State v. Gamble, No. 29140.

• Decision Date: 09 February 2010
• Docket Number: No. 29140.
• Citation: 119 Conn.App. 287,987 A.2d 1049
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Hudel Clifton GAMBLE.

987 A.2d 1049

119 Conn.App. 287

STATE of Connecticut v. Hudel Clifton GAMBLE.

No. 29140.

Appellate Court of Connecticut.

Argued December 3, 2009.

Decided February 9, 2010.

William B. Westcott, special public defender, for the appellant (defendant).

Timothy F. Costello, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Melissa Patterson, deputy assistant state's attorney, for the appellee (state).

GRUENDEL, BEACH and BORDEN, Js.

BEACH, J.

The defendant, Hudel Clifton Gamble, appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-55 (a)(3) and 53a-8.¹ The defendant claims that the court improperly (1) accepted the jury's verdict finding him guilty of manslaughter in the first degree with a firearm under the theory of accessorial liability and not guilty of the same crime under the theory of principal liability, thereby (a) violating his right against double jeopardy, (b) resulting in his being convicted of the nonexistent crime of being an "accessory," (c) resulting in a legally inconsistent verdict and (d) returning a verdict in violation of the principles of collateral estoppel, and (2) suggested in its jury instructions that defense counsel had made an improper closing argument, thereby improperly highlighting the defendant's decision not to testify. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendant's appeal. In November, 2005, Ricardo Ramos, who was fifteen years old, and the defendant, who was seventeen years old, were both residents of the "Hill" section of New Haven and had known each other for two or three years. On November 29, 2005, the defendant gave Ramos a loaded .22 caliber gun. Later in the day, Ramos and Daniel Smith, while riding in a BMW in the "Hill" section, picked up the defendant. Smith drove the vehicle, Ramos was seated in the front passenger seat and the defendant was seated in the backseat. They rode around in the vehicle while smoking marijuana.

At some point, Smith drove toward the "Tre" section of New Haven toward Kensington Street. While on Kensington Street, Ramos saw a woman with whom he was acquainted. Smith stopped the vehicle. The woman loudly informed Ramos that a person with whom Ramos had a "beef" was in the area. The three men drove around the block. As they drove down Kensington Street a second time, Ramos observed a person, who he believed had killed his cousin approximately one month earlier, walking on a sidewalk with a group of four or five other people. As Smith drove closer, the group on the sidewalk fired gunshots at the right side of the BMW. Ramos and Smith, who were both carrying weapons, returned fire through the open windows of the BMW. The defendant fired an SKS semiautomatic assault rifle, the barrel of which was resting on an open car window. The following morning, Ramos heard on the news that the victim, Marquis White, had been shot and killed on Kensington Street. Ramos realized that the victim was not the person who he believed had killed his cousin but, rather, was someone Ramos did not know.

Following a jury trial, the defendant was convicted of manslaughter in the first degree with a firearm as an accessory. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant challenges his conviction of manslaughter in the first degree with a firearm as an accessory on the ground that the jury's verdict (1) violated his right against double jeopardy, (2) resulted in his being convicted of the nonexistent crime of being an "accessory," (3) resulted in a legally inconsistent verdict and (4) violated the principles of collateral estoppel. The defendant concedes on appeal that his claims were not preserved at trial but nevertheless seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).² We examine each claim pursuant to Golding in turn.

The following additional facts are relevant to our resolution of these issues. The defendant had been charged with, inter alia, with murder. Over the defendant's objection, the court granted the state's request for a jury instruction on the lesser included offense of manslaughter in the first degree with a firearm under the theories of principal and accessorial liability. The court so instructed the jury.

Following deliberations, the jury reached a verdict. After the roll of jurors was called, the foreperson answered "not guilty" as the court clerk read the following charges: murder, manslaughter in the first degree with a firearm, conspiracy to commit murder, possession of an assault weapon and conspiracy to possess an assault weapon. The court then accepted the verdict.

Thereafter, the foreperson stated that "[s]omething is wrong." The court sent the jury back to the deliberation room and informed counsel of the procedure that was to follow. The jury then returned to the courtroom, and the court asked the jury to articulate its concern in a note. The jury returned to the deliberation room and sent out a note that stated: "[W]e found [the defendant] guilty of `accessory to manslaughter' and [want] guidance. We were waiting for `accessory' to be read." The court described the contents of the note on the record. The court stated that, as evidenced by the note, it was the jury's position that it had not been asked to provide its verdict as to manslaughter in the first degree with a firearm as an accessory. The court indicated that it would have to vacate its finding that the verdict was accepted and recorded, at least as to the manslaughter charge. The court then stated that, unless the parties had an objection, the jury would be asked to return its verdict again as to all the charges, including the lesser included offense of manslaughter in the first degree with a firearm. In an effort to ameliorate any misunderstanding, the court planned to separate the manslaughter charge into two subsets: manslaughter as previously read and manslaughter as an accessory. There was no objection.

After the jury returned to the courtroom, the court clerk again called the jury roll and then asked for the jury's verdict as to each offense. This time, the court clerk inquired as to the offense of manslaughter in the first degree with a firearm twice: once as previously read and interpreted by the jury to encompass only liability as a principal and once as an accessory. The court clerk inquired: "To the lesser included offense in count one, what say you to the lesser included offense of manslaughter in the first degree with a firearm in violation of § 53a-55 (a)(3) of the Connecticut General Statutes," to which the foreperson responded: "Not guilty." The court clerk then inquired: "For the lesser included offense in count one, what say you to the lesser included offense of manslaughter in the first degree with a firearm as an accessory in violation of the same section of the Connecticut General Statutes," to which the foreperson responded: "Guilty." The jury returned a verdict of not guilty to the remaining charges. The court then accepted the verdict. The defendant did not object.

A

The defendant contends that the prohibition against double jeopardy was violated because the jury first found him not guilty of manslaughter in the first degree with a firearm and then, upon the second formulation of the verdict by the clerk, found him guilty of manslaughter in the first degree with a firearm as an accessory. Because the record is adequate and a double jeopardy claim is of constitutional magnitude; see State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991); we review the defendant's claim.

"The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb. ... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment. ... Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of [our state constitution] include protection against double jeopardy. ... [T]he Double Jeopardy Clause consists of several protections: It protects [inter alia] against a second prosecution for the same offense after acquittal." (Citation omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007).

"Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. ... While the first prong requires a review of the bill of particulars, the second prong requires the application of the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). ..." (Citation omitted; internal quotation marks omitted.) State v. Re, 111 Conn.App. 466, 469, 959 A.2d 1044 (2008), cert. denied, 290 Conn. 908, 964 A.2d 543 (2009).

The defendant's claim fails because he was not convicted of the same offense of which he also was acquitted. In this case, the jury expressed confusion in its first effort to return a verdict on the charge of manslaughter in the first degree with a firearm. Ordinarily, of course, criminal liability as either a principal or an accessory is charged as one offense, and the jury is instructed that it should return a verdict of guilty if it finds the defendant guilty either as principal or as accessory. It is not even necessary for conviction that the jury agree on whether the defendant was a...