State v. Bennett, 18606.

• Decision Date: 05 February 2013
• Docket Number: No. 18606.,18606.
• Citation: 59 A.3d 221,307 Conn. 758
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Calvin BENNETT.

307 Conn. 758
59 A.3d 221

STATE of Connecticut
v.
Calvin BENNETT.

No. 18606.

Supreme Court of Connecticut.

Argued Sept. 27, 2012.
Decided Feb. 5, 2013.

[59 A.3d 223]

Heather M. Wood, assistant public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and John Davenport, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, HARPER and VERTEFEUILLE, Js.^*

HARPER, J.

[307 Conn. 760]The defendant, Calvin Bennett, was charged with aiding and abetting murder in violation of General Statutes §§ 53a–8 and 53a–54a, felony murder in violation of General Statutes § 53a–54c, home invasion in violation of General Statutes § 53a–100aa (a)(1), and burglary in the first degree in violation of General Statutes § 53a–101 (a)(3). The defendant elected a trial to a three judge court (panel). See General Statutes § 54–82. The panel, consisting of Cremins, Crawford and Schuman, Js., rendered a unanimous verdict of guilty on all of the charges except aiding and abetting murder, on which a majority of the panel found the defendant guilty, and thereafter rendered judgment in accordance with the verdict and imposed a total effective sentence of sixty years imprisonment. Pursuant to General Statutes § 51–199(b)(3), the defendant directly appealed from the judgment of conviction to this court. On appeal, the defendant contends: (1) that there was insufficient evidence to convict him of aiding and abettingmurder; [307 Conn. 761]and (2) that he did not knowingly waive his right to a jury trial. We agree with the defendant's first claim but reject his second claim. Therefore, we

[59 A.3d 224]

reverse the judgment in part with respect to the defendant's murder conviction.

In its memorandum of decision, the panel unanimously found the following facts, none of which the defendant challenges on appeal. “[The victim] James Caffrey lived in the second floor apartment of 323 Hill Street in Waterbury with his girlfriend Samantha Bright and one other roommate. James' mother, Emilia Caffrey, lived in the first floor apartment. In the late afternoon of Saturday, October 26, 2008, James Caffrey and Bright had five visitors, including Tamarius Maner, in their living room. Maner had a clear view of the bedroom from where he was seated in the living room. Maner purchased a small amount of marijuana from James Caffrey and paid him some money, which Caffrey put in the bedroom. Caffrey kept the marijuana in the bedroom. Caffrey remarked that he had saved $500 for a child that he was expecting with Bright.

“At about that time, Maner and the defendant lived next door to each other in Bridgeport and had done drug business together. Maner contacted the defendant by cell phone during the evening of Saturday, October 26. Shortly after midnight on Sunday, October 27, Maner and the defendant drove from Bridgeport to Waterbury to go to James Caffrey's apartment. They were carrying loaded handguns.

“Just after 1 a.m., the doorbell to the second floor apartment at 323 Hill Street rang and Caffrey answered the door. A conversation of a few seconds with ... Caffrey ensued. Maner then shot Caffrey in the face from a distance of one to three feet with a .45 caliber handgun. Caffrey fell in the hallway in a pool of blood and died from the gunshot wound to the head.

[307 Conn. 762]“Maner and the defendant walked past Caffrey and into a bedroom. There the defendant put a gun to Bright's head and asked: ‘Where is everything?’ Bright understood the question to inquire about money and drugs. Bright referred them to the top dresser drawer. Maner opened it and threw its contents on the bedroom floor.

“At about that time, they heard the screams of Emilia Caffrey, who had heard the shot and discovered her son lying in the second floor hallway. The defendant told Bright to keep her head down and face toward the wall. Maner and the defendant then ran into the kitchen, which Emilia Caffrey had also entered in order to call 911. Maner, who was standing at the stove, fired one shot at [Emilia] Caffrey and missed. The defendant was standing at the window.

“Maner and the defendant then ran out of the kitchen, pushing [Emilia] Caffrey to the floor as they left. They returned to their car and arrived back in Bridgeport around 2 a.m.

“Police interviews of some of the Waterbury visitors to James Caffrey's apartment on the afternoon of October 26 led to the identity of Maner, who was also known in Bridgeport as ‘T’ or ‘Trigger.’ Further police investigation, including analysis of Maner's cell phone calls, brought police to an apartment in Bridgeport where they found the defendant. The defendant voluntarily returned to Waterbury with the police and told them that he had not left Bridgeport on the night in question. When confronted with the fact that his cell phone records showed him in Waterbury during the time of the crimes, the defendant put his head down for a minute and then indicated that he had nothing more to say. A search, pursuant to a warrant, of his apartment in Bridgeport revealed a suitcase containing the [307 Conn. 763]defendant's clothes, a loaded .45 caliber pistol, and a

[59 A.3d 225]

sock containing sixty-one rounds of ammunition.”

I

We begin with the defendant's claim that there was insufficient evidence to convict him of aiding and abetting murder. Specifically, the defendant claims that the state presented no evidence to establish that he intended to kill James Caffrey, as required under the state's accessory theory of liability. The defendant contends that the evidence established only that he intended to steal money from Caffrey and Bright and that he accompanied Maner on the night of the homicide.

In considering the defendant's challenge, we undertake the same limited review of the panel's verdict, as the trier of fact, as we would with a jury verdict. See State v. Crespo, 246 Conn. 665, 676, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999); State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). In reviewing a sufficiency of the evidence claim, we construe the evidence in the light most favorable to sustaining the verdict, and then determine whether from the facts so construed and the inferences reasonably drawn therefrom, the trier of fact reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Robertson, 254 Conn. 739, 783, 760 A.2d 82 (2000). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier's] verdict of guilty.” (Internal quotation marks omitted.) Id. In the present case, we conclude that, despite this deferential standard, there was insufficient evidence to convict the defendant [307 Conn. 764]of murder under the accessory theory advanced by the state.

Because the present case involves sufficiency of proof to assign criminal responsibility to the defendant for a fatal injury inflicted by another, it is useful to be mindful of the substantive differences between the three theories under which such vicarious liability may arise: felony murder under § 53a–54c; Pinkerton liability; ¹ and accessorial liability under § 53a–8. The defendant was found guilty of felony murder and accessorial liability; he was not charged with liability under the Pinkerton doctrine.

The felony murder statute “reflects a legislative determination that certain crimes, such as robbery, create a foreseeable risk of death to a victim of, or bystander to, the crime and, accordingly, imposes criminal liability not only on the person who caused the death, but also on any other participant to the underlying felony.” (Emphasis added.) State v. Apodaca, 303 Conn. 378, 393, 33 A.3d 224 (2012). “[A] defendant may be convicted of felony murder even if neither he nor his confederates had any intent to kill ....” (Emphasis added.) State v. Coltherst, 263 Conn. 478, 494, 820 A.2d 1024 (2003).

“[U]nder the Pinkerton doctrine ... a defendant may not be convicted of murder unless one of his criminal associates, acting foreseeably and in furtherance of the conspiracy, caused the victim's death with the intent to do so.... Thus ... under Pinkerton, a coconspirator's intent

[59 A.3d 226]

to kill may be imputed to a defendant who does not share that intent ....” (Citation omitted; emphasis added; internal quotation marks omitted.) [307 Conn. 765]Id. The rationale for liability under this theory is that “[w]hen the defendant has played a necessary part in setting in motion a discrete course of criminal conduct ... he cannot reasonably complain that it is unfair to hold him vicariously liable ... for the natural and probable results of that conduct that, although he did not intend, he should have foreseen.” ² (Emphasis added; internal quotation marks omitted.) State v. Martinez, 278 Conn. 598, 614, 900 A.2d 485 (2006).

Finally, “[t]o 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.” (Emphasis added; internal quotation marks omitted.) State v. Sargeant, 288 Conn. 673, 680, 954 A.2d 839 (2008). Thus, “[u]nlike coconspirator liability under Pinkerton ... accessorial liability pursuant to § 53a–8 requires the defendant to have the specific mental state required for the commission of the substantive crime.” (Citation omitted.) State v. Martinez, supra, 278 Conn. at 615, 900 A.2d 485. “[A]ccessorial liability is not a distinct crime, but only an alternative means by which a substantive crime may be committed.... Consequently, to establish a person's culpability as an accessory to a...