State v. Bond, 16306

• Decision Date: 23 June 1998
• Docket Number: No. 16306,16306
• Citation: 713 A.2d 906,49 Conn.App. 183
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Dante BOND.

Page 906

713 A.2d 906

49 Conn.App. 183

STATE of Connecticut v. Dante BOND.

No. 16306.

Appellate Court of Connecticut.

Argued Feb. 17, 1998.

Decided June 23, 1998.

Glenn W. Falk, Special Public Defender, with whom, on the brief, was Alison Siegler, Law Student Intern, for appellant (defendant).

Linda N. Howe, Assistant State's Attorney, with whom, on the brief, were Jonathan C. Benedict, State's Attorney, Donald A. Browne, former State's Attorney, Stephen J. Sedensky, Assistant State's Attorney, and Megan McLoughlin, Certified Legal Intern, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and SCHALLER and DALY, JJ.

DALY, Judge.

The defendant, Dante Bond, appeals from the judgment of conviction, following a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) ¹ and 53a-54a (a) ² and two counts of assault in the second degree in violation of General Statutes § 53a-60 (a)(3). ³ The defendant claims that the trial court improperly (1) instructed the jury regarding the intent required for a conviction of assault in the second degree as an accessory, (2) questioned a state's witness about the role of a coconspirator, (3) instructed the jury regarding certain activity as part of a criminal conspiracy, (4) failed to grant the motion for judgment of acquittal due to insufficient evidence as to the conspiracy to commit murder charge and (5) failed to grant the motion for judgment of acquittal due to insufficient evidence as to the counts of reckless assault in the second degree.

The jury reasonably could have found the following facts. On December 14, 1992, Carmen Rosales was asleep in her bedroom with her two children when shooting started outside her apartment at 774 Hallett Street in Bridgeport. She threw herself and her two children on the floor. Her two year old son, Edwin Rosales, was shot in the left leg. Her brother, William Rosario, was asleep in another bedroom in the apartment and was shot in the right leg. Alexander Aponte was outside the building, around the corner on Stillman Street, and died of multiple gunshot wounds.

Officer James Baraja of the Bridgeport police department reported to the corner of Hallett and Stillman Streets at 2:47 a.m. and entered the first floor of the 774 Hallett Street apartment building. The front of this building was littered with shell casings, and the first floor had been riddled with bullets. Baraja discovered Edwin Rosales and Rosario suffering from gunshot wounds. On Stillman Street, Baraja found Aponte's body and more shell casings.

Other police officers who responded to the scene found seventy-seven shell casings. The state forensics laboratory concluded that the casings came from three firearms, one .223 caliber assault type weapon and two nine millimeter caliber semiautomatic weapons. An autopsy revealed that the bullets in Aponte's body were all .223 caliber and consistent with the casings collected from around his body. The physician who performed the autopsy on Aponte concluded that the cause of his death was multiple gunshot wounds.

At trial, Irma Otero testified that early in the morning on December 14, 1992, she was standing three blocks south of the intersection of Hallett and Stillman Streets on the corner of Jane and Hallett Streets. She was talking with a friend when she saw three men wearing black clothing stop in front of 774 Hallett Street and begin shooting at the building. She and her friend hid until the shooting ceased, and, on the way home, they saw the body of Aponte with bullet wounds. Otero's friend alerted the police. Otero believed that Aponte looked like one of the shooters, given his size, black pants, black hooded sweatshirt and black ski mask.

Julio Vasquez testified that he was at Richard Morales' apartment on the evening of December 13, 1992. Vasquez testified that the defendant and Michael Folch entered the apartment and asked Morales where the guns were. The defendant left with an AR-15 rifle ⁴ and Folch took a nine millimeter weapon. They also took a third gun. Vasquez saw Aponte outside in the apartment parking lot waiting for Folch and the defendant.

Vasquez testified that two weeks later he overheard a conversation between the defendant and Folch at Morales' apartment. The defendant said to Morales that what scared him the most was when Aponte looked at him and said, "Why me?"

Greg Syr testified that one day before the incident, he was with Morales in Morales' apartment when the defendant entered and stated that he was having problems with Aponte and wanted to kill him. The defendant then said, "It's either Alex or myself." At 3:30 a.m. on the day of the incident, the defendant went to Morales' apartment and indicated, in the presence of Syr, Vasquez and Miguel Torres, that he "got" Aponte.

Syr also testified that one month after the incident the defendant told Syr that, contrary to what Folch was saying, the defendant had shot Aponte, not Folch. Syr said the defendant used Aponte's gun, an M-16, ⁵ to kill Aponte.

I

In his first claim, the defendant argues that the trial court's instruction on accessorial liability for assault in the second degree was improper because it failed to include reference to the dual intent requirement. The defendant neither requested an instruction on dual intent nor took an exception to the court's instructions. He now seeks Golding ⁶ review.

"The accessory statute, [General Statutes] § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged." (Emphasis in original.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979).

In State v. Foshay, 12 Conn.App. 1, 23-24, 530 A.2d 611 (1987), and State v. Fudge, 20 Conn.App. 665, 670, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990), the trial court considered claims identical to the one presented here. In Foshay, Fudge and the present case, "the trial court read General Statutes § 53a-8 in full to the jury. The Foshay court held that such a claim was not truly of constitutional proportion and accordingly was not reviewable under the [Golding ] doctrine." State v. Fudge, supra, at 670, 569 A.2d 1145. Because Foshay and Fudge are directly on point and controlling, the defendant's first claim is not reviewable. The defendant's claim of improper instruction on accessorial liability is not of constitutional proportion.

II

The defendant premises his second claim on the trial court's intervention in the questioning of Vasquez, a state's witness, and asserts that the trial court deprived the defendant of his right to a fair trial. The defendant challenges the following questioning by the court:

"The Court: And did you feel that Folch was a participant in the killing of Aponte?

"Vasquez: Yes, sir.

"The State: In--His Honor just asked you a question about whether or not you felt Folch was some type of participant in the killing of Aponte and it's your understanding that who shot Aponte?

"Vasquez: Dante Bond."

The defendant raised no objection to either question. After the jury was charged, the defendant requested that the trial court instruct the jury to disregard the state's question and Vasquez' answer concerning who shot Aponte. The state objected and stated that if the trial court was so inclined, it should strike the court's question as well. The defendant did not ask that the court's question be stricken. In response, the trial court instructed the jury, "I've already told you [to] disregard any questions I've asked any witness in the case, including that one ... as to who shot Aponte." The defendant did not object to this instruction.

"Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., art. I § 8; State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 424D, 504 A.2d 1020 (1985). It is the trial court's responsibility to conduct the trial in the atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. State v. Fernandez, supra, at 10, 501 A.2d 1195, quoting Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 86 L.Ed. 680 (1942); State v. Gordon, supra, at 425, 504 A.2d 1020; State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). Particularly in the presence of the jury, which may readily be influenced by a judge's words or conduct, the trial court has an obligation to comport itself in a circumspect and dispassionate manner. Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933); State v. Fernandez, supra, at 12, 501 A.2d 1195; Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982); Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 503, 101 A.2d 500 (1953). The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant's case, or of approbation for the prosecution's. State v. Fernandez, supra, at 12, 501 A.2d 1195; State v. Bember, 183 Conn. 394, 402, 439 A.2d 387 (1981); State v. Echols, supra, at 14, 364 A.2d 225.

"We recognize that a trial court has a discretionary right to intervene in the examination of witnesses in certain circumstances. Such intervention may be necessary to clarify confusing testimony, to restrain an obstreperous witness, or to elucidate a witness's understanding of a question. State v. Fernandez, supra, [198 Conn. at] 12 ; State v. Bember, supra, [183 Conn. at] 402-403 ; State v. Echols, supra, [170 Conn. at] 14 . The court's questioning of a witness is not necessarily improper because it draws attention to the strengths or weaknesses of a party's case. State v. Echols, supra, [at] 14 . However, the court should avoid questioning witnesses in a manner that reflects in any...