State v. Montanez

• Decision Date: 28 May 1991
• Docket Number: No. 13750,13750
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Ricardo MONTANEZ.

Page 149

592 A.2d 149

219 Conn. 16

STATE of Connecticut v. Ricardo MONTANEZ.

No. 13750.

Supreme Court of Connecticut.

Argued March 26, 1991.

Decided May 28, 1991.

Patricia A. King, with whom, on the brief, was William F. Gallagher, Sp. Public Defenders, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., for appellee (state).

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

BORDEN, Justice.

The defendant, Ricardo Montanez, appeals from the judgment of conviction, after a jury trial, of murder in violation of General Statutes § 53a-54a(a). ¹ He claims that the trial court improperly: (1) denied his motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that he intended to kill the victimS (2) refused to charge the jury on the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56(a)(1); ² and (3) admitted a prior consistent statement of a witness for the state. We affirm the judgment.

The jury reasonably could have found the following facts. The victim, William McDougall, who lived in Fairfield, drove into Bridgeport in an attempt to retrieve money for a friend who had been cheated in a drug transaction. McDougall arrived at Clinton Avenue, where a group of people were standing in the street. McDougall backed his car into the group, knocking down one person who was on a bicycle, and then drove down the street, hitting a telephone pole at the corner of Clinton Avenue and Railroad Avenue. Four of the people in the group, including James Brown and Ilideo Leite, ran after McDougall, who had exited his car and was walking away. The four caught McDougall and beat him with a pipe until he fell to the ground.

As Brown turned and walked away, the defendant ran by him with a gun in his hand. The defendant ran to a point approximately two feet from where McDougall was lying on the ground, and fired two shots at McDougall in rapid succession, one of which hit him in the right leg. The defendant then stopped Leite, who had started to run away, and handed him the gun. Leite went to the defendant's house, and, when the defendant arrived there, Leite returned the gun to him and left. Although the gun was never recovered, two shell casings were found at the scene. McDougall died later that day in the hospital, after suffering a massive loss of blood. The cause of death was the gunshot wound to his right leg, which had nearly severed his right femoral artery, the main artery for carrying blood to the lower leg and foot.

The defendant first claims that the evidence was insufficient to establish that he had acted "with intent to cause the death of" McDougall, as required by General Statutes § 53a-54a(a). He argues that Brown and Leite, who were the only witnesses to the shooting, "gave widely divergent and incomplete testimony" regarding the defendant's conduct, and that neither version "provide[d] evidence sufficient to support only one reasonable finding--that the defendant specifically intended to cause McDougall's death...." This argument is without merit.

The principal difference between the testimony of Brown and that of Leite concerns the distance between the defendant and McDougall at the time of the shooting. Brown testified that the distance was two to three feet, while Leite estimated that the distance was approximately thirty feet. Because we conclude that the jury reasonably could have inferred intent to cause death from Brown's testimony alone, we need not discuss Leite's testimony as part of this analysis. ³

The two-part test for appellate analysis of a claim of evidentiary insufficiency is well established. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). It is immaterial to the probative force of the evidence that it consists, in whole or in part, of circumstantial rather than direct evidence. Id., at 381, 579 A.2d 1066. Furthermore, in determining whether the jury reasonably could have found guilt, we ask whether any rational factfinder could have done so. State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986).

"In order to be convicted under our murder statute, the defendant must possess the specific 'intent to cause the death' of the victim. General Statutes § 53a-54a. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3(11)...." State v. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990). Ordinarily, intent can only be proved by circumstantial evidence; it may be and usually is inferred from the defendant's conduct. Id. Intent to cause death may be inferred from " ' " ' "the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death." ...' " ' " Id., at 82-83, 570 A.2d 203, quoting State v. Patterson, 213 Conn. 708, 721, 570 A.2d 174 (1990). Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. State v. Amarillo, 198 Conn. 285, 300-304, 503 A.2d 146 (1986).

Brown testified that he saw the defendant in a parked car on Clinton Avenue just before McDougall backed up his car into the group of people. He also testified that he saw the defendant, gun in hand, run toward McDougall and, from two to three feet away, fire two shots in rapid succession at him as he lay motionless on the ground. The medical examiner testified that most people with the type of injury suffered by McDougall do not live long enough to get to a hospital. Based on this evidence, the jury reasonably could have concluded beyond a reasonable doubt that the defendant intended to cause McDougall's death.

The defendant's argument rests on the assertion that he hit McDougall with only one of his two shots, and that McDougall was hit in the thigh rather than "in a vital area." The defendant claims that those facts preclude an inference that he "specifically intended to cause McDougall's death, rather than injure or frighten him." We disagree. While it would have been permissible to infer from those facts that the defendant intended only to injure or frighten McDougall, ⁴ the evidence did not preclude the equally permissible inference that the defendant intended to kill the victim by shooting at him twice as he lay on the ground two feet away.

The defendant next claims that the trial court improperly refused his request to charge the jury on the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56(a)(1). ⁵ We are not persuaded.

This claim focuses on the third and fourth requirements of the well established Whistnant test for determining whether a defendant is entitled to a lesser included offense instruction. ⁶ State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Those requirements are that "(3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense, but guilty of the lesser." Id.

Manslaughter in the second degree under § 53a-56(a) requires that a defendant "recklessly [cause] the death of another person." A person acts "recklessly" with respect to a particular result "when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur...." General Statutes § 53a-3(13). In this case, the differentiating element between murder and manslaughter in the second degree was the defendant's state of mind, namely, whether he intentionally killed McDougall or recklessly caused his death. "Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result." State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986). Under the facts presented, therefore, in order for the defendant to have been entitled to the lesser included charge he requested, the evidence bearing on his state of mind must have been such that the jury reasonably could have found that he acted recklessly, rather than intentionally, with respect to McDougall's death.

In determining whether the defendant was entitled to a lesser included offense charge, we view the evidence "in a light most favorable to the defendant's request." State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989). Evidence is " 'sufficiently in dispute' where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal." State v. Manley, 195 Conn. 567, 579, 489 A.2d 1024 (1985), quoting State v. Whistnant, supra. Nonetheless, jurors " 'are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence ... from which inferences can fairly be drawn.' " State v. Manley, supra, quoting Schultz v. Pennsylvania R. Co., 350 U.S. 523, 526, 76 S.Ct. 608, 610, 100 L.Ed. 668 (1956). They should not be encouraged to engage in speculation. State v. Manley, supra, 195 Conn. at 580, 489 A.2d 1024.

The defendant relies on the...