State v. Ashe

• Citation: 74 Conn. App. 511,812 A.2d 194
• Decision Date: 14 January 2003
• Docket Number: (AC 22784)
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. CARLOS ASHE

74 Conn. App. 511

812 A.2d 194

STATE OF CONNECTICUT v. CARLOS ASHE

(AC 22784)

Appellate Court of Connecticut.

Argued September 18, 2002.

Officially released January 14, 2003.

Schaller, West and Dupont, Js.

William B. Westcott, special public defender, for the appellant (defendant).

Robert J. Scheinblum, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Carlos Ashe, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-54a (a)¹ and 53a-8 (a),² conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a),³ and two counts of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (5)⁴ and 53a-8 (a). The defendant claims (1) that the evidence was insufficient to sustain his conviction of murder and assault in the first degree, and (2) that the prosecutor committed misconduct in closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 14, 1996, at approximately 2 a.m., Sean Adams, Darcus Henry, Johnny Johnson and the defendant, all of whom were members of a gang known as the Island Brothers, went to a housing project (project) in New Haven. All four were armed, and as they entered a courtyard in the project, they fired on the three victims, Andre Clark, Marvin Ogman and Jason Smith. Smith died, and Clark and Ogman were seriously injured as a result of the attack.

Adams, Henry, Johnson and the defendant were arrested and, in a four count substitute information, charged with murder, conspiracy to commit murder and two counts of assault in the first degree. The four cases were consolidated and tried together. With regard to the defendant, the jury was unable to reach a unanimous verdict, and the court declared a mistrial.⁵ In a second trial, the defendant was found guilty on all four counts, and the court imposed a total effective sentence of ninety years imprisonment. This appeal followed. Additional facts will be set forth as necessary to resolve the defendant's claims.

I

The defendant first claims that the evidence at trial was insufficient to sustain his conviction of murder and assault in the first degree. Specifically, the defendant argues that the evidence was insufficient to support his conviction under a theory of accessorial liability because the state failed to present evidence that he aided another person to commit murder and assault in the first degree.⁶ We disagree.

As a preliminary matter, we note that the defendant's claim of evidentiary insufficiency is reviewable even if it may not have been properly preserved at trial. "Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant's federal constitutional right not to be convicted of a crime upon insufficient proof. . . . Our Supreme Court has stated that Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)], compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. . . . Thus . . . there is no practical reason for engaging in a Golding analysis of a claim based on the sufficiency of the evidence . . . ." (Citation omitted; internal quotation marks omitted.) State v. Estrada, 71 Conn. App. 344, 349-50, 802 A.2d 873, cert. denied, 261 Conn. 934, 806 A.2d 1068 (2002). We will review the defendant's challenge to the sufficiency of the evidence as we do any properly preserved claim.

The following additional facts are relevant to the defendant's claim. At trial, the state called Ogman, who testified that as he and the other victims stood in the courtyard at the project around 2 a.m. on December 14, 1996, four individuals emerged from a nearby tunnel. Ogman stated that he recognized them as Adams, Henry, Johnson and the defendant, and that they all were firing guns. Clark also testified that he saw the defendant carrying a gun.

The state also called Richard Pelletier, a detective with the New Haven police department who was assigned to the state police gang unit at the time of the shooting. Pelletier testified as follows. Adams, Henry, Johnson and the defendant all were members of the Island Brothers gang. In late 1996, the Island Brothers were upset about the recent killing of one of their members, sixteen year old Tyrese Jenkins. Charles Green and Duane Clark, who were members of a loosely knit rival group known as the Ghetto or the Ghetto Brothers, had been arrested in connection with Jenkins' death.⁷ The Island Brothers vowed to avenge Jenkins' death by killing sixteen of the Ghetto Brothers. The victims in the present case, Andre Clark, Ogman and Smith, all were associated with the Ghetto Brothers. Pelletier also testified that after the December 14, 1996 shooting, he was sent to locate Adams, Johnson and the defendant. He found them together at Johnson's house at approximately 11 a.m.

Edmond Comfort, a photographer, testified that he was working at the Melebus Club, a New Haven nightclub, on the night of December 13 and in the early morning of December 14, 1996. He identified several photographs that he took that night, and the photographs were admitted into evidence. Comfort identified three of the individuals in the photographs as Adams, Henry and the defendant. Raymond Johannes, an officer with the New Haven police department, testified that the Melebus Club is in close proximity to the project where the victims were shot.

"The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 377-78, 796 A.2d 1191 (2002).

General Statutes § 53a-8 (a) provides that "[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." "[T]here is no such crime as being an accessory . . . . The accessory statute merely provides alternate means by which a substantive crime may be committed. . . . This state . . . long ago adopted the rule that there is no practical significance in being labeled an accessory or a principal for the purpose of determining criminal responsibility. . . . The modern approach is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. . . . [The] labels [of accessory and principal] are hollow. . . ." (Citations omitted; internal quotation marks omitted.) State v. Solek, 242 Conn. 409, 421-22, 699 A.2d 931 (1997). "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.. . . To prove guilt as a principal, the state must prove each element of the offense charged beyond a reasonable doubt. To be guilty as an accessory one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it." (Internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 543, 679 A.2d 902 (1996). "Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there." (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 622, 725 A.2d 306 (1999).

The defendant does not dispute that the evidence is sufficient to support a finding that he and his fellow gang members traveled to the project on December 14, 1996, with the intention of killing members of the Ghetto Brothers and that upon arrival they shot at the victims, killing Smith and injuring Andre Clark and Ogman. The defendant argues, however, that this evidence is insufficient to establish that the defendant "intentionally [aided] another person to engage in conduct which constitutes an offense" under § 53a-8 (a). Specifically, the defendant argues that to obtain a conviction under § 53a-8 (a), the state must prove more than that he acted in concert with another pursuant to a common design.⁸ According to the defendant, the state must prove that but for his conduct, the principal offender would not have succeeded in completing the crime.

This is not a case of first impression. Contrary to the defendant's assertion, previous cases with facts similar to those presented here indicate that a showing of concert of action between a defendant and another person can provide a sufficient basis for accessorial liability. For example, the defendant in State v. Delgado, supra, 247 Conn. 619-20, fired thirteen shots at a...