State v. Lewis

• Citation: 600 A.2d 1330,220 Conn. 602
• Decision Date: 17 December 1991
• Docket Number: No. 14034,14034
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. David LEWIS.

Page 1330

600 A.2d 1330

220 Conn. 602

STATE of Connecticut v. David LEWIS.

No. 14034.

Supreme Court of Connecticut.

Argued Sept. 24, 1991.

Decided Dec. 17, 1991.

John R. Williams, New Haven, for appellant (defendant).

Rita M. Shair, Asst. State's Atty., with whom were James G. Clark, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and BORDEN, JJ.

CALLAHAN, Justice.

This appeal arises from various rulings made in the course of the criminal trial of the defendant, David Lewis. The defendant was charged with one count of the crime of murder in violation of General Statutes § 53a-54a ¹ and two counts of the crime of conspiracy to commit murder in violation of General Statutes §§ 53a-48 ² and 53a-54a. He was tried before a jury of twelve. The jury returned a verdict finding the defendant guilty of murder and of one count of conspiracy to commit murder, but acquitting him of the second conspiracy count. The defendant was sentenced to a term of fifty years on the murder count and to a concurrent term of twenty years on the conspiracy count, resulting in a total effective sentence of fifty years imprisonment. The defendant appealed from the judgment of conviction to this court. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On Sunday evening, September 18, 1988, the defendant and Trevor Pinnock, who were friends, were playing soccer with other participants at a field near Hillhouse High School in New Haven. The victims, Fitzroy "Soup" Pink and Kenneth Pascoe, although not participants in the game, were in the vicinity of the soccer field while the match was being played. At the conclusion of the game, the defendant and Pinnock left the soccer field together and walked to the defendant's car, which was parked on County Street, adjacent to the soccer field. There the two men obtained handguns from inside the vehicle. Thereafter, both armed, they momentarily separated. Pinnock walked over to Pascoe, who was seated in his car, and pointed an automatic handgun at his head. Pinnock told Pascoe, "You're dead," and pulled the trigger, but his gun failed to fire. Moments later the defendant aimed his gun at Pink and, at a distance of approximately two car lengths, shot Pink three or four times, killing him. The defendant and Pinnock then ran from the scene together.

At the time of the defendant's arrest nearly one year later, the police discovered an identification card in the defendant's possession that bore Pinnock's name and photograph. When questioned about the card, the defendant asserted that he knew no one named Trevor Pinnock. He did, however, admit having shot and killed Pink.

On appeal, the defendant claims that his convictions should be set aside because: (1) there was insufficient evidence to support a conviction for the crime of conspiracy to commit murder; (2) the trial court erroneously admitted evidence that was seized in violation of the federal constitution; (3) the trial court improperly failed to suppress his confession obtained in violation of his constitutional rights; (4) the jury venire was provided with erroneous preliminary instructions concerning the reasonable doubt standard and the credibility to be accorded to the testimony of police officers; (5) the trial court failed to instruct the jury on self-defense; (6) the defendant's right to confront the witnesses against him was violated when his cross-examination of one of the state's witnesses was improperly limited; and (7) his rights to due process and to confront his accusers were violated when the trial court required him to disclose information concerning his anticipated cross-examination of that witness prior to the state's direct examination.

I

The defendant first claims that the conviction of conspiracy to murder Pink was unsupported by the evidence. Specifically, he claims that there was insufficient evidence presented by the state to allow the jury to find beyond a reasonable doubt that he and Pinnock agreed to murder Pink. We disagree.

The standard of review of an insufficiency claim is clear. "We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt." State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, --- U.S. ----, 111 S.Ct. 430, 112 L.Ed.2d 413 (1990); State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987); State v. Garrison, 203 Conn. 466, 471, 525 A.2d 498 (1987).

The defendant was charged with conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. "To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed...." (Internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense. Id., 4. To convict the defendant of the offense as charged, the jury was required to find that: (1) the defendant agreed with Pinnock to cause the death of another person; (2) at the time of the agreement, the defendant and Pinnock intended that the death be caused; and (3) the defendant or Pinnock committed an overt act in furtherance of the conspiracy by shooting and killing Pink. While the state must prove an agreement, "the existence of a formal agreement between the conspirators need not be proved" because "[i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose." (Internal quotation marks omitted.) State v. Ghere, 201 Conn. 289, 299, 513 A.2d 1226 (1986).

The defendant asserts that the jury could not have rationally determined that his actions and those of Pinnock were in concert, the result of a conspiracy, rather than separate and distinct events. On the basis of the evidence and the inferences reasonably to be drawn therefrom, however, we conclude that there was sufficient evidence to support the jury's verdict. The state showed that on September 18, 1988, the defendant and Pinnock, who were friends, played soccer together and met with one another immediately after the soccer game. There was also evidence from which the jury could infer that the men did not play soccer while armed with handguns, and that together they obtained guns from the defendant's car at the conclusion of the game. Further, there was testimony to indicate that immediately after the men acquired the guns, Pinnock approached Pascoe, threatened him with death, and pulled the trigger of his weapon, which fortunately failed to fire, and that within moments the defendant shot and killed Pink. The evidence disclosed that, following those events, the defendant and Pinnock fled the scene together. Further, the defendant's statement that he was not acquainted with Pinnock, despite the fact that he possessed an identification card bearing Pinnock's name and photograph, could well have been construed by the jury as a conscious attempt by the defendant to distance himself from his coconspirator. From the manner in which the murder of Pink and the apparent attempted murder of Pascoe were carried out, and from the defendant's later deception, the jury could have inferred that the crime was planned and agreed upon in advance of its occurrence. Once the jury found the existence of an agreement to kill Pink, the evidence, including the defendant's confession, clearly supported the finding that Pink was killed in furtherance of that agreement and that the defendant and his coconspirator intended to cause Pink's death. There was sufficient evidence from which the jury could conclude beyond a reasonable doubt that the defendant committed every element of the offense of conspiracy to commit murder.

II

The defendant next argues that the identification card bearing the name and photograph of his alleged coconspirator, Pinnock, was seized from his wallet by the New Haven police department in violation of the fourth amendment to the federal constitution. ³ In support of his claim, the defendant asserts that he was searched pursuant to his arrest on August 15, 1989, and that his wallet was seized and taken into the possession of the police at that time, but that the police did not complete the search of the wallet that revealed the identification card until two days after his arrest. The defendant argues that when the card was later discovered in the wallet, the officers had no search warrant and their conduct failed to satisfy any of the exceptions to the warrant requirement. We conclude that the defendant's claim has no merit.

In order to protect the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"; U.S. Const., amend. IV; the United States constitution ordinarily mandates that the police obtain a search warrant before seizing the possessions of an accused. "[A] search conducted without a warrant issued upon probable cause is per se unreasonable ... subject only to a few specifically established and well-delineated exceptions. Schneckloth v....