State v. Conde

• Decision Date: 25 December 2001
• Docket Number: (AC 21406)
• Citation: 787 A.2d 571,67 Conn. App. 474
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. MARTIN CONDE

67 Conn. App. 474

787 A.2d 571

STATE OF CONNECTICUT v. MARTIN CONDE

(AC 21406)

Appellate Court of Connecticut.

Argued October 15, 2001.

Officially released December 25, 2001.

Lavery, C. J., and Mihalakos and Shea, Js. Kent Drager, senior assistant public defender, for the appellant (defendant).

Robert J. Scheinblum, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Robin Lipsky, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, C. J.

The defendant, Martin Conde, appeals from the judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-54a¹ and 53a-8,² and conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48.³ The defendant claims on appeal that (1) the trial court improperly charged the jury on accessory liability, (2) the evidence adduced at trial was insufficient to support his conviction of murder as an accessory, (3) the evidence adduced at trial was insufficient to support his conviction of conspiracy to commit murder, (4) the court improperly (a) declined to admit a witness' earlier testimony as a prior inconsistent statement and (b) responded incompletely to the jury's request to see a portion of the trial transcript, (5) he was deprived of a fair trial due to prosecutorial misconduct during closing argument and (6) the court improperly instructed the jury regarding his choice not to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Late in the evening on February 15, 1996, the victim, Anthony DeJesus, also known as "Dejon," was standing in his former mother-in-law's kitchen at 40 East Clay Street in Waterbury, when he was gunned down in a hail of bullets fired into the house from points outside. DeJesus was hit by five bullets and was killed by one that pierced his lung. A witness who lived across the street saw three men, who appeared to be Caucasian or Hispanic, running from the crime scene. It later was determined that three different firearms were used in the killing.

DeJesus, at the time of his death, was a member of the Waterbury chapter of the Nietas, a gang with roots in Puerto Rico's prison system. The defendant at that time was the local president of the Nietas. DeJesus had worked for the defendant selling drugs. DeJesus formerly had been a member of the local chapter of the Latin Kings, a larger gang whose members tended to be younger than those of the Nietas. Both gangs operated in the south end of Waterbury and made money selling drugs. The relationship between the two gangs was cooperative rather than antagonistic; at some time prior to the events in question, they had entered into a peace treaty.

About one and one-half weeks prior to DeJesus' killing, several members of the two gangs met at the defendant's home to discuss DeJesus. At the meeting, a conversation took place between the defendant and two high ranking members of the Latin Kings. Those members were Ricky Lespier (Ricky), the president of the Meriden chapter, and Jose Dupree (Red), the Waterbury regional commander.⁴ Ricky and Red expressed anger to the defendant regarding a recent incident in which DeJesus had disrespected Red by going to Red's home and threatening him with a gun in front of his family. Ricky told the defendant that he wanted something done because he believed that DeJesus' actions were wrong. The defendant also expressed anger at DeJesus because DeJesus owed him money.⁵ The defendant said he wanted DeJesus dead, and told Ricky and Red to "[g]o ahead and kill him."

In an information dated March 21, 1997, the defendant was charged with conspiracy to commit murder and murder as an accessory, and was tried before a jury in 1999. Several witnesses testified for the prosecution, including Julio Lugo and Enrique Adorno. Lugo was a member of the Bristol area Latin Kings who had attended the meeting at the defendant's home and heard the entire conversation between the defendant, Ricky and Red. He also was visited on the night of DeJesus' murder by three Latin Kings members who rushed into Lugo's home and told him that they "did Dejon."⁶

Adorno, a former member of the Nietas, knew both the defendant and DeJesus for several years. Adorno was associated with the Nietas for eight years, and his position within the gang was "president of discipline." He testified that that meant that "if something goes wrong with one of the family members, [he would] take care of it." Adorno at one point had sold drugs and collected money, approximately $10,000 weekly, for the defendant. Sometime in the winter of 1996, prior to DeJesus' death, Adorno witnessed the defendant and DeJesus arguing over money, apparently because DeJesus had been selling drugs independently. The defendant told DeJesus that he was tired of waiting for his money. At a party subsequent to DeJesus' murder, the defendant confided in Adorno that he had been involved in the murder and, specifically, that "[he] ... and this Latin King guy Red said to do Dejon."

At the close of the state's evidence, the defendant made an oral motion for a judgment of acquittal on both counts, which was denied by the court. The defense rested without presenting any evidence, then renewed that motion, which was again denied. The jury thereafter returned a verdict of guilty as to each crime, and the court rendered a judgment of conviction. Additional facts will be set forth where necessary to address the issues on appeal.

I

The defendant claims first that the court's charge to the jury on accessorial liability was improper. Specifically, he argues that the court improperly conveyed to the jurors that they could find him guilty as an accessory to murder on the basis of his "nonactions," without instructing further that nonaction could be the basis of a conviction only if the defendant had a legal duty to act. The defendant claims that the court's "misleading and legally erroneous instructions" mandate that he be afforded a new trial on the murder as an accessory charge. We disagree.

The defendant took exception to the charge as given and, therefore, preserved his claim for our review. See Practice Book § 42-16; State v. Faria, 254 Conn. 613, 632, 758 A.2d 348 (2000). "The standard of review for an improper instruction on an element of an offense is whether it is reasonably possible that the jury was misled. State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995); State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994). In determining whether it was indeed reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982).... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978).... The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977) .... The charge must be considered from the standpoint of its effect on the jury in guiding [it] to a proper verdict." (Internal quotation marks omitted.) State v. Gayle, 64 Conn. App. 596, 605, 781 A.2d 383, cert. denied, 258 Conn. 920, 782 A.2d 1248 (2001).

The court charged the jury regarding accomplice liability as to murder as follows: "A person is guilty of the crime of murder either because he is the principal offender under our law, the shooter, or because he is an accessory. I read you the murder statute because under our law, being an accessory is not a crime in and of itself. It is only another way of committing the crime, in this case, murder.

"The criminal responsibility of an accessory is provided by our statutes as follows: A person acting with the mental state required for the commission of an offense, murder, 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.

"I emphasize to you that this statute does not connect those five acts I just mentioned with the word `and,' but separates them by the word `or.' A person is an accessory if he solicits or requests or commands or importunes or intentionally aids another person to engage in conduct that constitutes an offense. Solicit means to order or direct. Importune means to demand or urge. Aid means to assist. And in the course of the definition of assisting, you may take into account the broad range of actions or nonactions which are or may not be assistance in this particular fact pattern. It is for you to decide based upon the facts in this case whether or not under that definition of assistance would be applicable. Assistance also means help or support.

"A person acts intentionally with respect to a result or to conduct when their conscious objective is to cause such a result or to engage in such conduct. Intentionally aid, therefore, means to act in any manner the conscious objective of which is to assist, help or support.

"In order to be an accessory under that statute, ladies and gentlemen, a person must not only solicit or request or command or importune or intentionally aid another person to engage in conduct that constitutes an offense, but he must also commit one of those five acts specified with the same mental state required for the actual commission of the underlying crime and share the same unlawful purpose or purposes in common with the person...