State v. Allen, 13729

• Decision Date: 21 August 1990
• Docket Number: No. 13729,13729
• Citation: 216 Conn. 367,579 A.2d 1066
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Mark ALLEN.

Page 1066

579 A.2d 1066

216 Conn. 367

STATE of Connecticut v. Mark ALLEN.

No. 13729.

Supreme Court of Connecticut.

Argued June 6, 1990.

Decided Aug. 21, 1990.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, were G. Douglas Nash, Public Defender, and Ashley Wille, Law Student Intern, for the appellant (defendant).

Harry Weller, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for the appellee (state).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and BORDEN, JJ. GLASS, Justice.

The defendant, Mark Allen, was charged with the crimes of felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes § 53a-101(a)(2), and robbery in the first degree in violation of General Statutes § 53a-134(a)(1). ¹ After a jury trial, the defendant was found guilty of all charges, and on May 19, 1989, was sentenced to a total effective sentence of forty years. He appeals the judgment of conviction.

On appeal, the defendant argues: (1) that the trial court should have excused a juror who recognized the victim's former wife; (2) that the court did not adequately explain the element of "remaining unlawfully" for the offenses of burglary in the first degree and felony murder with burglary as its predicate felony; (3) that the court should have required the prosecution to prove beyond a reasonable doubt that the defendant "entered or remained unlawfully" on the premises as required to support the charges of burglary in the first degree and the alternative form of felony murder based on burglary as the underlying felony; (4) that the court improperly instructed the jury on the requirements of felony murder by (a) including accessory liability under General Statutes § 53a-8 ² in its instructions on felony murder, and (b) refusing to instruct in accordance with the defendant's requests to charge numbered eight and nine regarding the limits of liability and the "in furtherance" requirement of the charge of felony murder; and (5) that the court should not have instructed the jury on an unsupported theory of liability for the charges of robbery in the first degree and felony murder with robbery as its predicate felony. We affirm the judgment of the trial court.

The following evidence was presented at trial. In July, 1987, the victim, Theodore G, lived at a condominium complex in Branford. He owned a 1985 navy blue Chevrolet Celebrity. He was divorced from his wife, and lived alone. The victim engaged in homosexual activity, and he and David Mooney, who had a history of "hustling" homosexual men, were at some point involved in a relationship. On occasion, Mooney and the victim had been observed together outside Partners, a gay club in New Haven, as well as at the victim's place of employment and his condominium.

The victim was last seen alive between 6:30 and 7 p.m. on Wednesday, July 29 1987, by a security guard who was working at a beach near the victim's condominium. Family members of the victim entered his condominium at approximately 9:30 a.m. on Friday, July 31, 1987. The family members found the front door unlocked and no signs of forced entry, and nothing appeared out of the ordinary on the first floor. They then discovered the victim's naked body on the floor in the master bedroom upstairs. In reporting their observations to the police, the family also stated that the victim's automobile was missing, and that a large amount of coins, which the victim had accumulated, was also missing.

On August 5, 1987, the Branford and New Haven police observed the defendant driving a blue car matching the description of the victim's car, but bearing a different registration plate. Upon questioning, the defendant stated that the car belonged to his brother who had rented it. The police, however, determined that the vehicle belonged to the victim, and the defendant was then arrested. At trial, the state introduced four taped statements given by the defendant to the police during the course of the evening and early morning of his arrest. These statements were given at 9:37 p.m., 12:20 a.m., 3:40 a.m. and 4:40 a.m.

The defendant first stated that Mooney, his accomplice, had owed him $3200 for some drugs. Specifically, the defendant explained that on the afternoon of July 30, 1987, Mooney had offered him a bank bag full of rolled quarters, and that he and Mooney had changed the quarters into bills at a check cashing facility, where Mooney had given him $240 in cash from the quarters. Later that evening, Mooney told the defendant that he would give him a television to pay off more of the debt. When the defendant met Mooney the next day to receive the television, Mooney did not have it, but he offered the defendant the blue car as collateral. He also told the defendant that he did have a television for him and, with the defendant driving the blue car, they left to get the television. While the defendant drove, Mooney tried to open a metal box that he thought might contain money. When he saw that it contained only papers, Mooney threw the box in a dumpster at Kensington Square, and ran away, leaving the defendant with the car.

In his second statement, the defendant added that Mooney told him that he had made a "score," that he had somebody he called "Theo" tied up, and that that was how he had gotten the coins. The defendant stated that Mooney told him that the television that he had planned to give the defendant was from Theo's house. The defendant also stated that he had helped Mooney sell a VCR to a person named Eric Daniels.

In his third statement, the defendant admitted that he actually drove Mooney to the victim's condominium in the victim's car on the evening of July 30, 1987. The defendant claimed that Mooney had explained to him that he used to date the owner of the condominium. When they arrived at the condominium, the victim was upstairs in the master bedroom, naked, tied up and gagged. The defendant stated that he and Mooney took a VCR, some coins and a box from upstairs. As Mooney went through closets and drawers in both bedrooms, the defendant stated that the victim was "looking to me like help me." The defendant said that he had not touched the victim, but that Mooney had "smacked him." Mooney also told the victim to shut up or he would kill him. The defendant stated, however, that the victim had been alive when he left the condominium, and that Mooney never told him that he had killed the victim, although he did say that he was coming back to the condominium to party.

In his fourth statement, the defendant stated that he had taken the VCR when he and Mooney entered the condominium. They then went upstairs where the victim was tied up and making a lot of noise. The defendant stated that Mooney said that he had to shut the victim up. Mooney then began choking him with a cord and the defendant watched for two to five seconds. The defendant stated that he did not know if Mooney untied the victim after he finished choking him because he left the condominium and went outside to sit in the car. After a while, he went back to the door of the condominium and told Mooney to come on. When Mooney came down, he had fresh bleeding scratches on his back. Mooney took off his shirt, threw it into a bedroom and put on a blue shirt. The defendant stated that Mooney said that the victim would not stop scratching him, and that the victim had passed out.

The next morning the defendant also told the police that, if they looked in the woods behind the International House of Pancakes parking lot in Hamden, they would find the registration plate of the victim's car and a pair of bloody pants. The defendant also assisted the police in recovering the VCR from Daniels. Additionally, the prosecution introduced the testimony of another incarcerated prisoner, who testified that, while he was in a holding cell with the defendant, the defendant told him that he had strangled the victim to death when the victim had entered the condominium and caught him and Mooney stealing items.

At trial, the defendant testified that he had driven Mooney to the victim's condominium to get a television to repay part of the money that Mooney had owed him for the drugs. He saw a VCR downstairs and, since the television was old, he decided to take the VCR instead. He then joined Mooney upstairs, and saw the victim on the bed, naked and loosely tied while Mooney was poking him in a playful manner. He testified that he knew that Mooney had a sexual relationship with the victim, and, not wanting to get involved in that type of activity, he left. The defendant then picked up the VCR, left the condominium, and waited for Mooney in the car. Mooney came out in about fifteen minutes, and they both drove away. The defendant also presented testimony from the victim's former wife. She testified that the victim had been engaged in homosexual activity since the early 1970s.

I

The defendant claims that the trial court should have granted his request to excuse a juror for cause when the juror acknowledged that she recognized the victim's former wife, who ultimately became a witness for the defense. Moreover, the defendant argues that the court should not have concluded that, absent disqualification for cause, it lacked the authority to excuse the juror and substitute an alternate. The following additional facts serve as the basis for this claim.

On the second day of trial, the clerk informed the court that a juror had indicated to him that on the first day of trial she believed that she recognized someone who was seated in the courtroom "and inquired as to whether or not that person was the former wife of the victim...." The court, with counsel in agreement, conducted a voir dire of the juror that revealed that she and the woman she recognized worked in the same building. The juror stated: "In the morning, as I go in, sometimes she is going up with me and I say ...