State v. Green

• Decision Date: 10 September 2002
• Docket Number: No. 16544.,16544.
• Citation: 261 Conn. 653,804 A.2d 810
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Charles GREEN.

804 A.2d 810

261 Conn. 653

STATE of Connecticut v. Charles GREEN.

No. 16544.

Supreme Court of Connecticut.

Argued May 22, 2002.

Decided September 10, 2002.

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BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

Kent Drager, senior assistant public defender, for the appellant-appellee (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-appellant (state).

PALMER, J.

A jury found the defendant, Charles Green, guilty of murder as an accessory in violation of General Statutes §§ 53a-54a¹ and 53a-8,² conspiracy to commit murder in violation of General Statutes §§ 53a5-4a and 53a-48,³ and criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1995) § 53a-217c.⁴ The trial court rendered judgment in accordance with the jury verdict,⁵ from which the defendant appealed to the Appellate Court. The Appellate Court reversed in part the trial court's judgment, upholding the defendant's convictions of murder as an accessory and criminal possession of a pistol or revolver, but setting aside his conviction of conspiracy to commit murder on the ground of insufficient evidence.⁶ See State v. Green, 62 Conn App. 217, 247-48, 774 A.2d 157 (2001). On appeal to this court upon our granting of certification, the defendant contends, inter alia, that he was deprived of his constitutional right to confrontation⁷ when the trial court instructed the jury that, for purposes of evaluating the credibility of a key state's witness, Leroy Townsend, it was not to consider the fact that Townsend had been smoking marijuana on the night of the offense.⁸ State v. Green, 256 Conn. 927, 928, 776 A.2d 1147 (2001). We also granted the state's petition for certification to appeal limited to the issue of whether the Appellate Court properly concluded that there was insufficient evidence to support the jury's verdict of guilty of the charge of conspiracy to commit murder. State v. Green, 256 Conn. 928, 776 A.2d 1148 (2001). With respect to the defendant's appeal, we conclude that, although the trial court's instruction not to consider the evidence of Townsend's marijuana use was improper, that impropriety was not of constitutional magnitude. With respect to the state's appeal, we conclude that the Appellate Court properly determined that the evidence adduced at trial was insufficient to support the defendant's conviction of conspiracy to commit murder. Accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. "Tyrese Jenkins, Hopeton Wiggan, David D., Kenny Cloud and Brucie B.⁹ were members of a gang [known as the Island Brothers] named after a housing [complex] located in the Fair Haven section of New Haven. On October 7, 1996, at approximately 11:15 p.m., [Jenkins, Wiggan, David D., Cloud and Brucie B.] went to [another] housing [complex], also located in New Haven and referred to as `the ghetto,' to settle [an apparent] dispute with the defendant [and some of his companions] ....

"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 [complex] through a hole in a fence and, as they approached, they noticed the defendant along with three others, namely, Duane Clark, [Bobby 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 motherfucker,' 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 [housing] 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 ... 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. [Wiggan and Brucie B.] 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 ... witnessed the beginning of the disturbance as he stood near the electrical box, smoking marijuana.¹⁰ At trial, Townsend testified that he had heard Clark say, `Shoot the motherfucker,' and that he saw the defendant shoot Jenkins.

"Arkady Katsnelson, a forensic pathologist [and medical examiner for the state], performed an autopsy on [Jenkins]. Katsnelson testified that Jenkins suffered two bullet wounds, one of which was fatal. One bullet ... entered the lower front portion of Jenkins' right leg and exited through the back of it. The other bullet, a .44 caliber ... 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, [and] the organs of the abdomen and eventually lodged in some soft tissue located in his abdominal cavity." State v. Green, supra, 62 Conn.App. at 219-20, 774 A.2d 157.

The defendant was tried together with Clark, who was charged with murder, conspiracy to commit murder and criminal possession of a pistol or revolver. At the conclusion of the evidentiary portion of their joint trial, and after closing arguments, the court, sua sponte, instructed the jury that it was not to consider any "testimony that ... Townsend smoked marijuana the night of the shooting" because "[t]here [was] no evidence as to what effect it had on him. Because there [was] no such evidence you must not speculate that he was or was not affected by it or how he was affected by it." After the trial court finished instructing the jury, Clark objected to, inter alia, the court's instructions concerning Townsend's marijuana use on the night of the shooting; the defendant did not object to those instructions, however. The trial court overruled Clark's objection and, thereafter, the jury found the defendant guilty of murder as an accessory, conspiracy to commit murder and criminal possession of a pistol or revolver. The jury found Clark guilty of criminal possession of a pistol or revolver but not guilty of murder and conspiracy to commit murder.¹¹

On appeal to the Appellate Court, the defendant claimed, inter alia, that: (1) the trial court improperly had instructed the jury not to consider Townsend's testimony that he had been smoking marijuana on the evening of the crime; and (2) the evidence was insufficient to support his conviction of conspiracy to commit murder. Id., at 218-19, 774 A.2d 157. The Appellate Court concluded that the defendant was not entitled to review of his first claim because he had failed to object at trial to the allegedly improper instruction and had failed to establish on appeal, pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),¹² that the claimed impropriety was of constitutional magnitude.¹³ See State v. Green, supra, 62 Conn.App. at 228, 231, 774 A.2d 157. With respect to the defendant's second claim, however, the Appellate Court concluded that the evidence was insufficient to prove that the defendant had conspired to murder Jenkins and, therefore, reversed in part the trial court's judgment and remanded the case with direction to render a judgment of acquittal with respect to the charge of conspiracy to commit murder. Id., at 224, 247-48, 774 A.2d 157.

On appeal to this court, the defendant renews his claim that he is entitled to a new trial because the trial court improperly instructed the jury not to consider the effect of Townsend's marijuana use in weighing Townsend's credibility in violation of the defendant's right to confrontation. The state contends in its appeal that, contrary to the conclusion of the Appellate Court, the evidence was sufficient to support the jury's verdict of guilty of conspiracy to commit murder. We address the defendant's claim and the state's claim in turn.

I

The following additional facts and procedural history, which are set forth in this court's opinion in State v. Clark, 260 Conn. 813, 801 A.2d 718 (2002); are necessary to our resolution of the defendant's claim. "At trial, the state presented the testimony of its key witness, Townsend, a local man who was standing near the site of the shooting, smoking marijuana, when he witnessed the beginning of the disturbance. Townsend testified that he had seen [Clark and the defendant] at the scene, that [they each] had a pistol and that, immediately prior to the [exchange of gunfire, Clark] had said [in the presence of the defendant], `Shoot the motherfucker.'

"Townsend's credibility was attacked ... in a variety of ways. He admitted that he had not come forward with his story until several weeks after the shooting when officers from the New Haven police department arrested him for a traffic violation. He also admitted to having three felony convictions on his record. Townsend testified that on the night of the shooting, he [had gone] to the housing [complex at which Jenkins was shot] to purchase marijuana, although [he also testified] that he went there with the marijuana already in his pocket. He testified that at some point he purchased six bags of `weed,' although he was unable to remember where he had purchased it. Townsend acknowledged that, shortly before the shooting, he had smoked five marijuana cigarettes, with perhaps a ten or fifteen minute interlude between each cigarette. During his interview with the police, however, Townsend placed himself at the scene for only approximately fifteen minutes prior to the shooting. These inconsistencies aside, [neither Clark nor the defendant inquired...