State v. Franklin

• Decision Date: 25 July 2017
• Docket Number: AC 39180
• Citation: 166 A.3d 24,175 Conn.App. 22
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Zachery FRANKLIN

175 Conn.App. 22

166 A.3d 24

STATE of Connecticut

v.Zachery FRANKLIN

AC 39180

Appellate Court of Connecticut.

Argued February 6, 2017

Officially released July 25, 2017

Alice Osedach, assistant public defender, for the appellant (defendant).

Harry Weller, Rocky Hill, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and David A. Gulick, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Keller and Beach, Js.

DiPENTIMA, C.J.

The defendant, Zachery Franklin, appeals from the judgment of conviction, following a jury trial, of murder, in violation of General Statutes § 53a–54a, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a–49 (a) (2) and 53a–134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–8 (a) and 53a–134 (a) (2), and criminal possession of a firearm in violation of General Statutes § 53a–217 (a) (1).¹ On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction of murder and criminal possession of a firearm, (2) the court abused its discretion by admitting certain uncharged misconduct evidence and (3) his right to a fair trial was violated as a result of prosecutorial impropriety. We disagree, and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. During the evening of July 7, 2011, James Beaulieu rode on a two seat, three-wheeled motorcycle known as a T–Rex² driven by the victim, Luis Cruz. The two returned to Boyden Street in Waterbury, where Beaulieu had parked his motorcycle. At approximately 1:30 a.m. on July 8, 2011, Adam Maringola, who was working in a nearby building, heard a loud noise and watched as the victim pulled into a driveway and stopped briefly.

Maringola observed a black Acura near the T–Rex. He then saw two people exit the Acura and walk toward the T–Rex. The victim became alarmed and backed out of the driveway. The two individuals from the Acura began shooting at the T–Rex from a distance of approximately eight and one-half feet. The shooting continued as the T–Rex crashed into a stop sign. Beaulieu pushed himself out of the T–Rex and ran up a hill. Maringola watched the two men from the Acura shoot at Beaulieu as he fled.

One of the men from the Acura approached the T–Rex and ordered the victim to exit. The victim replied that he was unable to do so and then was shot multiple times. This shooter continued to pull the trigger of the firearm even though he had discharged all of its ammunition. After the cessation of gunshots, another witness, Sade Canada, heard someone say, "just leave him, let's go," and the shooters returned to the Acura and drove off. Later that evening, the defendant was overheard telling his girlfriend, Isis Hargrove, that "we just did some hot shit," and appeared nervous.

After a brief period of time, Beaulieu returned to the T–Rex and saw that the victim had remained in it and was not moving. Waterbury police officers arrived and secured the area. At 1:37 a.m., paramedic Joshua Stokes was dispatched to the scene. He observed that the victim had lost a "copious" amount of blood, suffered multiple gunshot wounds

and had no pulse or lung sounds. After consulting with a physician from Waterbury Hospital via telephone, the victim was pronounced dead at the scene.³

The next day, July 9, 2011, Antonio Lofton, a resident of New Haven, was in his backyard. Lofton observed the defendant and Earl Simpson shoot handguns five or six times before driving off in a black Acura.⁴ The noise from the firearms resulted in a report to the police, and Myra Nieves, a New Haven police detective, commenced an investigation. She recovered six bullet casings and one projectile from that area. These items were sent to the state forensics laboratory for testing.

At the location of the Waterbury shooting, Brian Juengst, a crime scene technician, participated in the recovery of thirteen shell casings and three intact projectiles.⁵ Orlando Rivera, a detective with the Waterbury Police Department, investigated the homicide and learned that a dark-colored vehicle, later determined to be a black Acura, had been used by the shooters. Rivera obtained video from businesses located near the shooting. These videos showed the black Acura following the T–Rex until it pulled into the driveway on Boyden Street. Rivera also learned that the casings and projectiles found at the Waterbury crime scene were connected to a criminal investigation in New Haven.⁶ Rivera communicated with investigators in New Haven and obtained the names of the defendant, Isis Hargrove, Simpson and Shaquan Armour. Hargrove, who was the girlfriend of the defendant and the sister of Simpson, owned the black Acura. Using this information, Rivera obtained a search warrant for the cell phone records of Simpson and Hargrove. These records established that Hargrove was in the area of the Waterbury shooting at the time of that incident. After successfully applying for a warrant on August 26, 2011, Rivera seized the Acura. Discolorations on this vehicle matched those that were visible on the videos from the night of the shooting.

On July 29, 2011, Rivera learned that Simpson had been arrested in North Carolina. Approximately six weeks later, Rivera interviewed Simpson, who provided a written statement regarding the events of July 8, 2011. Simpson admitted that he and the defendant were in the area of Boyden Street in Waterbury at the time of the shooting. As a result of the investigation, Rivera obtained an arrest warrant for the defendant, and he was taken into custody on November 16, 2011.⁷

During the defendant's pretrial incarceration, he spoke with Joshua Habib, who also was held at the New Haven Correctional Center. Habib offered to transport a letter from the defendant to Hargrove, who at that time was incarcerated with Habib's girlfriend in another correctional facility. During their conversation, the two men discussed the shooting in Waterbury. The defendant told Habib that the victim had been killed for the purpose of stealing the T–Rex and a chain. The defendant provided specifics regarding the Waterbury shooting, telling Habib that "he got out of the car and shot [the victim], and they were attempting or he—intentions was to rob [the victim] for the [T–Rex] ...." The defendant also told Habib that the case against him was based on circumstantial evidence.

The jury found the defendant guilty on all charges. The court sentenced the defendant to seventy-five years incarceration, thirty-two of which were mandatory. On August 27, 2014, the court vacated the conviction of felony murder, but did not alter the length of the defendant's sentence.⁸ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to sustain his conviction of murder and criminal possession of a firearm.⁹ Specifically, he argues that the state failed to present sufficient evidence that he had fired the gun during the Waterbury shooting, and therefore, his conviction of murder and criminal possession of a firearm cannot stand. We are not persuaded.

As a preliminary matter, we note that the defendant preserved this claim by moving for a judgment of acquittal at the conclusion of the state's evidence, pursuant to Practice Book §§ 42–40 and 42–41.¹⁰ See State v. Taft , 306 Conn. 749, 753 n.6, 51 A.3d 988 (2012) ; State v. Brown , 118 Conn.App. 418, 422, 984 A.2d 86 (2009), cert. denied, 295 Conn. 901, 988 A.2d 877 (2010). Specifically, defense counsel argued that there was no evidence that he possessed a firearm on July 8, 2011. With respect to the murder charge, defense counsel contended that there was no evidence that the defendant had been one of the two shooters who had exited the black Acura. Additionally, defense counsel noted that two of the eyewitnesses had testified that the shooters had dark skin, but that the defendant had light skin. The court denied the defendant's motion. The defendant also filed a postverdict motion for a judgment of acquittal¹¹ that the court denied prior to sentencing.

Next, we set forth our standard of review and the legal principles relevant to a claim of evidentiary insufficiency. We recently iterated that "a defendant who asserts an insufficiency of the evidence claims bears an arduous burden." (Internal quotation marks omitted.) State v. Leniart , 166 Conn.App. 142, 169, 140 A.3d 1026, cert. granted on other grounds, 323 Conn. 918, 149 A.3d 499, 150 A.3d 1149 (2016). "In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ...

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt...

"Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial...