State v. Delgado

• Decision Date: 09 February 1999
• Docket Number: (SC 15632)
• Citation: 725 A.2d 306,247 Conn. 616
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. MELVIN DELGADO

247 Conn. 616

725 A.2d 306

STATE OF CONNECTICUT v. MELVIN DELGADO

(SC 15632)

Supreme Court of Connecticut.

Argued November 4, 1998.

Officially released February 9, 1999.

Callahan, C. J., and Berdon, Katz, McDonald and Peters, Js. Theresa M. Dalton, assistant public defender, for the appellant (defendant).

Ellen Jawitz, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and John F. Fahey, assistant state's attorney, for the appellee (state).

Opinion

CALLAHAN, C. J.

The defendant, Melvin Delgado, appeals from judgments of conviction, rendered after a jury trial, as an accessory to murder in violation of General Statutes §§ 53a-8 and 53a-54a;¹ and of possession of a firearm during the commission of a class A, B or C felony in violation of General Statutes § 53-202k.² On appeal,³ the defendant claims that the trial court improperly: (1) determined that the evidence presented at trial was sufficient to support a conviction as an accessory to murder; (2) instructed the jury on the dual intent element of accessorial liability; (3) marshaled the state's claims and evidence in its instructions; (4) deprived the defendant of his right to counsel under the sixth amendment to the United States constitution; and (5) rendered judgment convicting the defendant of a separate crime under § 53-202k. We affirm the trial court's judgment of conviction as an accessory to murder in violation of §§ 53a-8 and 53a-54a, and vacate the judgment of conviction of possession of a firearm during the commission of a class A, B or C felony in violation of § 53-202k.

The jury reasonably could have found the following facts. On the evening of December 20, 1994, the defendant, a member of the Los Solidos street gang, was socializing with friends at a party in an apartment in Hartford's Dutch Point housing project (Dutch Point). A fellow Los Solidos gang member, identified only by the nickname "Cheesecake," also was present at the party. Late in the evening, the defendant, who was carrying a nine millimeter pistol, left the party and went to meet Cheesecake at a nearby store located at 63 Norwich Street. Cheesecake was armed with a .38 caliber revolver.

Shortly after midnight, while he was walking from Dutch Point to the store, the defendant encountered the victim, Anthony Battle, near the intersection of Stonington and Norwich Streets. The defendant recognized the victim as a member of Twenty Love, a rival gang with which the Los Solidos gang was at war. The defendant approached the victim from the Stonington Street side of the intersection, and the two men engaged in a heated argument. The defendant, who at this time was approximately fifteen to twenty feet from the victim, drew his pistol and began firing at the victim. While the defendant was shooting at the victim, Cheesecake, who was standing at the Norwich Street side of the intersection, also opened fire on the victim. The defendant and Cheesecake continued to shoot at the victim as he attempted to flee. After firing thirteen rounds, the defendant watched as the wounded victim climbed a fence and escaped into a nearby park. Thereafter, the defendant and Cheesecake left the scene separately.

Within minutes, two Hartford police officers arrived at the scene of the shooting and found the victim lying on the ground in intense pain. He had been shot twice, once in the back of the right leg and once in the back of the right arm. The victim told the officers that he had been shot by members of Los Solidos and that at least one of the shooters was Hispanic. The victim was transported to Hartford Hospital, where he subsequently died from loss of blood caused by his gunshot wounds.

I

With respect to the murder charge, the defendant's first claim is that the evidence presented at trial was not sufficient to support a determination that he possessed the dual intent required for accessorial liability under § 53a-8, namely, the intent to aid the principal and the intent to commit the underlying offense. We disagree.

In reviewing a sufficiency of the evidence claim, "we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); see State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. State v. Sivri, supra, 132-33. The trier may "draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) Id. "As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. State v. Sivri, supra, 134. 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 jury's verdict of guilty. Id." (Internal quotation marks omitted.) State v. DeJesus, supra, 196.

Section 53a-8 (a), the statutory provision that governs accessorial liability, provides in relevant part that "[a] person, acting with the mental state required for commission of an offense, who ... intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct... as if he were the principal offender." We previously have stated that "a conviction under § 53a-8 requires proof of a dual intent, i.e., 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; internal quotation marks omitted.) State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987). In other words, in order for the defendant to be convicted of murder under an accessory theory of liability, the state was required to prove beyond a reasonable doubt that the defendant (1) intended to aid Cheesecake in killing the victim and (2)intended to kill the victim. See State v. Diaz, 237 Conn. 518, 543, 679 A.2d 902 (1996); State v. Foster, supra, 525-26.

A

The defendant contends that the evidence was not sufficient to support a finding that he intended to aid Cheesecake in the commission of murder because, at the time that the defendant was shooting at the victim, he was unaware that someone else was shooting at the victim as well.

"Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there." State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967). "Since under our law both principals and accessories are treated as principals... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [murder] charged or did some act which forms ... a part thereof ... then the convictions must stand." (Internal quotation marks omitted.) State v. Diaz, supra, 237 Conn. 543. "Therefore, as we have stated in the past, the terms accessory and principal refer to the alternate means by which one substantive crime may be committed." (Internal quotation marks omitted.) State v. Roseboro, 221 Conn. 430, 437 n.6, 604 A.2d 1286 (1992).

In a statement given to the police on the night of his arrest, the defendant stated: "I heard another gun buckin at the same time like over by the store (CBL STORE 63 Norwich St.) and I heard like 5 or 6 shots. I remember when we was buckin (shooting) at the black boy he was like running across the street (Stonington St.) towards the park (Colt's Park) and I think one of my shots hit him cause like when I was buckin (shooting) he fell over the fence but Miguel `Cheese Cake' could have hit him too cause we was both buckin at the same time, but I think I got him!!" (Emphasis added.) From the defendant's account of the shooting, the jury reasonably could have inferred that, at the time that the defendant was firing the thirteen rounds at the victim, he was aware that Cheesecake also was shooting at the victim. Although the evidence did not reveal whether it was the defendant or Cheesecake who had fired the shot that fatally injured the victim, the jury reasonably could have determined that there was sufficient concert of action between the defendant and Cheesecake to support the accessory allegation. State v. Diaz, supra, 237 Conn. 543. As such, there was sufficient evidence to support the jury's conclusion that the defendant had intentionally contributed to the victim's murder. See id.

B

The defendant also maintains that the evidence was insufficient to support a finding that he satisfied the second prong of the dual intent requirement, namely, that he intended to kill the victim. We consistently have concluded that "the specific intent to kill may be proven solely by circumstantial evidence, as long as that evidence establishes beyond a reasonable doubt that the defendant had the conscious objective to take the life of another.... The defendant's intent to kill, therefore, may be inferred from evidence of the defendant's use of a deadly weapon, the manner in which the weapon was used, and the nature and...