State v. Avila

• Decision Date: 12 August 1992
• Docket Number: No. 14252,14252
• Citation: 223 Conn. 595,613 A.2d 731
• Parties: STATE of Connecticut v. Moises AVILA.
• Court: Connecticut Supreme Court

Page 731

613 A.2d 731

223 Conn. 595

STATE of Connecticut v. Moises AVILA.

No. 14252.

Supreme Court of Connecticut.

Argued March 31, 1992.

Decided Aug. 12, 1992.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

James M. Ralls, Asst. State's Atty., with whom, on the brief, were John A. Connelly, State's Atty., and Bradford Ward and Marcia Smith, Sr. Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and BERDON, JJ.

CALLAHAN, Associate Justice.

This appeal of a criminal conviction raises several claims regarding the propriety of the trial court's jury instructions. The defendant, Moises Avila, was tried for the crimes of felony murder and robbery in the first degree in violation of General Statutes §§ 53a-54c, 53a-133 and 53a-134(a)(2). ¹ The state pursued a theory of accessorial liability regarding both offenses pursuant to General Statutes § 53a-8. ² Although the defendant was acquitted of the felony murder charge, he was convicted of robbery in the first degree and sentenced to a term of imprisonment of eighteen years, execution suspended after thirteen years, with five years probation. Thereafter, he appealed to the Appellate Court, and this court transferred the case to itself pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On October 8, 1988, the defendant drove John Hoffler, Rodney Kyles and Nathaniel Nelson from New Haven to Waterbury. ³ Nelson was armed with a shotgun and Kyles was carrying a .38 caliber handgun in his belt. Jamele Gregg, armed with a .32 pistol, joined the group in Waterbury. The defendant then drove around Waterbury while his passengers looked for a place to rob. Each time a likely location was approached, the defendant would slow the car so that the area could be reconnoitered. The men considered robbing several different places, but decided against all of them for various reasons. Finally, however, the defendant parked the car near a private social club on Walnut Street. His passengers entered the club while he waited in the car with the motor running.

Upon entering the club, the four men displayed their weapons, ordered the patrons to leave their money on the table and to put their heads down between their knees. Nelson attempted to take a wallet from Thompson Lynn, a patron of the club, but Lynn refused to surrender it. Nelson then struck him on the head with his shotgun. As the robbery progressed, Robert "Butch" Clark emerged from a bathroom and attempted to leave the club. Kyles stopped him, however, and a struggle ensued, during which Kyles shot Clark three times in the chest, killing him. The men then left the club, taking the money they had collected. The defendant, who was waiting nearby in the car, picked them up and sped from the scene of the robbery.

On appeal, the defendant claims that the trial court: (1) failed to answer adequately a question asked by the jury regarding an essential element of robbery in the first degree; (2) improperly instructed the jury on the definition of intentional conduct; and (3) improperly instructed the jury on the intent required to commit the offense of robbery in the first degree as an accessory.

I

The defendant first claims that the trial court inadequately answered a question asked by the jury during deliberations. He argues that, when the jury asked whether the defendant would be guilty as an accessory if he were unaware that a robbery had taken place until after it had occurred, the trial court should have responded directly that the defendant would not be guilty unless he had intended that a robbery occur prior to its actual commission. ⁴ The trial court did not do so. Because the jury's question directly concerned an essential element of the offense of robbery in the first degree, the defendant claims that he is entitled to a new trial. We are not persuaded.

In its final instructions, the trial court informed the jury of the elements of robbery in the first degree. The court also informed the jury that the state was proceeding on the theory that the defendant was an accessory to the crime, rather than a principal. Regarding accessorial liability, the court instructed the jury that, in order to prove the defendant guilty, the state had to demonstrate that the defendant had possessed the mental state required for the commission of robbery and that he had intentionally aided the principal offenders to commit that crime. ⁵ The court further explained that the state would have to prove that the defendant had (1) intended that a robbery be committed; (2) intended to assist the principals in its commission; and (3) possessed both of these intentions at the time that he drove the principals to and from the scene of the crime. ⁶

On October 5, 1990, the second day of jury deliberations, the jury presented the court with a note asking: "Question: Would the accused be an accomplice if he were aware of any criminal act(s) only if he were made aware immediately after said acts were performed, and participated in the escape of the parties involved in the criminal acts?" (Emphasis in original.)

On October 9, 1990, the court responded to the jury's question stating, "my answer to you is that I have informed you what the state has to prove beyond a reasonable doubt for you to find that the defendant was an accessory to the crime, the crime of robbery. If I receive--And, therefore, that is my answer to your question. If I receive a request from you to request or redefine my instructions, insofar as they relate to what the state has to prove for you to find that Mr. Avila is an accessory to the crime, [I] will.... So, if you want me to give you further instructions as to what an accessory is, I shall be very happy to do so. But, I need a note from you to do it."

On the following day, the jury requested the court to redefine the elements of felony murder and robbery in the first degree. In response, the court stated that it would "get to the heart of the matter which seems to be bothering you and that is whether the defendant is a participant in the robbery." The trial court then proceeded to reinstruct the jury on the elements of robbery in the first degree and felony murder. Regarding the defendant's intent, the court again informed the jury that, in order to find the defendant guilty, it would be required to find that the defendant (1) had intended to commit a robbery; (2) had intended to aid the principals in their commission of a robbery; and (3) acting with both of those intentions, had driven the principals "to and from " the scene of the crime. (Emphasis added.)

On October 11, 1990, the jury again asked the court what must be proven in order to find the defendant guilty of robbery in the first degree. In response, the court reinstructed the jury regarding the elements of robbery. Again, the court explained that the defendant would not be guilty of robbery in the first degree unless the jury found that he had had the intent that a robbery be committed and, acting with that intention, had intentionally aided the principals by driving them "to and from " the scene of the crime. (Emphasis added.)

Immediately following the trial court's reinstruction, the defendant took exception, stating, "I don't know whether the jury knows that there is a dual intent required." In response, the trial court called the jury back into the courtroom and, once more, reinstructed it. The court repeated that the state was required to prove that the defendant (1) had intended that a robbery be committed; (2) acting with that intent, had intentionally aided the principals; and (3) acting with both of those intentions, had driven the principals "to and from " the scene of the robbery. ⁷ (Emphasis added.)

Although the trial court repeatedly instructed the jury regarding the elements of the charged offenses, it never specifically supplied the jury with a direct answer to its question of October 5, 1990. The gravamen of the defendant's claim on appeal is that, in failing to respond to that question directly, the court failed to clarify the elements of the offense, and left the jury in doubt as to whether the defendant could be guilty of robbery if he had become aware of the robbery only after it had been committed.

Initially, the state claims that the defendant failed to preserve this claim properly at trial. Our review of the trial transcript also indicates that the defendant did not properly preserve this issue. See Practice Book §§ 288 and 4185; State v. Tillman, 220 Conn. 487, 506, 600 A.2d 738 (1991), cert. denied, --- U.S. ----, 112 S.Ct. 3000, 120 L.Ed.2d 876, (1992). Alternatively, the defendant asserts that he has raised a constitutional issue and should prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In order to prevail on appeal on an unpreserved constitutional claim, the defendant must satisfy 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." Id.

It is uncontroverted that the defendant has established both that the record is adequate to review his claim and that his claim alleges the violation of a fundamental right. He has thus satisfied the first and second prongs of the Golding test; consequently, we must determine whether a constitutional violation clearly exists and, if so, whether it clearly deprived the defendant of a fair trial. ⁸ We conclude...