State v. Green

• Decision Date: 20 January 2004
• Docket Number: (AC 22968).
• Citation: 81 Conn. App. 152,838 A.2d 1030
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. GARY GREEN

81 Conn. App. 152

838 A.2d 1030

STATE OF CONNECTICUT v. GARY GREEN

(AC 22968).

Appellate Court of Connecticut.

Argued October 16, 2003.

Officially released January 20, 2004.

Dranginis, West and Hennessy, Js.

Alice Osedach-Powers, assistant public defender, with whom, on the brief, was Mary Anne Royle, special public defender, for the appellant (defendant).

Paul J. Narducci, assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and Peter A. McShane, senior assistant state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant, Gary Green, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). He claims that the court (1) improperly denied his motion for a judgment of acquittal, which he based on his claims that the court's instructions on accessorial liability had misled the jury and that there was no basis to support a finding that he had acted as an accessory,¹ (2) unconstitutionally placed him twice in jeopardy for the same offense, and (3) committed plain error by not reciting any of the elements of § 21a-278 (b) in its accessory charge to the jury and by failing to instruct the jury that to convict him, he must not have been drug-dependent at the time the offenses were committed. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 29, 1999, the state police narcotics task force conducted an undercover investigation of street level narcotics sales in the Boswell Avenue-Lake Street section of Norwich. An undercover officer parked on Boswell Avenue and made eye contact with a black male, identified as Wayne Goggins, standing in front of 64 Boswell Avenue. Goggins approached and asked the officer what he needed. The officer requested "a twenty," meaning $20 worth of crack cocaine. Goggins stated that "we just got a shipment in" and "they're cooking it." The officer indicated that he would wait.

According to the officer's testimony, Goggins walked back to 64 Boswell Avenue and met with someone at the corner of the building located at that address. He returned to the officer's car and apologized for the delay. Goggins then proceeded back to 64 Boswell Avenue again, entered the building and exited one minute later with the defendant in his company. The two men approached the car, but the defendant stopped approximately twenty feet short. Goggins continued to the car alone and handed the officer a quantity of crack cocaine. The officer paid Goggins $20 for the drugs. He then observed Goggins walk back to the defendant, hand him the $20 and walk with the defendant back into the building at 64 Boswell Avenue.

At trial, the defendant's motion for a judgment of acquittal was denied. The jury found him guilty on both counts. This appeal followed.

I

The defendant claims first that the court improperly denied his motion for a judgment of acquittal. His request for acquittal was based on his claims that (1) the court misled the jury by failing to distinguish between the elements of accessorial liability and conspiracy, leading it to believe that the two were interchangeable, which resulted in an inconsistent verdict, and (2) there was no legal basis for the court to instruct the jury on accessorial liability because there was no evidence that he had aided or abetted Goggins in the sale of narcotics. We disagree.

We first note the standard of review. "In reviewing the denial of a motion for judgment of acquittal, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether, from all of the evidence and the reasonable inferences drawn therefrom, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt." State v. Salmon, 66 Conn. App. 131, 142-43, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002).

A

The defendant argues that the court improperly denied the motion for a judgment of acquittal on the first count,² sale of narcotics in violation of § 21a-278 (b), because his conviction as both an accessory and as a conspirator was an inconsistent verdict under the facts of the case. He argues that the court improperly failed to instruct the jury that accessorial liability is legally inconsistent with conspiracy and that a finding of guilt under one offense precluded a finding of guilt under the other. We disagree.

"The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was ... reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge." (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 748, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

At trial, defense counsel objected generally to an instruction on accessorial liability, but failed to raise the specific argument articulated here. The defendant, however, has requested Golding review. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) Id.

We will review the defendant's claim because he satisfies the first two prongs of Golding. He fails to satisfy the third prong, however, because he was not clearly deprived of his due process right to a fair trial. First, the court's charge concerning accessorial liability properly tracked General Statutes § 53a-8 and correctly explained that acting as an accessory merely is an alternative means of committing the substantive offense.³ Second, the defendant's argument that the court failed to explain to the jury why he was charged as both an accessory and a conspirator is without merit. It is the prosecutor's function, not the court's, to explain to the jury why a defendant is charged with certain crimes. See State v. Kinchen, 243 Conn. 690, 699, 707 A.2d 1255 (1998). Third, the court gave a clear, accurate instruction on conspiracy.

Guilt as an accessory and conspiracy are not, as the defendant contends, legally inconsistent. "Ordinarily, a jury is precluded from finding a defendant guilty of two offenses that are inconsistent as a matter of law." State v. Flynn, 14 Conn. App. 10, 26, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). "In such circumstances, the inconsistent offenses should be presented to the jury in the alternative." Id. A verdict is legally inconsistent when "the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted." State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). For instance, a defendant cannot be convicted for both stealing and receiving the same goods. Milanovich v. United States, 365 U.S. 551, 554-55, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961).

The essential elements of the two offenses in this case, sale of narcotics and conspiracy to sell narcotics, did not negate each other.⁴ The defendant's reliance on State v. Flynn, supra, 14 Conn. App. 10, is misplaced. In Flynn, the defendant argued that the court improperly failed "to instruct the jury that it could not find the defendant guilty of both a crime requiring reckless conduct and a crime requiring intentional conduct for the doing of the same act." (Emphasis added.) Id., 24. Acting as an accessory to a crime and conspiring to commit a crime, however, are not the same acts. One condemns giving intentional aid to another who engages in unlawful conduct, while the other condemns the act of agreeing to engage in criminal conduct. Moreover, we held in Flynn that "it is not inconsistent ... to find that a criminal defendant possesses two different mental states, as long as these different mental states relate to different results." Id., 27. Finally, we note that the intent requirements of the two offenses do not negate each other.

Therefore, the defendant's argument that it was legally inconsistent to find him guilty both as an accessory to a crime and as a conspirator to commit the same offense is without merit. The instruction was proper and did not yield an inconsistent verdict.

B

The defendant also claims that there was no legal basis for the court to instruct the jury on the issue of accessorial liability because there was no evidence that he aided or abetted Goggins in selling the crack cocaine to the undercover officer. He argues that the officer's observation of Goggins immediately handing him the proceeds of the drug sale and testimony from experienced officers on the fragmented nature of street level narcotics sales provided insufficient evidence to find the defendant guilty of the sale of narcotics either as a principal or as an accessory. We disagree.

The standard of review for challenges...