State v. Foster

CourtSupreme Court of Connecticut
Citation522 A.2d 277,202 Conn. 520
Decision Date17 March 1987
PartiesSTATE of Connecticut v. Michael FOSTER.

Joseph G. Bruckmann, Asst. Public Defender, with whom, on the brief, were Joette Katz, Public Defender, and Suzanne Zitser, Asst. Public Defender, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., with whom, on the brief, were Kevin McMahon, Asst. State's Atty., and James G. Clark, Deputy Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

SANTANIELLO, Associate Judge.

The defendant, Michael Foster, was convicted in a jury trial of kidnapping in the second degree in violation of General Statutes § 53a-94, assault in the third degree in violation of General Statutes § 53a-61, and being an accessory to criminally negligent homicide in violation of General Statutes §§ 53a-8 and 53a-58. He received an effective sentence of ten years, suspended after six years and five years probation. He claims on appeal that the trial court erred in: (1) instructing the jury on the crime of being an accessory to criminally negligent homicide and in denying his posttrial motions for judgment of acquittal and in arrest of judgment; (2) denying his motion for judgment of acquittal on the third count because there was insufficient evidence to support a conviction; and (3) instructing the jury on the essential elements of kidnapping in the second degree. We find no error.

The jury could reasonably have found the following facts. In June, 1982, the defendant was living with his girlfriend and their child in an apartment near the Martin Luther King School in Hartford. At approximately 7:30 p.m. in the evening of June 16, 1982, while walking near the school, the defendant's girlfriend was robbed and raped by a young black male who held a straight-edged razor to her throat. During the one half hour encounter, she observed her attacker's features and later that night described him and the clothes he was wearing to the police. She also described the assailant, with specific identifiable features, to the defendant.

The defendant, who was "bitter" about the attack, purposely went looking for his girlfriend's attacker. On June 22, 1982 the defendant and a friend, Otha Cannon, after visiting with the defendant's girlfriend for a short period of time, went walking in the vicinity where the rape and robbery had occurred. Near the Martin Luther King School, the defendant saw a man he thought matched the description of the assailant. After telling Cannon "[t]his is the guy who raped my lady," the defendant and Cannon confronted the suspected rapist, later identified as William Jack Middleton, in an alleyway next to the school. Upon being approached, Middleton became frightened and denied any involvement in the robbery or rape. He attempted to flee and a fight ensued; the defendant beat Middleton about the face, eye, chest and head with his fist and a blunt instrument, knocking him to the ground. The defendant, desiring to bring his girlfriend to the scene to make an identification, told Middleton to "wait here" while he left to get her. Although Middleton agreed to wait, the defendant, suspecting that he might flee, gave a knife to Cannon and told him to stay with Middleton to prevent his escape. Thereafter, while waiting for the defendant to return, Middleton, as he was reaching for something in his pocket, apparently charged at Cannon. As Middleton ran toward him, Cannon held out the knife that the defendant had given him and fatally stabbed Middleton. The victim had a straight-edged razor in his pocket which was later identified by the defendant's girlfriend as the one wielded by her assailant during the rape incident.

The defendant was charged, by an information, with one count of second degree kidnapping, one count of second degree assault, one count of first degree manslaughter, one count of carrying a dangerous weapon, one count of hindering prosecution in the first degree, one count of being an accessory to second degree kidnapping, one count of being an accessory to second degree assault, and one count of being an accessory to first degree manslaughter.

Prior to the beginning of the state's case, the trial court granted the defendant's motion to dismiss the count of hindering prosecution in the first degree and a substituted count of hindering prosecution in the second degree. Subsequently, at the close of the state's case-in-chief, the defendant moved for a judgment of acquittal, which the trial court granted as to the count of carrying a dangerous weapon. The state then filed a substitute amended information charging the defendant with kidnapping in the second degree in violation of General Statutes § 53a-94(a), 1 assault in the second degree in violation of General Statutes § 53a-60(a)(2), 2 manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3), 3 being an accessory to kidnapping in the second degree in violation of General Statutes §§ 53a-8 4 and 53a-94, being an accessory to assault in the second degree in violation of General Statutes §§ 53a-8 and 53a-60(a)(2), and being an accessory to manslaughter in the first degree in violation of General Statutes §§ 53a-8 and 53a-55(a)(3).

The court instructed the jury on each count in the substitute amended information. In its charge on the count of manslaughter in the first degree, the court instructed the jury on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide. 5 The court further instructed the jury as to the liability of an accessory.

During its deliberations, the jury requested that the court "explain accessory to manslaughter and lesser degrees." The court then restated the elements of manslaughter in the first and second degrees and the elements of criminally negligent homicide, and accessorial liability. The defendant subsequently took an exception to the court's charge. The jury later asked the court again to explain accessory to manslaughter, at which time the judge reinstructed the jury as to the essential elements of the charge, including the lesser included offenses. The defendant again duly excepted.

The jury found the defendant guilty of kidnapping in the second degree, assault in the third degree in violation of General Statutes § 53a-61, 6 as a lesser included offense of second degree assault, and being an accessory to criminally negligent homicide in violation of General Statutes §§ 53a-8 and 53a-58, 7 as a lesser included offense of being an accessory to first degree manslaughter. Thereafter, the defendant filed motions for acquittal and in arrest of judgment, 8 claiming, inter alia, that there was no such crime as being an accessory to criminally negligent homicide. The trial court denied both motions. The defendant appealed.

I

The defendant first claims that the trial court erred in (1) instructing the jury as to the crime of being an accessory to criminally negligent homicide, and (2) denying his posttrial motions for judgment of acquittal and in arrest of judgment. We disagree.

General Statutes § 53a-8 provides in relevant part that "[a] person, acting with the mental state required for the 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 have previously 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.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979); see State v. Crump, 201 Conn. 489, 495, 518 A.2d 378 (1986); State v. Fleming, 198 Conn. 255, 271, 502 A.2d 886, cert denied, --- U.S. ----, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986); State v. Nardini, 187 Conn. 513, 531, 447 A.2d 396 (1982).

Citing this "dual intent" requirement, and relying on State v. Almeda, 189 Conn. 303, 455 A.2d 1326 (1983), 9 and State v. Beccia, 199 Conn. 1, 505 A.2d 683 (1986), 10 cases which held that persons cannot attempt or conspire to commit an offense that requires an unintended result, the defendant argues that a person cannot be convicted as an accessory to criminally negligent homicide. He reasons that because accessorial liability requires an accused, in aiding a principal, to "intend to commit the offense with which he is charged" and because criminally negligent homicide requires that an unintended death occur, the crime of being an accessory to criminally negligent homicide is a logical impossibility in that it would require a defendant, in aiding another, to intend to commit a crime in which an unintended result occurs.

We find the defendant's argument unpersuasive. The defendant's reliance upon Almeda and Beccia, and the concept of "dual intent," is misplaced. Attempt and conspiratorial liability differ substantially from the liability imposed on an accessory. First, both attempt and conspiracy are offenses in and of themselves, while accessorial liability is not. Attempt is a distinct, inchoate offense and a defendant may be punished for attempting to commit a substantive offense without actually committing the crime. General Statutes §§ 53a-49, 53a-51; see State v. Trent, 182 Conn. 595, 600, 438 A.2d 796 (1981). Likewise, conspiracy has been recognized as being a crime distinct from the commission of the substantive offense. See General Statutes § 53a-48. "We have repeatedly held that conspiracy is a common-law crime and punishable as such under the statutes relating to the punishment of high crimes and misdemeanors. The commission of the substantive offense and a conspiracy to commit it are separate and distinct crimes.... The crime of conspiracy is dependent on clear principles,...

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