State v. Coward
| Decision Date | 30 June 2009 |
| Docket Number | No. 17706.,17706. |
| Citation | 292 Conn. 296,972 A.2d 691 |
| Parties | STATE of Connecticut v. Anthony COWARD. |
| Court | Connecticut Supreme Court |
Lauren Weisfeld, assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, Dennis J. O'Connor, senior assistant state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).
ROGERS, C.J., and NORCOTT, KATZ, PALMER and VERTEFEUILLE, Js.
The defendant, Anthony Coward, appeals1 directly from the judgment of the trial court, rendered after a jury trial, convicting him of two counts of felony murder in violation of General Statutes § 53a-54c and one count each of murder in violation of General Statutes § 53a-54a(a),2 manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3),3 robbery in the first degree in violation of General Statutes § 53a-134(a)(2), burglary in the first degree in violation of General Statutes § 53a-101(a)(1), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48(a)4 and 53a-134(a)(2),5 and conspiracy to commit burglary in the first degree in violation of §§ 53a-48(a) and 53a-101(a)(1). On appeal, the defendant claims that: (1) we should vacate his conviction for manslaughter in the first degree because reckless manslaughter predicated on criminal liability under the doctrine set forth in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946),6 is not a cognizable crime under Connecticut law; (2) the trial court improperly instructed the jury on the concept of consciousness of guilt; and (3) the trial court improperly instructed the jury on the applicable reasonable doubt standard. We affirm the judgment of the trial court.
The record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. On the evening of December 3, 2002, the defendant, Keith Taylor and Maurice Lawrence met in New Haven to discuss a plan to rob Wahied Jerjies, a drug dealer with whom Taylor had had prior dealings. Taylor, who owed an outstanding drug debt to Jerjies, was aware that Jerjies regularly kept large sums of money in his apartment, and suggested that the three men drive to that apartment to rob him.
After discussing the idea in New Haven, the three men subsequently drove to the Mill Pond Village housing complex in East Windsor, where Jerjies lived with his wife, Sara Sedor, and Sedor's daughter. Lawrence, who previously had lived in that same complex, directed the other men to his unoccupied former apartment, where they further discussed their plan to rob Jerjies. During those discussions, Taylor left to retrieve a shotgun from his girlfriend's apartment, which also was located in the Mill Pond Village complex. When he returned, Taylor described the plan for the robbery to the others, explaining that Lawrence would serve as a lookout, while Taylor and the defendant would go inside Jerjies' apartment and "use force" to take what they wanted. Taylor directed the defendant to bring a baseball bat that Lawrence had produced from his apartment, while Taylor would use the shotgun that he had obtained. Taylor indicated to the others that the shotgun had only one shot, that he was going to use it if necessary and that people could get hurt if Jerjies or Sedor resisted.
Thereafter, the three men went to Jerjies' apartment, where they were met at the door by a woman who indicated that Jerjies was not home. They decided to wait for Jerjies nearby and, after Jerjies returned, Taylor and the defendant went to the front door of Jerjies' apartment while Lawrence hid by bushes located at the side of the apartment. When Jerjies answered the door, Taylor pointed the shotgun at Jerjies' chest and forced his way into the apartment. After following Taylor inside, the defendant encountered Sedor in the living room, at which point he began swinging his baseball bat at her in order to keep her away from him.
Subsequently, Taylor directed Lawrence to search the apartment for valuables, and also directed the defendant to grab Jerjies' Sony PlayStation II video game system. After Lawrence found a bag of marijuana, the defendant and Lawrence ran from the apartment through a rear screen door and, as they fled back to Taylor's car, they heard a gunshot ring out from inside the apartment. Lawrence and the defendant returned to Taylor's car and, approximately twenty minutes later Taylor returned to the car with a "splatter of blood on his clothes." Taylor indicated that he had dumped the shotgun in a nearby sewer, and that he had left the baseball bat in the apartment. Thereafter, the three men drove back to New Haven to drop off the defendant, who left the car in possession of the Sony PlayStation II, some marijuana and $200 in cash from the robbery.7
After receiving a telephone call from one of Jerjies' neighbors the next day, Jeffrey Capen, an East Windsor police officer, responded to the crime scene and found both Jerjies and Sedor dead in the apartment. Investigators discovered the baseball bat in the apartment, but subsequent testing did not reveal any trace of human blood on the bat. Investigators also discovered various broken pieces of the shotgun near Sedor's body, including two wooden pieces of the shotgun fore-ends, a metal spring and a U-shaped piece of metal that was entangled in Sedor's hair. Investigators also subsequently located the wooden stock and barrel of the shotgun, which bore traces of human blood, in the sewer in which Taylor had discarded it. Edward Jachimowicz, a state firearms examiner, testified that it would have taken "a tremendous amount of force" to break the shotgun apart in such a manner. Autopsies subsequently revealed that Jerjies had died from a shotgun wound to his neck that "obliterated ... [it] from its normal anatomic function," and that Sedor had succumbed to extensive blunt force trauma to her head.
Taylor and Lawrence subsequently were arrested in connection with the murders, and the defendant surrendered voluntarily. The state charged the defendant with capital felony in violation of General Statutes §§ 53a-54b(7) and 53a-8(a), two counts of murder in violation of § 53a-54a(a), two counts of felony murder in violation of § 53a-54c, robbery in the first degree in violation of § 53a-134(a)(2), burglary in the first degree in violation of § 53a-101(a)(1), conspiracy to commit robbery in the first degree in violation of §§ 53a-48(a) and 53a-134(a)(2), and conspiracy to commit burglary in the first degree in violation of §§ 53a-48(a) and 53a-101 (a)(1). The defendant was tried before a jury, which returned a verdict convicting him of all charges except for the capital felony count and the murder count in connection with Sedor's death. The defendant was, however, convicted of the uncharged lesser included offense of manslaughter in the first degree in connection with Sedor's death. The trial court sentenced the defendant to a total effective sentence of sixty years imprisonment. This direct appeal followed.
On appeal, the defendant claims that: (1) we should vacate his conviction of manslaughter in the first degree because reckless manslaughter predicated on Pinkerton liability is not a cognizable crime under Connecticut law; (2) the trial court improperly instructed the jury on the concept of consciousness of guilt in a manner that bolstered the state's case, thereby denying the defendant the right to a fair trial; and (3) the trial court's instruction on the applicable reasonable doubt standard violated his right to due process of law by diluting the state's burden of proof. We address each claim in turn.
The defendant first claims that his conviction of manslaughter in the first degree should be vacated because that offense, when predicated on Pinkerton liability, is not a cognizable crime under Connecticut law. The following additional facts and procedural history are relevant to our resolution of this claim. Count three of the information originally charged the defendant with the murder of Sedor on a theory of accessorial liability pursuant to §§ 53a-54a(a) and 53a-8(a).8 Prior to submitting the case to the jury, however, the state abandoned its theory of accessorial liability under § 53a-8(a) in favor of a theory premised exclusively on vicarious liability under Pinkerton v. United States, supra, 328 U.S. 640, 66 S.Ct. 1180.9 The defendant was aware of this change in the state's theory of the case. Nevertheless, the defendant submitted a written request to charge to the trial court, expressly requesting that the court instruct the jury on the lesser included offense of manslaughter in the first degree with respect to Sedor's death. The trial court engaged in an on the record review of both the state's new theory of the case and the defendant's request to charge prior to instructing the jury on either issue, and the defendant did not raise any objection at that time, nor did he express any concern that his requested charge potentially conflicted with the theory of Pinkerton liability upon which the state was now relying.10 Accordingly, the trial court instructed the jury on both issues. The jury subsequently acquitted the defendant of the charge of murder with respect to Sedor's death, but convicted him of the lesser included offense of manslaughter in the first degree. This appeal followed.
The defendant concedes on appeal that the present claim was not preserved at trial, but nevertheless seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),11 and the plain error doctrine. See Practice Book § 60-5. We conclude that the defendant's claim is not reviewable under Golding and that the trial court did not commit plain error.
With respect to Golding review, the defendant concedes that he induced12 the...
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... ... Additionally, both our Supreme Court and this court have concluded that, regardless of whether the claim raised on appeal is of constitutional magnitude, Golding review is unavailable if an appellant induced the error at issue. See, e.g., State v. Coward, 292 Conn. 296, 305, 972 A.2d 691 (2009) ("we have refused to review claims of induced error under Golding "); State v. Cruz, 269 Conn. 97, 107, 848 A.2d 445 (2004) ("the defendant is not entitled to [ Golding ] review of his claim of induced impropriety because he requested the very jury ... ...
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