State v. Gayle
| Decision Date | 31 July 2001 |
| Docket Number | (AC 20881) |
| Citation | 781 A.2d 383,64 Conn. App. 596 |
| Court | Connecticut Court of Appeals |
| Parties | STATE OF CONNECTICUT v. ALKEITH GAYLE |
Lavery, C. J., and Schaller and Flynn, JS. James B. Streeto, deputy assistant public defender, for the appellant (defendant).
Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John M. Waddock, supervisory assistant state's attorney, for the appellee (state).
The defendant, Alkeith Gayle, appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a), conspiracy to sell narcotics in violation of General Statutes §§ 21a-277 (a) and 53a-48, sale of narcotics in violation of General Statutes § 21a-277 (a), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2), and felony murder in violation of General Statutes § 53a-54c.1 The trial court sentenced him to a total effective term of sixty-five years imprisonment. The defendant claims on appeal that (1) the evidence was insufficient to support his conviction for sale of narcotics, (2) the court improperly instructed the jury on the elements of felony murder, (3) the court improperly instructed the jury on the concepts of reasonable doubt and presumption of innocence, and (4) the evidence was insufficient to support his conviction for felony murder.2 We agree with the defendant's first claim and reverse the court's judgment with respect to his conviction for sale of narcotics, but affirm the court's judgment as to the conviction of the remaining charges.
The jury reasonably could have found the following facts. In the early morning hours of May 16, 1996, the defendant and his friend, Jason Jeter, were present in a park near the corner of Chapel and Day streets in New Haven. The defendant and Jeter planned to rob passersby, as they apparently had on previous occasions.3 The defendant was armed with a .38 caliber snub-nosed revolver. The two met with an acquaintance, Robert Pinkston, and the three then sat down on benches near the edge of the park.
Shortly thereafter, the victim, Thomas Harris, approached the park near to where the defendant, Jeter and Pinkston were sitting. The defendant and Jeter walked toward Harris while Pinkston remained seated. Harris asked the defendant and Jeter whether they were "working," i.e., selling drugs, to which the two replied in the affirmative. Jeter asked Harris, "How many?" and Harris replied, "Four." Jeter reached into the defendant's jacket pocket and removed four individually wrapped pieces of a substance subsequently alleged by the state to be crack cocaine. Harris paid the defendant $40 for the drugs. Jeter turned to head back toward Pinkston, and the defendant told Harris to "run it," meaning that Harris was to return the alleged crack cocaine and to surrender his other valuables to the defendant. Harris replied, "I don't have time for this," and started to leave. A brief scuffle ensued between Harris and the defendant. Harris broke free and began to walk quickly away. Jeter had stopped to watch this encounter. The defendant took a revolver from his pocket and aimed it at Harris. The defendant looked over at Jeter, who told the defendant to shoot Harris. The defendant fired one shot, which struck Harris in the back of the head. Harris fell to the ground, bleeding profusely. Jeter and the defendant fled the park, running past Harris. Pinkston fled on his bicycle in a different direction.
Jeter and the defendant ran to a nearby group of apartment houses on Day Street, one of which was the defendant's residence. The defendant went to the back steps of the apartment, and Jeter, after some time,4 returned to the park and retrieved the four pieces of alleged crack cocaine, some of which were in the victim's hand, the rest on the sidewalk nearby. Jeter returned to the apartment houses and met the defendant, who by then had entered his residence on the second floor. The defendant gave Jeter money in exchange for the alleged crack cocaine.
Jeter remained at the defendant's residence until later in the evening. When Jeter left the defendant's apartment, Harris still lay on the ground in the park where he had fallen. Sometime thereafter, a neighborhood resident summoned police and medical personnel. The victim had lost a large amount of blood and died of his gunshot wound en route to the hospital. The defendant later was arrested and was convicted after a jury trial as previously outlined. Additional facts will be set forth as we consider each of the issues he raises on appeal.
The defendant first claims that the state's evidence at trial was insufficient to support his conviction for sale of narcotics.5 Specifically, he argues that the state failed to prove that the substance the defendant sold to Harris was in fact crack cocaine, a narcotic substance. We agree with the defendant.
The defendant did not testify at trial. The only evidence submitted that pertained to the drug transaction between the victim, Jeter and the defendant was Jeter's testimony recounting the event. Because Jeter had returned to the murder scene to retrieve the crack cocaine, it no longer was on Harris' person when police and medical personnel arrived at the scene. Additionally, the defendant was not in possession of the crack cocaine at the time of his arrest. As such, no substance was available for analysis and introduction into evidence at trial.
State v. Green, 62 Conn. App. 217, 225, 774 A.2d 157, cert. granted on other grounds, 256 Conn. 927, 928, 776 A.2d 1147, 1148 (2001).
To prove sale of a narcotic substance, "[t]he state [must] prove ... [beyond a reasonable doubt] that the defendant knowingly sold the substance to another person and that the substance sold was a narcotic." State v. Mahon, 53 Conn. App. 231, 236, 729 A.2d 242 (1999). "Proof of the exact nature of the substances upon which the prosecution is grounded, of course, is necessary, and the nature of the examinations essential for such proof with a high degree of scientific exactitude mandates the opinion of one competent to conduct such examinations." State v. Clemons, 168 Conn. 395, 402, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed.2d 80 (1975).
In the present case, the only evidence admitted to prove that the defendant had sold a narcotic substance was Jeter's testimony recounting the incident. Jeter, fourteen years old at the time, was not shown to have any particular expertise in identifying crack cocaine by visual inspection, if such an identification is even possible. Neither the defendant nor Pinkston testified as to the transaction. No sample of the alleged narcotic substance ever was retrieved from the victim, the defendant or Jeter. Consequently, nothing was available for field testing or laboratory analysis. There was no testimony concerning the use of the alleged narcotic and its subsequent effect on the user.
(Citations omitted.) State v. Mierez, 24 Conn. App. 543, 552, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991).
Absent resort to speculation and conjecture, the jury in this case could not reasonably have inferred that the defendant sold a narcotic substance to the victim because there was no evidence to support a finding that the substance transferred was in fact crack cocaine. Given the lack of evidence as to the character of the substance, there is no way that the jury could have concluded beyond a reasonable doubt that the defendant was guilty of sale of a narcotic substance. We reverse the judgment as to the defendant's conviction of sale of a narcotic substance in violation of § 21a-277 (a) and vacate the portion of his sentence associated therewith.
The defendant next claims that the court improperly instructed the jury on the elements of felony murder, thereby broadening the range of behavior contemplated by the felony murder statute.6 Specifically, the defendant argues that the charge as given did not sufficiently convey the connection between the attempted robbery and Harris' death necessary for the jury to convict him of felony murder. We disagree.
The court instructed the jury on the elements of felony murder as follows:
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