State v. Lewis

• Citation: 245 Conn. 779,717 A.2d 1140
• Decision Date: 04 August 1998
• Docket Number: No. 15323,15323
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Scott LEWIS.

Page 1140

717 A.2d 1140

245 Conn. 779

STATE of Connecticut v. Scott LEWIS.

No. 15323.

Supreme Court of Connecticut.

Argued Jan. 14, 1998.

Decided Aug. 4, 1998.

Lauren Weisfeld, Assistant Public Defender, for appellant (defendant).

Christopher T. Godialis, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and David P. Gold, Assistant State's Attorney, for appellee (State).

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

BORDEN, Associate Justice.

The defendant, Scott Lewis, appeals ¹ from the judgment of conviction, after a jury trial, of two counts of murder in violation of General Statutes §§ 53a-8 and 53a-54a, ² and two counts of felony murder in violation of General Statutes § 53a-54c. ³ The defendant claims that: (1) the evidence was insufficient to prove felony murder beyond a reasonable doubt; (2) the court improperly limited cross-examination of the state's key witness; and (3) the court improperly excluded evidence of a third party confession. The defendant also raises several challenges to the trial court's jury instructions. Specifically, the defendant claims that the court improperly: (1) failed to charge the jury on self-defense; (2) refused to give the jury a missing witness instruction under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960); and (3) instructed the jury regarding reasonable doubt. The defendant also claims that his protection against double jeopardy was violated because he was convicted and sentenced for both murder and felony murder as to each victim. We agree with the defendant's double jeopardy claim and, accordingly, we reverse the judgment in part. In all other respects, however, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1990, the defendant, Stefon Morant and Jeff Rochler were partners engaged in the sale of drugs from a house on Clay Street in New Haven. Ovil Ruiz, the state's key witness, was involved in various aspects of the drug operation and had known the defendant for approximately seven years. As part of this drug operation, one of the victims, Ricardo Turner, stored drugs and drug money in his second floor apartment at 634 Howard Avenue, New Haven. The other victim, Edward Lamont Fields, was Turner's roommate.

Prior to and during the evening of October 10, 1990, Ruiz and Jose Roque, who was also involved in the drug operation, overheard a discussion between the defendant and Morant in which they discussed the possibility that Turner might abscond with the money and drugs in his apartment and leave the area. On the night of October 10, the defendant, Morant and Ruiz drove by the victims' apartment building in a rental car to conduct surveillance. Upon arriving back at the Clay Street house, the defendant told Ruiz to get certain guns that were hidden in the house. Ruiz retrieved a .38 caliber handgun and a .357 caliber handgun, and gave both weapons to the defendant.

The defendant then put both weapons in his own vehicle, and he, Morant and Ruiz drove to Howard Avenue. They arrived at the victims' apartment building at approximately 4 a.m., and the defendant parked his car a short distance away at the corner. Upon arrival, the defendant turned to Morant and Ruiz and said, "look, whatever happens, we keep it between us." The defendant then told Ruiz to keep the car running while the defendant and Morant went upstairs to get the money and drugs. The defendant was armed with both guns as he and Morant walked toward the victims' apartment building.

The building contained five apartments on three floors: two apartments on each of the first and second floors, and a single apartment on the third floor. The victims' apartment was one of the two on the second floor, located at the rear of the building. The building was secured by a locked front security door and a locked back door. Entry into the building required using an intercom system and being "buzzed in" through the front security door by one of the tenants.

The jury also reasonably could have found that the defendant and Morant entered the building. They then proceeded to the second floor where they entered the victims' apartment and the defendant shot both victims to death with the .357 caliber handgun. They then ran through the hall, down the stairs and out the front door.

Meanwhile, shortly after hearing several gunshots, Ruiz, who had switched to the driver's seat of the defendant's car, saw the defendant and Morant running. He made a U-turn, picked them up in front of Turner's building, and immediately drove away. The defendant was carrying a brown bag labeled "Community Bank," which was "bulging" with cash, and Morant carried a blue gym bag labeled "Puma," which was full of drugs. At that time, the defendant was armed with the .357 caliber handgun, and Morant was armed with the .38 caliber handgun.

As Ruiz drove away, the defendant and Morant insisted that Morant drive because Ruiz was driving erratically. Ruiz switched to the back seat, where he confirmed the contents of the bags. After a short while, the defendant asked Morant whether he thought they were dead, and Morant answered, "don't worry about it, forget about it, they got what they deserved." The three men then returned to Clay Street, and later that morning turned over all of the money to Rochler.

On the same morning of October 11, 1990, Diane Basilicato, who lived in the second floor front apartment of the victims' apartment building on Howard Avenue, returned home and entered her apartment shortly after 4 a.m. She did not hear the buzzer system operate or anyone enter the building after she had entered. Within a few minutes of entering her apartment, Basilicato heard five or six loud "bangs," and heard two people running down the stairs and out of the building.

Shortly thereafter, the tenant in the first floor rear apartment called the police to report hearing a disturbance and a "loud thump" from the second floor apartment, followed by the appearance of a bullet hole in the ceiling of her apartment. The police were dispatched to the building at 4:34 a.m., and arrived approximately two minutes later. The police found both the front security door and the back door locked.

Basilicato admitted the police into the building through the use of the intercom system. Upon arrival, the police entered the second floor rear apartment and found the bodies of the victims. Turner, clad only in underwear, was lying face down on the bed. He had been shot four times, including one shot to the top of the head that split his brain into three pieces, one to his back, and one to his side. ⁴ Fields, also clad only in underwear, was lying on the floor next to the bed. He had been shot twice in the back from a distance of no more than eighteen inches and had bled to death from his wounds. The ballistics investigation disclosed that all the bullets had been fired from a .357 caliber handgun. There was no gun found near the bodies of the victims.

Several weeks after the shootings, both Ruiz and Roque saw the defendant discard the .357 caliber handgun into the Mill River under the Chapel Street Bridge in New Haven, when all three were present in the park at Chapel Street. After questioning Ruiz in January, 1991, the police searched the river near the Chapel Street park for the .357 caliber handgun that the defendant had thrown in the river, but were unable to recover it.

At the trial, the defendant raised an alibi defense, claiming that he had worked the entire night at the Minuteman Press on Grand Avenue in New Haven, which was partly owned by Rochler. The jury found the defendant guilty of both murder and felony murder for the death of Turner and Fields. The trial court rendered judgment in accordance with the jury's verdict. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support his convictions of felony murder because neither of the underlying crimes of robbery or burglary was proven. Specifically, the defendant claims that the state could not prove that he committed larceny, an element of robbery and burglary, because the defendant was the owner of the money and drugs taken from the victims' apartment. He also contends that there was no evidence of an unlawful entry to establish the crime of burglary, and that without proof of all of the elements of the underlying crimes he could not be convicted of felony murder. The state contends that there was sufficient evidence of the underlying crimes. We conclude that there was sufficient evidence to prove the commission of the underlying crime of robbery. We need not, therefore, consider whether there was sufficient evidence of a burglary.

"In reviewing a sufficiency of the evidence claim, the dispositive question is whether, viewing the evidence in the light most favorable to sustaining the verdict, the trier of fact reasonably could have concluded, from the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... Although the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt." (Citations omitted; internal quotation marks omitted.) State v. Raguseo, 225 Conn. 114, 119, 622 A.2d 519 (1993); State v. Stanley, 223 Conn....