principal of the substantive crime charged. Therefore, we conclude that accessory and principal liability are not conceptually distinct. Accordingly, the trial court did not err by failing to give a specific unanimity charge.
Likewise, the defendant’s claim that the statutory alternatives under § 53a-8 each require specific unanimity instructions fails under Gipson. The trial court defined the terms of § 53a-8 as follows: “to ask earnestly”; “to ask for or express a desire for”; “to order or direct”; “to command, urge or incite”; and “to assist, help or support.” It is clear from these definitions that the alternative bases of liability under § 53a-8 are prac
Ill
The defendant next claims that the trial court erred in refusing to charge the jury on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide. The trial court instructed the jury that it might find the defendant guilty of the crime of murder or of a number of lesser included offenses, including manslaughter in the first degree. The defendant had requested the court to charge, in addition, that the jury consider the lesser included offenses of manslaughter in the second degree; General Statutes § 53a-56;
General Statutes § 53a-45 (c) provides that the jury trying a person for murder “may find him guilty of homicide in a lesser degree than that charged.” “Whether the defendant was entitled to a jury instruction on a lesser degree of homicide pursuant to this statute depends on whether the third and fourth requirements set out in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), were met. ‘[T]he evi
The element that distinguishes manslaughter in the second degree and criminally negligent homicide from murder is the required mental state. State v. Rodriguez, supra, 403. To commit manslaughter in the second degree, a person must “recklessly” cause the death of another; General Statutes § 53a-56 (a) (1); i.e., he must be “aware of and consciously [disregard] a substantial and unjustifiable risk that such result will occur . . . . ” General Statutes § 53a-3 (13). To commit criminally negligent homicide, a person must, with criminal negligence, cause the death of another person; General Statutes § 53a-58; i.e., he must fail “to perceive a substantial and unjustifiable risk that such result will occur . . . . ” General Statutes § 53a-3 (14). Viewing the evidence presented at trial in the light most favorable to the defendant, as we must; see State v. Smith, 185 Conn. 63, 77, 441 A.2d 84 (1981); we conclude that the evidence does not support a conviction of either manslaughter in the second degree or criminally negligent homicide.
The defendant argues that the jury could reasonably have believed that he and Wright went to the alley with the intention of purchasing drugs from Fiore. The defendant further hypothesizes that the jury could have believed that during the drug transaction, the defendant acted with the intent to threaten or assault Fiore,
IV
The defendant’s final claim is that the trial court erred in refusing to give a curative instruction to the jury explaining the outcome of his prior trial. The defendant claims that an answer to a question on cross-examination so prejudiced his right to a fair trial and an impartial jury that reversal is required. We disagree.
“Q. And back in September of last year at another hearing under oath did you not indicate that it was Frank Wright that came out of the alley holding the pipe? If you recall?
“A. I believe I did.
“Q. And today you say it is different; is that correct?
“A. That is correct. . . .
“Q. When were you last shown the pipe that you can recall, before —
“A. Last trial.
“Q. Before today?
“A. The last time I was here for trial.”
Defense counsel then continued questioning the witness. Only after the jury was excused for the day and sent home did he request that a curative instruction be given to the jury explaining that the defendant’s prior trial had not resulted in either a conviction or an acquittal.
We further note that the defendant did not make use of certain procedures available to him with respect to this claim of error. First, given his concern over the jury’s awareness of his prior trial, the defendant should have followed the common practice of filing a motion in limine to prevent any witness from referring to his prior trial.
There is no error.
In this opinion the other justices concurred.
“[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (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 defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
“[General Statutes] Sec. 53a-48. 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] See. 53a-8. criminal liability for acts of another. 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.”
“[Practice Book] Sec. 852. necessity for requests to charge and EXCEPTIONS
“The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”
Title 18 of the United States Code, § 2 (a) provides that “(wjhoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”
General Statutes § 53a-56 provides in pertinent part: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”
General Statutes § 53a-58 provides in pertinent part: “(a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person
The defendant’s argument is presumably that an instruction on criminally negligent homicide would have been warranted under these circumstances due to the defendant’s prior ingestion of drugs.
Defense counsel explained his failure to object to the answer earlier: “I didn’t draw attention to it at the time because I didn’t want the jury to—maybe I thought it might—I was hoping it would slip by them.”
“A motion in limine ‘in a broad sense [refers] to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered. ’ Luce v. United States, 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984).” (Emphasis added.) State v. Harrell, 199 Conn. 255, 259 n.4, 506 A.2d 1041 (1986).