State v. Floyd

• Decision Date: 25 July 2000
• Docket Number: (SC 15432)
• Parties: STATE OF CONNECTICUT v. ERIC FLOYD
• Court: Connecticut Supreme Court

253 Conn. 700

756 A.2d 799

STATE OF CONNECTICUT v. ERIC FLOYD

(SC 15432)

Supreme Court of Connecticut.

Argued January 18, 2000.

Officially released July 25, 2000.

Norcott, Katz, Palmer, Sullivan and Vertefeuille, JS. Neal Cone, assistant public defender, for the appellant (defendant).

C. Robert Satti, Jr., senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (state).

Opinion

SULLIVAN, J.

The defendant, Eric Floyd, was convicted, after a jury trial, of murder in violation of General Statutes ? 53a-54a (a),¹ commission of a class A, B or C felony with a firearm in violation of General Statutes ? 53-202k,² and criminal possession of a firearm in violation of General Statutes ? 53a-217.³ The defendant claims on appeal that: (1) the trial court improperly instructed the jury on the law of accessory liability; (2) the state violated his constitutional right to due process by failing to disclose impeachment evidence pertaining to the testimony of a state's witness; and (3) the state's attorney improperly made a missing witness argument during closing arguments. We direct the trial court to vacate the defendant's conviction under ? 53-202k,⁴ but otherwise affirm the trial court's judgment.

The jury reasonably could have found the following facts: In the very early morning on January 21, 1994, Alex Delgado and the victim, Jose Avellanet, were walking on Clinton Avenue in Bridgeport when they were approached by the defendant, who held what appeared to be a nine millimeter gun. Delgado had known the defendant for several years. The defendant asked Delgado and the victim what they were doing there. Delgado responded that they "were just walking up the street." As the defendant accused Delgado and the victim of being there to rob him, Delgado was punched in the back of his head and knocked to the ground. Simultaneously, Delgado became aware of the presence of another person, whom he did not recognize and who was not identified during the defendant's trial. Delgado stood up and again told the defendant and the unidentified person that he and the victim were just walking on the street, and then asked the defendant and the unidentified person to let him and the victim leave. The defendant then fired his gun three or four times at the ground near Delgado's feet. Delgado then offered the defendant money and again asked the defendant to let him and the victim leave. The defendant took Delgado's money and jewelry, and the unidentified person took the victim's money. Shortly thereafter, the defendant called out the name "Mickey,"⁵ and two men, who were farther up Clinton Avenue and whom Delgado could not identify, started running down the street toward Delgado and the others. At that point, Delgado turned and ran in the opposite direction. As he was running, he heard three or four gunshots flying and ricocheting around him. Delgado also heard the defendant shouting at him, demanding that he come back and stating that he knew where Delgado lived. Delgado ran around a corner and, at that point, could no longer see the defendant or the victim. Two other eyewitnesses, however, saw the defendant and Mickey fire multiple gunshots at the victim as he lay on the ground, after Delgado ran away.

Later that morning, John Corriss and Bruce Doherty, paramedics with the Bridgeport ambulance service, received an emergency call to proceed to Clinton Avenue between Railroad and State Streets. When they arrived at the location, they found the victim lying on the ground and observed that he had sustained multiple gunshot wounds. The paramedics then determined that the victim had ceased breathing and had no pulse. A subsequent autopsy revealed three gunshot wounds, one of which actually caused the victim's death and another of which potentially was fatal. The medical examiner recovered a nine millimeter bullet from the victim's body. The police recovered four spent nine millimeter cartridge casings, two spent .45 caliber casings and two .45 caliber bullets from the crime scene. Edward McPhillips, a criminalist with the Connecticut State Police Forensic Science Laboratory, specializing in the examination of firearms, testified that he believed that the bullets and casings were fired from at least four different weapons. On April 11, 1994, the Bridgeport police arrested the defendant. The defendant subsequently was charged with the murder of the victim in violation of ? 53a-54a (a), the attempted murder of Delgado in violation of General Statutes ?? 53a-49⁶ and 53a-54a (a), commission of a class A, B or C felony with a firearm in violation of ? 53-202k,⁷ and criminal possession of a firearm in violation of ? 53a-217. At the conclusion of the trial, the jury rendered a verdict of guilty of the crimes of murder, commission of a class A, B or C felony with a firearm, and criminal possession of a firearm, and not guilty of the crime of attempted murder. The trial court sentenced the defendant to a total effective term of imprisonment of fifty-five years.

The defendant appealed his conviction to this court pursuant to General Statutes ? 51-199 (b) (3).⁸ Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the trial court improperly instructed the jury on the law of accessory liability under General Statutes ? 53a-8.⁹ Specifically, the defendant contends, inter alia, that the trial court's instructions reasonably could be understood to permit the jury to treat the defendant as an accessory to murder even though the defendant, himself, allegedly did not act with the requisite intent to kill.¹⁰ The defendant claims that the trial court violated his constitutional due process right to a fair trial by inadequately instructing the jury on the essential elements of the crime of accessory murder.

The defendant concedes that he did not raise this claim at trial, and thus seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id., 239-40. "The first two steps in the Golding analysis address the reviewability of the claim, and the last two steps involve the merits of the claim." State v. Hafford, 252 Conn. 274, 305, 746 A.2d 150 (2000). Because the record is adequate for our review of the defendant's claim, and because the claim implicates the defendant's due process right to a fair trial; see State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989) ("the failure to instruct the jury adequately on each essential element of the crime charged may [result] in a violation of the defendant's due process rights implicating the fairness of his [or her] trial" [internal quotation marks omitted]); we address the merits of the claim.

We begin our analysis with a review of the challenged portions of the trial court's instructions on accessory liability.¹¹ The defendant first challenges the following language: "If the defendant was engaging with that other person in a common purpose to carry out an activity ... he would be guilty of either murder, or any of the lesser included offenses, depending on what you find proven as to the other elements of those crimes. If the injury is caused thereby, even though it was not the defendant's actual gunshot, but that of others that he was acting in concert with ... [i]t is of no consequence that the evidence may not clearly establish that the death of [the victim] was caused by the defendant, or any accomplice .... Everyone is a party to a crime who actually commits it, or who does some act forming part of it, or who directly or indirectly does any act which is part of it. If there is a joint criminal enterprise, each party to it is criminally responsible for all the acts done in furtherance of it.... If any person committed the crime charged, that is, it was the gun of either that person or of another person, and they were acting in concert with each other, you could find the person guilty as charged on an accessorial theory."

After deliberating for a short period of time, the jury requested further instructions on the elements of murder and first degree manslaughter, and the definitions of intent, accessory and reasonable doubt. The court provided the jury with supplemental instructions, a portion of which the defendant challenges. The relevant portion of those instructions provides: "An example that is sometimes given would be two persons rob a bank. One person sits out front in a car, the so-called get away car, the other person goes in and robs the bank. They are both equally responsible for the crime because they participated in it.... The person in the car, as long as he is aware of what the person inside is going to do, and was well aware of it, and cooperated, he's as guilty of the crime of robbery, or whatever, bank robbery, whatever it would be. That's just to get a common example of what we mean by principal and accessory. Participation means not only actively sharing in its final commission, but in doing anything to aid or assist the conduct which causes it.... Everyone is a party to a crime who actually commits it, or does some act forming part of it, or who directly or indirectly does any act which is part of it. If there is a joint criminal enterprise, each party to it is criminally responsible for all acts done in furtherance of it."

The defendant, relying on State v....