State v. Greene

• Decision Date: 21 June 2005
• Docket Number: No. 17101.,17101.
• Citation: State v. Greene, 874 A.2d 750, 274 Conn. 134 (Conn. 2005)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Mashawn GREENE.

874 A.2d 750

274 Conn. 134

STATE of Connecticut v.Mashawn GREENE.

No. 17101.

Supreme Court of Connecticut.

Argued January 11, 2005.

Decided June 21, 2005.

Mark Rademacher, 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 Christopher Alexy, senior assistant state's attorney, for the appellee(state).

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ and ZARELLA, Js.

SULLIVAN, C.J.

The defendant, Mashawn Greene, was convicted after a jury trial of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8 (a)¹and53a-55a,² conspiracy to commit manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-48³and53a-55a, five counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a)and53a-59 (a)(5),⁴ conspiracy to commit assault in the first degree in violation of §§ 53a-48 (a)and53a-59 (a)(5) and possession of an assault weapon in violation of General Statutes § 53-202c.⁵Additionally, prior to the start of trial, the defendant pleaded guilty to three counts of theft of a firearm in violation of General Statutes § 53a-212 (a).⁶The defendant appeals from the judgment of conviction pursuant to General Statutes § 51-199 (b)(3).

The defendant claims on appeal that: (1) his guilty pleas were involuntary because the trial court, his defense counsel and the prosecutor improperly failed to inform him that his pleas could and would be used against him at trial; (2) his convictions for manslaughter in the first degree with a firearm and conspiracy to commit manslaughter in the first degree with a firearm deprived him of his sixth amendment right to notice; (3) his convictions for conspiracy to commit manslaughter in the first degree with a firearm and conspiracy to commit assault in the first degree violate the double jeopardy clause; and (4)the trial court improperly permitted the introduction of hearsay statements in violation of his sixth amendment right to confrontation.

With respect to the defendant's first claim on appeal, we disagree that his pleas were involuntary and, accordingly, affirm the judgment of the trial court.With respect to the defendant's second claim on appeal, we agree that the defendant's conviction for manslaughter in the first degree with a firearm as an accessory deprived him of his sixth amendment right to notice and, accordingly, modify the judgment of the trial court to manslaughter in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a)and53a-55 (a)(1) and remand the case to the trial court for resentencing.We need not address the defendant's sixth amendment or double jeopardy claims concerning his conviction for conspiracy to commit manslaughter in the first degree with a firearm because we conclude that conspiracy to commit manslaughter in the first degree with a firearm is not a cognizable offense under Connecticut law.Lastly, we disagree with the defendant that the trial court improperly admitted hearsay statements in violation of his sixth amendment right to confrontation.

The jury could have reasonably found the following facts.On the evening of October 10, 2001, the defendant purchased the following stolen firearms: a Smith & Wesson Daniels Cobray M-11 nine millimeter submachine gun (Cobray M-11); a Braco Arms .38 caliber pistol; and a Mossberg 500A shotgun.At the same time, the defendant purchased stolen ammunition for the Cobray M-11 consisting of eight full thirty-five round magazines loaded with nine millimeter Luger Subsonic bullets.A Cobray M-11 is a semiautomatic or automatic assault weapon capable of emptying a thirty-five round magazine in under two seconds.

On October 12, 2001, the defendant, Franki Jones, Markeyse Kelly, Shaunte Little and Marquis Mitchell learned that individuals from the area of New Haven known as "the Tre" were planning to "shoot up" the area of New Haven known as "West Hills" in retaliation for a shooting that had occurred the night before.The Tre area includes Elm Street and Orchard Street and the West Hills area includes the McConaughy Terrace projects.Rather than wait for the retaliation, the defendant, Jones, Kelly, Little and Mitchell decided to "go through the Tre first."

The defendant drove the four men to Jones' house where those who were not armed already retrieved guns and those with lighter colored clothing changed into darker attire.The defendant armed himself with the Cobray M-11.All five men got into Jones' grey Lincoln Town Car and drove to the Tre.After they saw a group of people on the corner of Edgewood Avenue and Orchard Street, Jones parked the car next to a vacant house on Orchard Street.The defendant, Jones, Kelly, Little and Mitchell walked to the corner of Orchard Street and Edgewood Avenue, opened fire on the people on the street corner, then ran back to the Lincoln Town Car and fled the scene.Six people were shot and one of the victims died from his wounds.The victims had no connection to the shooting that had occurred the evening before and were targeted merely because of their presence in the Tre area.After the shooting, the defendant, Jones, Kelly, Little and Mitchell returned to Jones' house.The five men then returned to the scene of the shooting in the defendant's rental car in order to retrieve an empty magazine clip that the defendant had left behind.Discovering a heavy police presence, however, they left the area and went their separate ways.Further facts will be set forth as necessary.

I

The defendant first claims that his three guilty pleas to theft of a firearm in violation of § 53a-212 (a) were involuntary because the trial court, his defense counsel and the prosecutor failed to inform him that the pleas could be used against him at trial.Specifically, the defendant argues that his guilty pleas were involuntary because they: (1) were the product of the trial court's failure to inform him of the direct consequences of his pleas; (2) lacked an adequate factual basis; (3) were induced by the prosecutor's failure to inform him that his pleas would be used against him at trial; and (4) resulted from ineffective assistance of counsel because his attorney failed to inform him that his guilty pleas could be used against him at trial.We reject this claim.

The following additional facts are necessary to our resolution of this claim.On October 10, 2001, Felipe Garcia broke into an East Haven home and stole a Cobray M-11, a Braco Arms .38 caliber pistol and a Mossberg 500A shotgun.Garcia also stole eight full thirty-five round magazines loaded with Remington nine millimeter Luger Subsonic bullets.On that same night, Garcia sold the stolen weapons and ammunition to the defendant for $300.

On June 3, 2003, the defendant pleaded not guilty to the charges arising from his alleged involvement in the Edgewood Avenue and Orchard Street shooting.The defendant pleaded guilty, however, to three counts of theft of a firearm resulting from his purchase of stolen firearms from Garcia.The trial court canvassed the defendant concerning the voluntariness of his guilty pleas.The prosecutor explained the foregoing factual basis for the defendant's guilty pleas and the defendant admitted that these facts were essentially true.The defendant informed the court that he understood and had discussed with his attorney the evidence that would be produced against him at trial and the elements that the state would need to prove in order for him to be found guilty of the crimes charged.The defendant assured the trial court that he understood that theft of a firearm is a felony and that he was aware of the minimum and maximum sentences.Moreover, the defendant informed the trial court that he knew the rights he was foregoing by entering his guilty pleas, that he was entering the pleas of his own free will and that no one had made any threats or promises to induce the pleas.

On July 8, 2003, during the defendant's trial on the remaining charges, the state moved to admit into evidence a transcript of the defendant's guilty pleas to prove that the defendant had been involved in the Edgewood Avenue and Orchard Street shooting and to prove that the defendant had had the means to commit the crimes with which he was charged.The defendant filed a motion in limine to prevent the introduction of his pleas.The defendant argued that the pleas were not relevant because he had pleaded guilty to stealing the weapons, not to possessing them, and that his theft of the weapons on October 10, 2001, did not establish that he possessed the weapons two days later.Further, the defendant claimed that the probative value of his guilty pleas was outweighed by their prejudicial effect.The trial court found the pleas to be relevant, but rather than entering the transcript of the pleas into evidence, the parties entered into a stipulation, which was read to the jury, that the defendant had pleaded guilty to purchasing the weapons and ammunition from Garcia.⁷At no point did the defendant seek to withdraw his pleas.

The defendant concedes that his claim was not preserved at trial and seeks to prevail under State v. Golding,213 Conn. 233, 239-40, 567 A.2d 823(1989).⁸"[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.In the absence of any one of these...