State v. Boykin

• Decision Date: 19 May 1992
• Docket Number: No. 9653,9653
• Citation: 609 A.2d 242,27 Conn.App. 558
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Thomas BOYKIN.

Page 242

609 A.2d 242

27 Conn.App. 558

STATE of Connecticut v. Thomas BOYKIN.

No. 9653.

Appellate Court of Connecticut.

Argued Jan. 8, 1992.

Decided May 19, 1992.

[27 Conn.App. 559] Neal Cone, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Paul J. Ferencek, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and John Waddock, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and FOTI and LAVERY, JJ.

LAVERY, Judge.

The defendant, Thomas Boykin, was charged by information with aiding another person to engage in the sale of narcotics in violation of General Statutes §§ 53a-8 ¹ and 21a-278(b), ² and conspiracy to sell narcotics in violation of General Statutes §§ 53a-48(a) ³ and 21a-278(b). A jury convicted the defendant on both counts and he was sentenced to concurrent fourteen year prison terms suspended after ten years with three years probation. In this appeal, the defendant claims that the trial court improperly (1) failed to grant a motion for judgment of acquittal on both the conspiracy and accessory counts, (2) instructed the jury on the overt act element of the conspiracy charge, and (3) instructed the jury that a reasonable doubt was not a doubt raised by ingenuity of counsel. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On June 2, 1989, the New Haven police department received a complaint that drug dealing was taking place on Arthur Street, a narrow one-way street. Evelyn Harris complained that drugs were being sold in front of 37 Arthur Street, directly across the street from her house. In response to the complaint, Officers Sam Cotto and Vincent Riccio drove a marked patrol car past 37 Arthur Street at about 9:30 p.m. The officers observed Arnold Green and the defendant at that location. Green was sitting on a milk crate in the driveway near the street, and the defendant was five to fifteen feet away The officers observed three transactions within forty-five minutes. The first involved a black man who approached Green and engaged in a brief conversation with him. Green got off the crate, walked to nearby bushes, retrieved a blue packet and handed the item to the man in exchange for money. The unidentified man walked away.

                from him pacing back and forth, looking up and down the street.   The officers drove by and observed Green and the defendant conversing.   Cotto and Riccio decided to conduct a surveillance from inside the Harris house to see if Green and the defendant were, in fact, selling drugs.   They told two backup officers, Marvin Marable and Michael Quinn, of their plan and then entered the Harris house through a rear door.   They set up surveillance from a front room window facing 37 Arthur Street.   Through the window, Cotto and Riccio had an unobstructed view from a distance of fifty feet.   The area was lighted by a street light in front of 37 Arthur Street
                

The second transaction occurred when a black or Hispanic man approached Green. Green went to the same bush, retrieved a blue packet and gave it to the man in exchange for money. The defendant was with Green during the transaction and took the money from Green and placed it in his pocket. The unidentified purchaser left.

After they observed the two transactions, the officers decided to arrest Green and the defendant. They radioed officers Michael Quinn and James Carter, provided a description of the two suspects and told the officers to position themselves for an arrest. They then radioed Marable in another vehicle and asked him to drive his marked police vehicle past 37 Arthur Street so they could gauge the suspects' reactions, and ascertain their escape route. When Marable's cruiser entered Arthur Street, the defendant immediately shouted to Green. Green got off the crate, grabbed an object from behind the bush and ran to the rear of the house. Once Marable's vehicle had left Arthur Street, the defendant shouted something to Green, who reappeared and again sat on the crate.

When Green returned from the rear of the house, an Hispanic female approached him and spoke with him in the defendant's presence. Green again went to the rear of the house. While Green was in the rear of the house, the defendant and the unidentified female continued their conversation. Green came back with a blue packet which he gave to the female in exchange for money. Again Green handed the money to the defendant who placed it in his pocket. The female left.

At this point, Cotto and Riccio radioed to the other officers to move in for the arrest. Cotto and Riccio then left the Harris house through the back door and ran to the street, where they arrested Green. The defendant immediately walked up Arthur Street in a northern direction, where he was seized by Quinn and Carter. After Cotto identified the defendant, he was placed under arrest. The officers searched both Green and the defendant. Green had $115, and the defendant had $35.

Marable searched the rear of 37 Arthur Street where Green had gone with the object he had taken from behind the bush. Near some trash, Marable found a clear plastic bag containing fifty blue glassine envelopes filled with a white powdery substance. He subsequently handed the bag to Cotto. A field test and a later laboratory test revealed that each of the packets contained cocaine.

I SUFFICIENCY OF THE EVIDENCE

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal on both the conspiracy and the accessory charges. The insufficiency of the evidence claims can be divided into three parts: (1) the state failed to prove an agreement between Green and the defendant; (2) the state failed to prove the commission of an overt act in furtherance of the conspiracy subsequent to the formation of the alleged agreement; and (3) the state failed to prove that the defendant had the requisite specific intent (a) to conspire with Green to sell cocaine, (b) to We utilize a two-part analysis when reviewing a challenge to the sufficiency of evidence. State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991); State v. Bewry, 26 Conn.App. 242, 245, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992). First, we review the evidence in the light most favorable to sustaining the verdict. State v. Henning, supra. We then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence establishes guilt beyond a reasonable doubt. Id. In the review process, the probative force of the evidence is not diminished if it consists in whole or part of evidence that is circumstantial rather than direct. Id., 220 Conn. at 420-21, 599 A.2d 1065; State v. Montanez, 219 Conn. 16, 19-20, 592 A.2d 149 (1991).

aid Green in that venture, and (c) to commit the substantive crime of selling cocaine.

" '[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt "does not require a court to ask 'itself whether it believes that the evidence ... established guilt beyond a reasonable doubt.' " (Emphasis in original.) (Citation omitted.) Jackson v. Virginia, [443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979).] "Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S.Ct. 1620, 1624-25, 32 L.Ed.2d 152 (1972) ]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon 'jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law." (Emphasis in original.) (Footnotes omitted.) Jackson v. Virginia, supra, [443 U.S. at] 319 .' State v. Scielzo, 190 Conn. 191, 197-98, 460 A.2d 951 (1983)." State v. Stellato, 10 Conn.App. 447, 452, 523 A.2d 1345 (1987).

A

The defendant first asserts that the state failed to prove the existence of an agreement, which is a necessary element in the crime of conspiracy. ⁴ The existence of a formal agreement between the parties, however, need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. State v. Lewis, 220 Conn. 602, 607, 600 A.2d 1330 (1991); State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied; 475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986); State v. Lynch, 21 Conn.App. 386, 392, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. State v. Vessichio, supra. Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words "we have an agreement." State v. Stellato, supra, 10 Conn.App. at 453, 523 A.2d 1345. Indeed, a conspiracy can be inferred from the conduct of the accused. State v. Lynch, supra, 21 Conn.App. at 400, 574 A.2d 230.

Finally, "[t]he size of a defendant's role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends." United States v. Vanwort, 887 F.2d 375, 386 (...