State v. Gonzalez, 18687.

• Decision Date: 05 April 2011
• Docket Number: No. 18687.,18687.
• Citation: 15 A.3d 1049,300 Conn. 490
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticutv.Alfredo GONZALEZ.

300 Conn. 490

15 A.3d 1049

STATE of Connecticut

v.Alfredo GONZALEZ.

No. 18687.

Supreme Court of Connecticut.

Argued Jan. 7, 2011.Decided April 5, 2011.

Raymond L. Durelli, special public defender, for the appellant (defendant).Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence D. Mariani and Cynthia S. Serafini, senior assistant state's attorneys, for the appellee (state).ROGERS, C.J., and NORCOTT, PALMER, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.NORCOTT, J.

The sole issue in this appeal is whether the Appellate Court's decision in State v. Miller, 95 Conn.App. 362, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006), sets forth a correct statement of the essential elements of the offense of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a–8 ¹ and 53a–55a.² The defendant, Alfredo Gonzalez, appeals ³ from the judgment of the trial court, rendered after a jury trial, convicting him of, inter alia, manslaughter in the first degree with a firearm as an accessory in violation of §§ 53a–8 and 53a–55a. On appeal, the defendant claims that the trial court's jury instructions improperly omitted an essential element of the offense of manslaughter in the first degree with a firearm as an accessory, namely, the defendant's intention that the principal would use, carry or threaten the use of a firearm during the commission of the offense. We conclude that the trial court's jury instructions, which conformed to the Appellate Court's decision in Miller, were a proper statement of the essential elements of manslaughter in the first degree with a firearm as an accessory. Accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. The defendant had engaged in an ongoing feud with the victim, Samuel Tirado.⁴ On the evening of May 5, 2006, the defendant and three friends, Anthony Furs, Christian Rodriguez and Melvin Laguna, went out for the evening in Rodriguez' red GMC Yukon. They stopped briefly at one bar, and then decided to go to a bar named Bobby Allen's in Waterbury because they knew that the victim went there frequently, and they wanted to start a fight with him. En route to Bobby Allen's, the defendant observed that there were two guns in the Yukon, in addition to a razor blade that he intended to use in that fight, and remarked that, if he had the money, he would give it to Furs to “clap,” or shoot, the victim. Rodriguez, who also disliked the victim, then offered to pay Furs $1000 to shoot the victim, which Furs accepted.

When they arrived at Bobby Allen's, the defendant left the group briefly to urinate behind a nearby funeral home. When he rejoined the group, Furs gave the defendant the keys to the Yukon and told him to go get the truck because the victim was nearby speaking with Rodriguez. The defendant and Furs then drove a short distance toward Bobby Allen's in the Yukon, and Furs, upon spotting the victim and Rodriguez outside the bar, jumped out of the Yukon and shot the victim in the chest with a black handgun, mortally wounding him. Rodriguez and Laguna then fled the scene on foot, while Furs and the defendant drove off in the Yukon to a friend's nearby apartment on South Main Street. Thereafter, with the assistance of friends, Furs ⁵ and the defendant fled separately from the apartment, and the defendant subsequently disposed of the gun, first by hiding it in a woodpile at his mother's home, and later by throwing it into Pritchard's Pond (pond) in Waterbury.

Thereafter, Waterbury police officers investigating the shooting questioned the defendant after arresting him on an outstanding motor vehicle warrant on May 6, 2006. The defendant initially gave a statement denying any involvement in the incident. Subsequently, on May 15, 2006, the Waterbury police reinterviewed the defendant, at which time he admitted disposing of the gun by throwing it into the pond. The defendant then accompanied the officers to the pond and showed them where he had thrown the gun, which enabled a dive team to recover it several days later.⁶ After they returned to the police station, the defendant gave the police a second statement admitting that he had lied in his initial statement and explaining his role in the events leading to and following the shooting.

The state charged the defendant in a six count substitute information with murder as an accessory in violation of § 53a–8 and General Statutes § 53a–54a (a), manslaughter in the first degree with a firearm as an accessory in violation of §§ 53a–8 and 53a–55a, conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a–48 and 53a–59 (a)(5), hindering prosecution in the second degree in violation of General Statutes § 53a–166, and criminal possession of a firearm in violation of General Statutes § 53a–217 (a)(1). The defendant elected a jury trial. ⁷ After evidence, the trial court denied the defendant's motion for acquittal. The jury returned a verdict finding him not guilty of accessory to murder and conspiracy to commit murder, but guilty on all other counts. The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of thirty-eight years imprisonment, with ten years of special parole. This appeal followed.

On appeal, the defendant claims that the trial court improperly instructed the jury regarding the elements of the offense of manslaughter in the first degree with a firearm as an accessory. Specifically, the defendant claims that accessorial liability under § 53a–8 encompasses both the specific intent to cause a result, in this case, to cause the victim “serious physical injury,” as well as the general intent to perform the physical acts that constitute the offense of manslaughter in the first degree with a firearm, including the use, carrying or threatened use of a firearm. The defendant contends that accessorial liability cannot attach unless both the accessory and the principal commit each and every element of the offense, and that relieving the state of the burden of proving that the accessory intended the use of a firearm blurs the distinction between liability as a coconspirator under the Pinkerton theory of vicarious liability,⁸ and accessorial liability under § 53a–8. Thus, the defendant argues that we should overrule State v. Miller, supra, 95 Conn.App. at 362, 896 A.2d 844, which concluded that the state need not prove that the defendant intended the principal's use, carrying or threatened use of a firearm as an essential element of accessorial liability for manslaughter in the first degree with a firearm.

In response, the state contends that the firearm requirement of § 53a–55a is an “aggravating circumstance” that does not require proof of any particular mental state for either the principal or the accessory. The state notes that the harshness of the strict liability aspect of this aggravating circumstance is mitigated by General Statutes § 53a–16b, ⁹ which is an affirmative defense, whereby the defendant may prove that he was not armed with a firearm and had no reasonable ground to believe that any other participant in the crime was so armed. The state further emphasizes that this affirmative defense does not relieve it from first having to prove all of the elements of the offense, which also means that the distinction between accessorial and coconspirator liability remains intact. Accordingly, the state contends that State v. Miller, supra, 95 Conn.App. at 362, 896 A.2d 844, was properly decided and remains controlling precedent.¹⁰ We agree with the state and conclude that, to establish accessorial liability under § 53a–8 for manslaughter in the first degree with a firearm in violation of § 53a–55a, the state must prove that the defendant, acting with the intent to cause serious physical injury to another person, intentionally aided a principal offender in causing the death of such person or of a third person, and that the principal, in committing the act, used, carried or threatened to use a firearm.

The record reveals the following additional relevant facts and procedural history. After explaining the principles of accessorial liability generally in the context of the murder charge, the trial court instructed the jury in relevant part that, “[u]nder the accessorial theory of liability, as I've defined it, in order for the state to prove the offense of accessory to manslaughter in the first degree with a firearm, the following elements each must be proved beyond a reasonable doubt: Number one, that the defendant ... had the specific intent to cause serious physical injury to [the victim]. Two: That the defendant solicits, requests or intentionally aids the principal, the shooter, who causes the death of such person, [the victim]. And three: In the commission of such offense the principal, the shooter, uses a firearm.” After explaining each of the three elements individually, including that the jury had to find that the defendant “had the specific intent to cause serious physical injury to [the victim],” and that “the state must prove beyond a reasonable doubt ... that the defendant did solicit, request or intentionally aid another person, the principal, to engage in conduct which constitutes [the] crime of manslaughter in the first degree,” the trial court noted that the “third element is that the state must prove beyond a reasonable doubt that in the commission of this offense the principal, [Furs], uses a firearm,” defined as “any pistol, revolver or other weapon, whether loaded or unloaded, from which a shot may be discharged. You must find that the firearm was operable at the time of the offense.” ¹¹

The defendant subsequently took an exception to this...