State v. Green
Decision Date | 06 March 2001 |
Citation | 774 A.2d 157,62 Conn. App. 217 |
Parties | (Conn.App. 2001) STATE OF CONNECTICUT v. CHARLES GREEN AC 18369 |
Court | Connecticut Court of Appeals |
Kent Drager, senior assistant public defender, for the appellant (defendant).
Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Elpedio Vitale, senior assistant state's attorney, for the appellee (state).
The defendant, Charles Green, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§§§ 53a-48 and 53a-54a (a), murder as an accessory in violation of General Statutes §§§§ 53a-8 and 53a-54a (a) and criminal possession of a pistol or revolver in violation of General Statutes §§ 53a-217c.1 On appeal, the defendant claims that (1) the evidence was insufficient to establish his guilt of conspiracy to commit murder and murder as an accessory, (2) the court improperly instructed the jury not to consider the effect that smoking marijuana had on an eyewitness to the crime when the eyewitness admitted to smoking five marijuana cigarettes prior to making his observations, (3) the court improperly allowed the state to present evidence of an alleged prior crime, (4) the court improperly instructed the jury on the burden of proof beyond a reasonable doubt and (5) the court improperly allowed the state to exercise a peremptory challenge against a prospective juror, who was black, when the state's reason for excusing the prospective juror was insufficient and pretextual. We reverse the judgment of the trial court in part and affirm it in part.
The jury reasonably could have found the following facts. Tyrese Jenkins, Hopeton Wiggan, David D., Kenny Cloud and Brucie B. were members of a gang2 named after a housing project located in the Fair Haven section of New Haven. On October 7, 1996, at approximately 11:15 p.m., the gang went to a housing project, also located in New Haven and referred to as "the ghetto," to settle a dispute with the defendant and others, who were members of a rival gang that resided there.3
Cloud stayed in the car, while Jenkins, Wiggan, David D. and Brucie B., with guns at their sides, went looking for the defendant. The four men entered the housing project through a hole in a fence and, as they approached, they noticed the defendant along with three others, namely, Duane Clark, Bobby "B.O." Cook and Ryan Baldwin, standing and talking near a green electrical box. When the defendant and the others saw the gang members approaching, Clark exclaimed, "Shoot the motherfuckers," and a gunfight ensued.
When the first shots were fired, Wiggan and Brucie B. ran for cover behind a dumpster. Jenkins ran diagonally across a parking lot located in the complex. Both sides exchanged a barrage of gunfire. As Wiggan, Brucie B. and Jenkins retreated from the complex, Jenkins was shot in the leg. Jenkins hobbled quickly away from the complex, but another bullet struck him and he collapsed. Wiggan and Brucie B. went back into the complex and found Jenkins sitting up against a wall. The two picked up Jenkins and carried him to the car. Cloud, David D., Brucie B. and Wiggan took Jenkins to Yale New Haven Hospital, where he died from his injuries.
Leroy Townsend, a local man, witnessed the beginning of the disturbance as he stood near the electrical box, smoking marijuana.4 At trial, Townsend testified that he had heard Clark say "shoot the motherfuckers" and that he saw the defendant shoot Jenkins.
Arkady Katsnelson, a forensic pathologist, performed an autopsy on the victim. Katsnelson testified that Jenkins suffered two bullet wounds, one of which was fatal. One bullet, a nine millimeter round, entered the lower front portion of Jenkins' right leg and exited through the back of it. The other bullet, a.44 caliber round, which caused the fatal wound, entered through the upper right side of Jenkins' chest just below his collarbone and then penetrated the chest wall, the right lung, the heart, the diaphragm, part of the liver, the organs of the abdomen and eventually lodged in some soft tissue located in his abdominal cavity. We will provide additional facts as needed.
The defendant first claims that the evidence presented by the state was insufficient as a matter of law to sustain his conviction for conspiracy to commit murder pursuant to §§§§ 53a-485 and 53a-54a (a).6 The state concedes, and we agree, that Clark, who was tried with the defendant, may not be considered as a coconspirator.7 Because the state failed to prove at trial that the defendant had agreed with someone else to murder Jenkins, the evidence was insufficient to sustain his conviction under §§§§ 53a-48 and 53a-54a (a). See State v. Booth, 250 Conn. 611, 657±n58, 737 A.2d 404 (1999), cert. denied, U.S., 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).
At the close of the state's case-in-chief and again at the close of all of the evidence, the defendant moved for a judgment of acquittal on the basis of the insufficiency of the evidence. The court denied both motions. After the verdict, and again during the sentencing proceeding, the defendant made several oral motions for acquittal. The court denied each of these motions as well.
(Internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 177±n78, 728 A.2d 466, cert. denied, U.S., 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). On the basis of our review of the record, we conclude that the evidence was insufficient to establish that the defendant conspired to murder Jenkins.
(Internal quotation marks omitted.) State v. Booth, supra, 250 Conn. 657±n58.
(Internal quotation marks omitted.) State v. Torres, 242...
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