State v. Hanks, s. 13430

• Decision Date: 27 October 1995
• Docket Number: Nos. 13430,13636,s. 13430
• Citation: 665 A.2d 102,39 Conn.App. 333
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ronell HANKS. STATE of Connecticut v. Jose ROQUE.

Page 102

665 A.2d 102

39 Conn.App. 333

STATE of Connecticut v. Ronell HANKS.

STATE of Connecticut v. Jose ROQUE.

Nos. 13430, 13636.

Appellate Court of Connecticut.

Argued June 6, 1995.

Decided Sept. 12, 1995.

Certification Denied Oct. 27, 1995.

Neal Cone, Assistant Public Defender, for appellants (defendants).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and John C. Smriga, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, FOTI and SCHALLER, JJ.

SCHALLER, Judge.

The defendants appeal from the judgments of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(4), ¹ assault of an employee of the department of correction in violation of General Statutes § 53a-167c(a)(1), ² attempted escape in the first degree in violation of General Statutes § 53a-49 ³ and § 53a-169(a)(1), ⁴ and rioting at a correctional institution in violation of General Statutes § 53a-179b(a). ⁵ The defendant Jose Roque also appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree and escape in the first degree in violation of General Statutes §§ 53a-48, ⁶ 53a-59 and 53a-169.

The defendants first claim that the state presented insufficient evidence to support their convictions for first degree assault as accessories and attempted escape, and Roque's conviction of conspiracy. The defendants also claim that the trial court improperly denied the defendants a fair trial (1) by admitting into evidence Roque's testimony that he had previously escaped from the same jail, and (2) by allowing the prosecutor to tell the jury that an acquittal would mean that they came to the conclusion that the law enforcement officers had lied under oath. Furthermore, the defendants claim that the trial court improperly instructed the jury in several respects: (1) in focusing the jury's attention on the issue of identity rather than guilt; (2) in emphasizing the defendants' interest in the outcome of the case when instructing on credibility; (3) in instructing the jury on the state's burden of proof; and (4) in failing to provide adequate instructions on the charged offenses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 16, 1993, Correction Officer Gary DuBois was working the midnight to 8 a.m. shift in block 39A at the community correctional center in Bridgeport. The block consisted of three corridors, A7, A8 and A10. Each corridor contained twelve cells. A guard bubble was located in the middle of the block allowing the guard to observe all three corridors. The bubble contained controls for all of the corridors and cell doors in the bubble. A dayroom was located at the end of each corridor next to the guard bubble.

At 12:30 a.m., DuBois let certain inmates out of their cells to clean the block. The inmates had a mop, a mop wringer and a bucket with which to clean. At some point, an inmate, John Baldwin, called DuBois over to the cell of another inmate, Emile King, in the A8 corridor. As DuBois spoke with King, DuBois was hit from behind. Inmates Baldwin and Curtis Davis then jumped DuBois, hit him in the face and took his keys and body alarm.

Baldwin, Davis, another inmate, Patrick Nemhart, and the defendant Roque all struck DuBois. Davis hit DuBois with the mop wringer that weighed about ten pounds. Roque took a swing at DuBois and then went to the bubble. The defendant Ronell Hanks kicked DuBois and was then told by Davis and Baldwin that he should go to the front of the bubble and look out for other correction officers. Baldwin and Curtis dragged DuBois into a cell.

Officer Anthony Wilson was on duty in block 38A. He noticed a plastic bag over a corridor door and the door sliding back and forth in block 39A. He called DuBois on the telephone, but did not get an answer. Other correction officers responded when DuBois did not answer his telephone. The corridor door leading to the block had butter smeared on it, but the officers still were able to see into the block. The officers then noticed that the defendant Roque was in the guard bubble and that almost all the lights in block 39A had been turned off. The officers also heard loud booming noises.

One of the responding officers, William Jackson, saw Roque in the bubble. Jackson and Officer Orlando McGee entered block 39A. McGee saw three inmates including Hanks in the corridor. Jackson found DuBois in a cell with blood on his mouth and the left side of his jaw swollen. Jackson and McGee found Roque in another inmate's cell.

When the officers inspected the A10 dayroom they found the screen bent up on a window leading to an outside yard and two fire extinguishers that were generally kept in the bubble.

I

The defendants claim that there was insufficient evidence to sustain their convictions of first degree assault as accessories and attempted escape, and Roque's conviction of conspiracy.

"When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict.... We then determine whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) State v. Carpenter, 214 Conn. 77, 78-79, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S.Ct. 877, 116 L.Ed.2d 781 (1992). "In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct." (Internal quotation marks omitted.) State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). "The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt." State v. Ruscoe, 212 Conn. 223, 245, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990).

A

The defendants assert that the state did not present sufficient evidence of accessorial culpability with regard to assault in the first degree. General Statutes § 53a-8(a) provides in relevant part that "[a] person, acting with the mental state required for commission of an offense, who ... intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." It is necessary that a defendant have the mental state required for the commission of a crime while intentionally aiding another. "[M]ere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it." (Internal quotation marks omitted.) State v. Crump, 201 Conn. 489, 494, 518 A.2d 378 (1986). In the present case, there was sufficient evidence, together with the reasonable inferences drawn therefrom, for the jury to find that the defendants were more than mere inactive companions.

The evidence presented at trial was sufficient for the jury to find beyond a reasonable doubt that the defendants were involved in the assault of DuBois. Both Baldwin and Davis testified that they attacked DuBois and pushed him into a cell. Inmate Richard Gomez testified that he saw both defendants hit DuBois at the time Baldwin and Davis were attacking him. Gomez saw Roque punch DuBois as he was being dragged to the cell. He also saw Hanks kick DuBois. Roque then went to the bubble to control the various doors and Hanks went to a corridor door to act as lookout. Intent is rarely proven by direct evidence, but is usually proven by circumstantial evidence and the inferences that can reasonably be drawn therefrom. See State v. Farrar, 7 Conn.App. 149, 155, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). From the aforementioned facts, the jury could reasonably have found beyond a reasonable doubt that the defendants were not innocent bystanders, but rather active participants in the assault of DuBois. See, e.g., State v. Tucker, 9 Conn.App. 161, 163-65, 517 A.2d 640 (1986). The defendants' claim that there was insufficient evidence that they actively participated in the assault, therefore, fails.

B

The defendants claim that there was insufficient evidence to sustain the convictions of attempt to escape. Under § 53a-49(a)(1), a defendant acting with the required mental state is guilty of attempt to commit a crime when he "[i]ntentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be...." The acts of the defendants must go beyond the stage of mere preparation to an act done with the intent to commit the crime. State v. Green, 194 Conn. 258, 276, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985). Moreover, under § 53a-49(a)(2), a defendant with the required mental state is guilty of such attempted crime when he "intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." "To constitute a 'substantial step,' " the conduct must be " 'strongly corroborative of the actor's criminal purpose.' " State v. Green, supra, 194 Conn. at 276, 480 A.2d 526. This...