State v. Ford, 14873

Decision Date09 August 1994
Docket NumberNo. 14873,14873
Citation646 A.2d 147,230 Conn. 686
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Eddie FORD.

Jacqueline J. Footman, Asst. State's Atty., with whom, on the brief, were Michael Dearington State's Atty., and James G. Clark, Asst. State's Atty., for appellant (State).

Robert G. Golger, Sp. Public Defender, with whom, on the brief, was Howard T. Owens, Jr., Bridgeport, for appellee (defendant).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

CALLAHAN, Associate Justice.

The defendant, Eddie Ford, was convicted after a jury trial of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), 1 robbery in the second degree in violation of General Statutes § 53a-135(a)(1), 2 and tampering with a witness in violation of General Statutes §§ 53a-151 3 and 53a-8. 4 He was sentenced by the trial court to a term of imprisonment of twenty years for robbery in the first degree, ten years for robbery in the second degree to run concurrently with his first sentence, and five years for tampering with a witness to run consecutively with his other sentences.

The defendant appealed from the judgment of conviction to the Appellate Court. The Appellate Court affirmed the judgment with respect to the conviction of robbery, but a divided court reversed his conviction of tampering with a witness because the majority determined that it had been based on insufficient evidence. State v. Ford, 33 Conn.App. 143, 634 A.2d 1188 (1993). We granted certification limited to the following question: "Did the Appellate Court properly conclude that there was insufficient evidence to convict the defendant of the crime of tampering with a witness, [in violation of] General Statutes §§ 53a-151 and 53a-8?" State v. Ford, 228 Conn. 918, 636 A.2d 849 (1994).

The details of the incident that led to the defendant's conviction are set forth in the opinion of the Appellate Court; State v. Ford, supra, 33 Conn.App. at 145, 634 A.2d 1188; and may be briefly summarized as follows. On January 30, 1991, the defendant and a companion entered Store 24, located on Broadway Street in New Haven. The defendant placed an item on the counter, pointed a knife at the store clerk, Carlos Robles, and ordered him to open the cash register. When Robles had difficulty opening the register, the defendant handed the knife to his companion, who walked around the counter and threatened to kill Robles if he did not open the register quickly. Becoming impatient, the defendant grabbed the register from the counter and fled the scene. Id.

Regarding the charge of tampering with a witness, Robles testified that he originally had been scheduled to be called by the state to testify in the defendant's trial on Thursday, June 4, 1992. He also testified that on June 1, 1992, he had received three or four telephone calls in which the callers had threatened that he would be a "dead man" if he testified "on Thursday." One of these calls was a collect call for which he had accepted the charges. Robles stated that he had not recognized the collect caller's voice and did not recall the name given by the operator who had handled the collect call, but that he was certain the name was not that of the defendant.

The collect call to Robles was traced to a telephone located in the cellblock at the New Haven community correctional center where the defendant was confined. A captain at the correctional center testified that the defendant and approximately nineteen other inmates had had access to the telephone in the cellblock at the time that the collect call had been made. He further testified that the telephone in the cellblock is intended for inmate use and can be used only for outgoing collect calls. The rules of the correctional center require an inmate to register with a correctional officer before using the telephone in the cellblock, and a correctional officer ordinarily records in a daily log the inmate's name, cell number and the time the person begins and ends the telephone call. The log is only a "partial record," 5 however, as the correctional officers may not record each and every telephone call because of their need to attend to other duties that may divert their attention away from the inmates' use of the telephone. The captain also testified that no collect call to Robles had been recorded in the correctional officer's log book on June 1, 1992.

The information charged the defendant with two counts of tampering with a witness in addition to the two robbery charges. Count three of the information charged the defendant with tampering relating to an alleged threat by the defendant directed to his former girlfriend. Count four of the information charged tampering relating to the collect call to Robles. At trial, the state did not attempt to prove that the defendant actually had made the threatening telephone call to Robles. Rather, the state argued that the defendant had caused the threatening call to be made by another person. After instructing the jury on count three of the information and explaining the charge of tampering with a witness under § 53a-151, the trial court informed the jury that those same instructions also applied to count four of the information. As to count four, however, the court also instructed the jury on accessory liability under § 53a-8. 6 The jury returned a verdict of guilty on the two robbery counts and on the tampering with a witness charge that related to Robles. The defendant was acquitted of the charge of tampering relating to his former girlfriend contained in count three.

The defendant appealed to the Appellate Court, claiming that his conviction of both robbery in the first degree and robbery in the second degree violated his privilege against double jeopardy, that there was insufficient evidence to convict him of tampering with a witness, and that there was insufficient evidence to support a jury charge of tampering with a witness on the theory of accessory liability. 7 The Appellate Court concluded that there was no double jeopardy violation as to the robbery counts. The court reversed the defendant's conviction of the tampering charge, however, concluding that there was no evidence that the defendant himself had made the telephone call to Robles and that the jury should not have been instructed on accessory liability because, in its view, the evidence was insufficient to support a guilty verdict of accessory liability for tampering with a witness. State v. Ford, supra, 33 Conn.App. at 151, 634 A.2d 1188. The state conceded in the Appellate Court, and in this court, that it had failed to prove that the defendant personally had made the telephone call in question. The only issue, therefore, is whether there was sufficient evidence for the jury to convict the defendant as an accessory of tampering with a witness.

In reviewing a jury verdict that is challenged on the ground of insufficient evidence, we employ a two part analysis. " 'We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt.' " State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991), quoting State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990); State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984); State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); State v. Ruiz, 171 Conn. 264, 276-77, 368 A.2d 222 (1976). The evidence must be construed in a light most favorable to sustaining the jury's verdict. State v. Carter, supra, 196 Conn. at 44, 490 A.2d 1000. It is within the province of the jury to draw reasonable and logical inferences from the facts proven. Id.; State v. Williams, 169 Conn. 322, 336, 363 A.2d 72 (1975). The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); State v. Carter, supra, 196 Conn. at 44-45, 490 A.2d 1000; State v. Gabriel, 192 Conn. 405, 425, 473 A.2d 300 (1984); State v. Gonski, 155 Conn. 463, 468, 232 A.2d 483 (1967); State v. Hayes, 127 Conn. 543, 555, 18 A.2d 895 (1941). Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are "so unreasonable as to be unjustifiable." State v. Hayes, supra, 127 Conn. at 555, 18 A.2d 895.

" 'While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.' " State v. Adams, 225 Conn. 270, 276-77, 623 A.2d 42 (1993), quoting State v. Stanley, 223 Conn. 674, 678, 613 A.2d 788 (1992). Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984). "But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition.... Emphasis needs to be placed on the distinction between the word reasonable and the word possible.... Proof of guilt must exclude every reasonable supposition of innocence ... [while a] mere possible hypothesis of innocence will not suffice." (Citations omitted; internal quotation...

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