68 Conn. App. 194 | Conn. App. Ct. | 2002
Opinion
The defendant, Eufemio Vasquez, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l)
The jury reasonably could have found the following facts. In the early evening of March 31, 1998, Gloryann Lopez left her apartment building on Zion Street in
A short while after returning home, Lopez and several of her friends, including Obexsa Ruiz, Lisa Rosario and Jessica Maisonet, decided to walk to another nearby store located on Wolcott Street. Lopez and the others had heard a rumor that a fight would occur at that store. As they walked along Park Street, a blue van drove past them toward their destination. The defendant and Martinez were in the van. The women were familiar with the defendant, and both he and Martinez spoke to them in a rude manner. At some point, the women in the group learned that the fight was not going to occur and they proceeded to the front stairs of an apartment building at 597 Zion Street, where others eventually joined them.
At approximately 9 p.m., the same blue van that the women had seen earlier quickly approached and came to an abrupt stop in front of the apartment building. Its headlamps were turned off. As the people congregated in the front of the building began to flee, the defendant and Martinez exited the van via a sliding side door and, along with a third man who exited the van via the passenger door, started firing shots at the members of the group. One of the males who had been standing in front of the apartment building with the others drew a gun and returned fire in the direction of the van. The operator of the van also exited the van and began firing his gun in the direction of individuals who were located on the opposite side of Zion Street.
Lopez found safety just inside the front door of the apartment building. From this vantage point, she
I
The defendant first claims that the judgment should be reversed because the court improperly refused to admit into evidence a certain redacted statement. We disagree.
During Lopez’ cross-examination, she testified that she reported to the police that she had seen the defendant in a van on Park Street prior to the shooting. After the defendant’s counsel asked Lopez to review her statement to the police, she testified that the statement did not reflect that she had reported this observation to the police. Following Lopez’ redirect examination, defense counsel offered as an exhibit a redacted version of the statement that Lopez had provided to the police. The redacted version of Lopez’ statement omitted Lopez’ description of the shooting, her recollection of Rosario’s injuries and her later identification of the defendant as the shooter.
The defendant’s counsel argued that the redacted statement was admissible as a prior inconsistent statement under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The defense argued that it was relevant and admissible as a prior inconsistent statement
The court did not admit the redacted statement into evidence, despite the fact that it agreed that the omission in the statement of facts that Lopez included in her testimony at trial demonstrated an inconsistency. The court noted that it would be inclined to allow the entire statement as an exhibit but that several considerations weighed against admitting the redacted version into evidence. The court noted that Lopez’ written statement was two pages in length and that the defendant’s proposed redaction of critical information that Lopez provided to the police concerning the shooting from the statement “might very well serve to confuse the jury [into] concluding that she did not give a full statement on April 1, 1998, regarding other facts, namely, what she testified to concerning what happened [at the scene of the shooting itself].” The court further noted that the jury might read the redacted statement, recognize that the crux of her testimony about the shooting itself is not reflected therein, and be confused as to how to assess Lopez’ testimony in toto.
“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse
In State v. Whelan, supra, 200 Conn. 753, our Supreme Court adopted a rule allowing for “the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.”
For purposes of our analysis, we note the distinction between those prior statements that contain contradictory representations and those prior statements that are inconsistent because of a declarant’s omission of certain facts. Concerning statements in the latter category, the rule is that “[i]f a former statement fails to mention a material fact presently testified to, which it should have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent.” (Internal quotation marks omitted.) State v. Reed, 174 Conn. 287, 303, 386 A.2d 243 (1978); see also State v. Prutting, 40 Conn. App. 151, 158, 669 A.2d 1228, cert. denied, 236 Conn. 922, 674 A.2d 1328 (1996).
When a prior statement is inconsistent with a witness’ present testimony because it contradicts the witness’ present testimony, the introduction of only as much of the prior statement that is contradictory is usually sufficient to afford the jury a basis on which to evaluate the claimed inconsistency. When a party wants to impeach a witness with a prior inconsistent statement on the basis of an omission in that statement, however, the court must determine how much of that prior statement is relevant to afford the jury a basis on which to evaluate the claimed inconsistency.
In making this determination, it is natural for the court to consider the relevance of the alleged prior inconsistency to the issues at trial, as well as the likely effect of such evidence on the jury. The court should avoid admitting evidence that has a tendency to confuse or mislead the jury. This duty includes declining to admit a prior statement that is likely to mislead the jury given the circumstances under which the declarant made such a statement
In the present case, the court reviewed the redacted version of the statement that the defendant sought to introduce as an exhibit. The court explained its concern that the redacted statement had, in its view, a tendency to confuse or mislead the jury as it evaluated Lopez’ testimony. Although the court recognized that the prior statement was inconsistent, it stated that the jury might mistakenly believe that Lopez did not provide a complete statement to the police as to matters that the defendant sought to redact from the statement. The court performed its function of evaluating the proffered evidence in light of its likely effect on the jury, and its analysis reflects the exercise of sound discretion.
In any event, we also conclude that the defendant has failed to demonstrate that he suffered substantial prejudice or injustice as a result of the court’s ruling. The record reflects that defense counsel inquired of Lopez as to whether she reported having seen the defendant on Park Street prior to the shooting. Lopez answered in the affirmative. Defense counsel then
II
The defendant’s next claim challenges the sufficiency of the evidence underlying his conviction. Specifically, he claims that the court improperly denied his motion for a judgment of acquittal as to counts one, two and three of the information.
We undertake our analysis of this issue by setting forth each essential element of the crimes with which the defendant was charged and determining whether the state has proven each element beyond a reasonable doubt. In undertaking this task, we are mindful that “although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture.” (Internal quotation marks omitted.) State v. Giguere, 184 Conn. 400, 403, 439 A.2d 1040 (1981). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 655, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).
We first consider the defendant’s claim that the evidence was insufficient to sustain his conviction of assault in the first degree.
To sustain a conviction under § 53a-59 (a) (1), the state needs to demonstrate with proof beyond a reasonable doubt that a defendant (1) intended to cause serious physical injury to another person, (2) caused such injury to such person or to a third person and (3) did so by means of a deadly weapon or a dangerous instrument. In the present case, although the state charged the defendant as a principal actor under the statute, the court properly instructed the jury that it could find the defendant guilty under a theory of accessorial liability pursuant to General Statutes § 53a-8.
Accordingly, the state did not need to prove that the defendant, acting as an accessory, actually inflicted the victim’s injuries. The state needed to prove that (1) the defendant intended to cause serious physical injury to another person, (2) the defendant either caused such physical injury to such person or solicited, requested, commanded, importuned or intentionally aided another person to cause such physical injury and (3) such injury was inflicted with the use of a deadly weapon or a dangerous instrument.
Examining the evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient evidence to convict the defendant of assault in the first degree as an accessory. Lopez testified that she knew the defendant, she had dated him and
Lopez testified that as soon as the defendant and Martinez exited the van, “that’s when they started shooting.” She heard the gunshots and saw flashes of light coming from the guns that the defendant and Martinez were firing. She recalled that the defendant was shooting at the people who had congregated on the steps of 597 Zion Street. Lopez testified that although she had taken refuge just inside the apartment building, she observed the defendant’s subsequent actions and that after the shooting had ceased, the van sped away without the defendant and the defendant fled on foot.
Ruiz corroborated the crux of Lopez’ testimony during her examination. She also testified to having seen the blue van on Park Street before the shooting and recalled that several people were in the van and that they made rude comments to her and the other women who had been walking with her. She identified the defendant as one of the van’s occupants. She testified that she had known the defendant for some time. Likewise, she recalled seeing the same van pull up to the scene of the shooting in front of 597 Zion Street. She observed that the defendant and Martinez exited the van and that they had guns and “started shooting.” Like Lopez, Ruiz testified about finding Rosario on the front porch of the apartment building after the shooting, badly wounded.
On the basis of this testimony, as well as other evidence adduced at trial, the jury reasonably could have found beyond a reasonable doubt that the defendant intended to cause physical injury to another person. He exited the van carrying a gun and fired the gun at the persons who had congregated in front of 597 Zion Street. He had seen many of those same people just hours earlier as he rode in the same van down Park Street. As this court has stated: “Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. ... It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” (Citations omitted; internal quotation marks omitted.) State v. Madagoski, 59 Conn. App. 394, 399-400, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 100 (2001).
The state did not need to prove that the defendant actually caused serious physical injury to the victim. “It is enough for the state to prove that the defendant, acting with the intent to cause serious injury to [the
The testimony elicited during trial, if credited by the jury, clearly established that the defendant was one of the shooters. He and Martinez exited the van, carrying guns, and fired shots in the direction of the individuals who were congregated at that place. The defendant, at the very least, intentionally aided the commission of the crime. The testimony regarding the earlier encounter between the defendant and the witnesses walking along Park Street, the way in which the same van approached the scene of the shooting, and the defendant’s behavior in exiting the van with Martinez, firing at the victim and running from the scene all support a finding that he intentionally aided in the commission of the crime that inflicted Rosario’s injuries.
“Since under our law both principals and accessories are treated as principals ... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the convictions must stand.” (Internal quotation marks omitted.) State v. Fuller, 58 Conn. App. 567, 574, 754 A.2d 207, cert. denied, 254 Conn. 918, 759 A.2d 1026 (2000); see also General Statutes § 53a-8.
Last, there can be no disagreement that the injuries inflicted on the victim were caused with a deadly weapon. The evidence overwhelmingly showed that the defendant and the other shooters used guns in their
B
We next consider the defendant’s claim that the evidence was insufficient to support his conviction of conspiracy to commit assault in the first degree.
To sustain a conviction under § 53a-48 (a), the state needs to prove beyond a reasonable doubt (1) that a defendant intended that conduct constituting a crime be performed, (2) that he agreed with one or more persons to engage in or cause the performance of such conduct and (3) that he or any one of those persons committed an overt act in pursuance of such conspiracy. General Statutes § 53a-48 (a). Conspiracy “is a specific intent crime, with the intent divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also they intended to commit the elements of the offense.” (Internal quotation marks omitted.) State v. Kenney, 53 Conn. App. 305, 312, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999).
After carefully reviewing the evidence adduced at trial, we conclude that there was ample evidence, both direct and circumstantial, to demonstrate that the defendant engaged in a conspiracy to commit the crime of assault in the first degree. In support of our conclusion, we return to events that happened earlier in the day on the day of the shooting. Lopez testified that she and others observed Martinez fighting at a local grocery store with a man known to her as Sharat. As Martinez fled the scene, he drove his car into another parked
A few hours after this confrontation, Lopez and her friends saw Martinez as they walked along Park Street. At this time, Martinez was in a van with several of his acquaintances, including the defendant. Someone in the van made rude comments to the women who were walking, and the van continued on. Lopez testified that before the shooting occurred, several people had congregated directly in front of or near 597 Zion Street. One of those individuals was a man who had been at the prior confrontation between Martinez and Sharat. Ruiz testified that one of the men who had been standing near the group on the sidewalk returned gunfire at the defendant and the others who came out of the van. She also testified about other males who were returning fire from the other side of the street.
From these facts, as well as others adduced at trial, the jury could have found beyond a reasonable doubt that Martinez conspired with the defendant and others to exact retribution on those who had been involved in the fight with him earlier in the day. In any event, the choreographed sequence of events surrounding the shooting is evidence of a planned attack on the victim and others. The van approached the scene at a high rate of speed; it came upon the scene fast enough that several individuals ran for safety even before the actual shooting commenced. The van’s headlamps were not on, despite the fact that it was dark outside. The defendant and other shooters exited the van wearing dark colored gear, which a witness described as “hoodies.” They were armed and quickly emerged from the van and began firing at their targets. At the end of the shooting, the van sped off, and the defendant and Martinez fled on foot.
The overwhelming evidence clearly demonstrated that the defendant was part of a conspiracy and that
Ill
The defendant’s next two claims are related in that they both challenge the propriety of specific instructions in the court’s jury charge. The defendant first claims that the court improperly delivered an instruction in regard to the liability of coconspirators under the doctrine set forth in Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). Second, the defendant claims that the court improperly delivered an instruction in regard to accessorial liability. We disagree with both claims and address each claim in turn.
A
The court instructed the jury as follows: “I shall now instruct you on the law of accessory or accomplice responsibility, which I referred to a moment ago.
“First, you must be convinced beyond a reasonable doubt that the defendant intended to cause serious physical injury to another person. However, it makes no difference whether Lisa Rosario’s injuries were actually inflicted by the defendant’s firing of a gun or by the gun of another person if the defendant was acting with the other person in a common purpose to carry on the activity of the shooting as I will charge you.”
The defendant classifies the foregoing instruction as a Pinkerton instruction and argues that the court
We note that the challenged instruction dealt with the principle of accessorial liability,
The defendant now claims that the court improperly delivered a Pinkerton instruction in the first instance because the facts elicited at trial did not warrant such an instruction. As we stated earlier, the defendant did not object to the court’s charge on this ground. The defendant does not seek either plain error review; Practice Book § 60-5; or review of this unpreserved claim under the doctrine for reviewing such claims set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Consequently, we decline to review this claim because the defendant neither raised it sufficiently at trial nor properly preserved it for appellate review. State v. Andresen, 256 Conn. 313, 324, 773 A.2d 328 (2001); State v. Krzywicki, 39 Conn. App. 832, 838, 668 A.2d 387 (1995).
B
The defendant’s next claim focuses on the court’s instruction with regard to accessorial liability. The court read the relevant legislative enactment, § 53a-8
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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.” (Emphasis in original.) Id. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . . This court may dispose of the claim on any one of the conditions that the defendant does not meet.” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 653, 783 A.2d 511 (2001).
The defendant argues, and the record reflects, that the state charged the defendant solely as a principal in its long form information and that the court accepted his not guilty plea as to those charges. The defendant points out that the state first discussed the defendant’s guilt as an accessory to the crimes charged when it opposed his motion for a judgment of acquittal at the close of the state’s case. He argues that the court’s charge deprived him of his right to present a defense,
Although the record is adequate for our review of this claim and the claim is of constitutional magnitude, the claim nonetheless fails under the third prong of Golding because the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial. It is of fundamental importance that the state advise defendants of the nature and cause of the accusations against them. It is well settled, however, that “[u]nder 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.” (Internal quotation marks omitted.) State v. James, 247 Conn. 662, 679, 725 A.2d 316 (1999).
A defendant cannot be convicted of “being an accessory.” Proving guilt as an accessory under § 53a-8 is an
Nevertheless, due process considerations preclude a court from instructing a jury that it may convict a defendant under a theory of accessorial liability in certain circumstances. Inherent in the constitutional mandate that a defendant be advised of the “nature and cause” of the accusations against him is that the defendant be on notice of the nature of the state’s prosecution. The state cannot present its case on the theory of principal liability and then, without providing notice to the defendant, seek near the conclusion of the trial to convict the defendant under a theory of accessorial liability.
The defendant relies on State v. Steve, 208 Conn. 38, 45-46, 544 A.2d 1179 (1988), in support of his claim. In Steve, the state’s bill of particulars charged the defendant as a principal actor for the crimes of robbery in the first degree and assault in the first degree. Id., 41. After the state concluded its case-in-chief, the defendant took the stand in his own defense and testified that a second person had actually shot the victim and taken his property. Id., 42. A second defense witness corroborated this testimony and testified that she had seen the defendant and the actual shooter immediately before and after the shooting. Id. Before closing arguments, the state’s attorney advised the defendant that the state would request a charge on accessorial liability. The court complied with that request. Id., 42-43.
Our appellate courts have had occasion to revisit similar issues in cases argued and determined subsequent to Steve. The defendant in State v. Williams, 220 Conn. 385, 388, 599 A.2d 1053 (1991), claimed on appeal that the trial court had improperly instructed the jury on the principle of accessorial liability. Our Supreme Court rejected the claim for two reasons. First, the court noted that the information sufficiently alerted the defendant to the fact that he could be tried as an accessory to the crime. Id., 390. Second, and most important to our analysis, the Supreme Court noted that, unlike in Steve, “the defendant . . . was specifically put on notice . . . prior to beginning his defense, that the issue of accessorial liability was still in the case.” (Emphasis added.) Id.
In State v. Hopkins, supra, 25 Conn. App. 565, this court rejected a similar claim. We reasoned that the court had not improperly instructed the jury on the
In State v. Prat, 66 Conn. App. 91, 784 A.2d 367 (2001), this court rejected a similar claim, relying partly on the fact that the trial court had informed counsel prior to the beginning of closing arguments that it intended to instruct the jury on accessorial liability. We observed that “[t]he defendant had the same opportunity as the state to prepare his final arguments to the jury on the subject of his liability as an accessory.” Id., 97.
We conclude that the present case is distinguishable from Steve and that it is factually similar to Hopkins, Williams and Prat. In the present case, the state filed a long form information and the record does not reflect that the defendant sought a bill of particulars.
For these reasons, we conclude that the defendant has failed to demonstrate that a constitutional violation clearly exists that clearly deprived him of a fair trial. Accordingly, his claim fails under Golding's third prong.
IV
The defendant’s final claim is that the court denied him his right to an impartial jury comprised of a fair cross section of the community when it improperly denied his motion to strike the jury array. We disagree.
The record reveals the following additional facts that are pertinent to this claim. Jury selection in the present case occurred over the course of four days: August 26, 27, 30 and 31, 1999. The clerk brought two panels of potential jurors, consisting of fifty venirepersons, to the courtroom for voir dire examination. The parties concluded selection of a jury of six, with two alternates,
The court inquired of the defendant’s counsel as to how she wanted to proceed in light of her motion. The defendant’s counsel represented that she was not prepared to argue the motion at that time and that she wanted only to preserve the issue on her client’s behalf. She also noted that the racial or ethnic composition of any additional venire panels, should such panels be necessary, might render her motion moot. The court instructed the parties to resume jury selection, and the parties thereafter selected alternate jurors from the group of returning venirepersons, obviating the need to summon an additional group of venirepersons to the courtroom.
The court scheduled the trial to begin on September 15,1999, and instructed the selected jurors to report for trial on that date. The record reflects that the defendant filed a “Motion to Strike Jury Array” on September 14, 1999, in which he reiterated his constitutional challenge to the jury array and alleged that none of the jurors selected for his trial was Hispanic and that none of the fifty potential venirepersons assigned to his trial was Hispanic. He sought an order to “strike the array as
On September 15, 1999, the court addressed the defendant’s motion. The defendant’s counsel represented that she believed that she would require a continuance of perhaps ninety days to gather the statistical evidence necessary to support her motion and admitted that she currently did not possess the specific statistical proof in support of her claim. The court stated that the defendant had not proved a prima facie case that the state had violated the fair cross section requirement.
The court thereafter discussed the defendant’s request for a continuance to gather evidence in support of his claim. Foremost, the court expressed its concern over the timing of the defendant’s motion, coming on the very eve of trial. The court noted that the parties already had used valuable court time to select a jury and that the jury was already at the courthouse and waiting to begin hearing evidence. The court discussed the practical considerations that weighed against imposing a lengthy trial delay on the jury. The court also noted that a lengthy delay would cause detriment to the defendant, who remained incarcerated, to the state and to the witnesses present at the courthouse. On these grounds, the court denied the defendant’s request for a continuance and denied the defendant’s motion to strike without prejudice. The court ruled that the trial would proceed but that the defendant would have the right to raise his constitutional challenge to the jury array in a motion for a new trial, if he were convicted. The court observed that in the event that the defendant was acquitted, the issue would be moot. The defendant’s counsel agreed with the court that this
The record further reflects that the jury convicted the defendant on September 30,1999. The court scheduled a sentencing hearing for December 3, 1999. In the intervening two months, the defendant did not file a motion for a new trial, as the court and our rules of practice afforded him the right to do.
We conclude that the defendant waived this claim. Our appellate procedures do not permit an appellant to “pursue one course of action at the trial and then . . . to insist on appeal that the course which he rejected at the trial be reopened to him . . . .” (Internal quotation marks omitted.) State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987). The court denied the defendant’s claim without prejudice. The court afforded the defendant the opportunity to raise it again, and his counsel declined to do so. The defendant’s counsel clearly represented her tactical decision not to pursue the matter.
Furthermore, the necessary result of the defendant’s decision not to pursue the matter is that the record is
At trial, the defendant’s counsel sought a continuance of as many as ninety days so that she could compile the necessary evidence in support of this claim. The parties and the court recognized that a full evidentiary hearing would be necessary if the defendant wanted to pursue the claim. The court denied the defendant’s motion without prejudice. The court afforded the defendant the opportunity to prepare and to bring this claim before the court. He did not do so. The defendant now seeks review of this claim under State v. Golding, supra, 213 Conn. 239-40. The claim fails under Golding's first prong because the record is not adequate for review. The defendant failed to pursue his claim and consequently, failed to surmount the considerable evidentiary burden necessary to prove it. See State v. Tillman, 220 Conn. 487, 491-99, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); State v. Walthall, 62 Conn. App. 99, 101-102,
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . .
General Statutes § 53a-48 (a) provides: “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.”
This rule is incorporated in Connecticut Code of Evidence § 8-5 (1).
See State v. Mukhtaair, 253 Conn. 280, 306-307, 750 A.2d 1059 (2000).
The principle of affording the fact finder the proper context in which to consider statements is codified in Connecticut Code of Evidence § 1-5, which provides: “(a) Contemporaneous introduction by proponent. When a statement is introduced by a party, the court may, and upon request shall, require the proponent at that time to introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered contemporaneously with it.
“(b) Introduction by another party. When a statement is introduced by a parly, another party may introduce any other part of the statement, whether or not otherwise admissible, that the court determines, considering the context of the first part of the statement, ought in fairness to be considered with it.”
The record reflects that, at the close of the state’s case, the defendant moved for a judgment of acquittal pursuant to Practice Book § 42-41 as to all counts of the information. The court denied the motion as to counts one, two and three of the information, but granted it as to count four, which had charged the defendant with criminal possession of a pistol in violation of General Statutes § 53a-217c.
After the jury rendered its verdict, the defendant once again moved for a judgment of acquittal pursuant to Practice Book § 42-51 as to counts one and three of the information. The court denied that motion.
General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.” Before the court submitted the case to the jury, it expressed reservations on double jeopardy grounds with submitting both counts one and two to the jury. The defendant thereafter moved to dismiss count one of the information on those grounds.
General Statutes § 53a-8 (a) provides: “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,”
we will address the defendant’s challenge to the court’s accessorial liability instruction in part HI B of this opinion.
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .”
The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf. . . and in all prosecutions ... to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”
A defendant may, pursuant to Practice Book §§ 41-20 and 41-21, seek additional information about the charges against him by requesting a bill of particulars.
See Practice Book §§ 42-53 and 42-54. On October 4,1999, the defendant filed a motion for a judgment of acquittal on the ground of insufficient evidence.