State v. Moye

• Citation: 986 A.2d 1134,119 Conn.App. 143
• Decision Date: 02 February 2010
• Docket Number: No. 30737.,30737.
• Parties: STATE of Connecticut v. John MOYE.
• Court: Appellate Court of Connecticut

986 A.2d 1134

119 Conn.App. 143

STATE of Connecticut v. John MOYE.

No. 30737.

Appellate Court of Connecticut.

Argued November 17, 2009.

Decided February 2, 2010.

Kent Drager, senior assistant public defender, New Haven, for the appellant (defendant).

Susann E. Gill, supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Jonathan C. Benedict, former state's attorney, for the appellee (state).

LAVINE, BEACH and PELLEGRINO, Js.

LAVINE, J.

The defendant, John Moye, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35(a) and, after his plea of guilty under the Alford doctrine,¹ of criminal possession of a pistol in violation of General Statutes § 53a-217c (a)(1). On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of murder, (2) the court improperly instructed the jury on the murder charge, (3) the prosecutor committed reversible impropriety during the defendant's testimony and (4) the court improperly canvassed the defendant with regard to his Alford plea to the charge of criminal possession of a pistol. We affirm the defendant's conviction of murder and carrying a pistol without a permit. We reverse, however, the defendant's conviction of criminal possession of a pistol.

The following facts, which the jury reasonably could have found, are relevant to the defendant's appeal. On the evening of April 30, 2005, after Clarence Jones, the victim, asked him for a ride, Jerry Booker picked up Jones, Roderick Coleman and the defendant. The group briefly stopped at Booker's house in West Haven and then proceeded to the Ebony Lounge in New Haven. Coleman and the defendant went inside for approximately fifteen minutes, while Booker and the victim waited in the car. When Coleman and the defendant returned to the car, Coleman asked Booker to drive to the Pleasant Moments Cafe in Bridgeport, where his girlfriend worked as a dancer.

Upon arriving at Pleasant Moments Cafe, Booker, Coleman and the victim entered the club while the defendant stayed in the car. The three men who went inside the club were searched for weapons before they were allowed to enter. When Pleasant Moments Cafe closed for the night, Booker, Coleman and the victim emerged from the club with Tamara Wilson, Coleman's girlfriend, Tawana Little and a third woman by the name of Jada. They all got into Booker's car. Booker was the driver, the victim and Jada rode in the front passenger seat, the defendant sat behind Booker, Little was seated next to him, and Wilson sat on Coleman's lap behind the front passenger's seat.

Booker next drove to a nearby gasoline station. Booker, the victim and Jada got out of the car and entered the gasoline station. With the two men and Jada out of the car, the defendant began telling the other passengers about his belief that Booker and the victim planned to rob him. He said that he was going to "act up." Those who went into the gasoline station returned to the car, and the group left the gasoline station to drop off Jada.

As Booker was driving to Jada's house, his cellular telephone rang. He answered the telephone and handed it to the victim when he realized that it was the victim's mother calling. Then a loud bang came from the back-seat. The victim's mother heard someone say: "Call 911. He's been shot." The defendant, holding a gun, ordered everyone to get out of the car. Booker and Jada got out of the car, the defendant got into the driver's seat, pushed the victim's body out of the car and drove away.

After driving a short distance, the defendant stopped the car, wiped down the steering wheel and car handles, and exited the car with Little, Wilson and Coleman. The group got into a taxicab and went to Little's house in New Haven. Once at Little's house, the defendant again told the others that he believed that he was going to be robbed and that was why he shot the victim. He told Little that he had tried to shoot the victim in the face and also told Little and Wilson that they should "take it to the grave."

The defendant was arrested on May 20, 2005. He was found in a house in Stamford, lying across the seats of several chairs under a dining room table. The defendant was charged with murder, carrying a pistol without a permit and criminal possession of a pistol. He was found guilty of murder and carrying a pistol without a permit, and entered an Alford plea with regard to the criminal possession of a pistol charge. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant's first claim on appeal is that there was insufficient evidence to support the jury's guilty verdict as to the murder conviction. Specifically, he argues that the evidence was insufficient to prove that he intentionally caused the victim's death.² We disagree.

"In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 540-41, 975 A.2d 1 (2009) after remand, 118 Conn.App. 733, 984 A.2d 796 (2010).

"To establish a violation of § 53a-54a, the crime of murder, the state must prove beyond a reasonable doubt that the defendant, with intent to cause the death of another person . . . cause[d] the death of such person or of a third person. . . . [T]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. . . . Because direct evidence of the accused's state of mind is rarely available . . . intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . 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. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. . . . In addition, intent to kill may be inferred from evidence that the defendant had a motive to kill. . . . Our law also provides that the defendant's state of mind at the time of the shooting may be proven by his conduct before, during and after the shooting. Such conduct yields facts and inferences that demonstrate a pattern of behavior and attitude toward the victim by the defendant that is probative of the defendant's mental state." (Citations omitted; internal quotation marks omitted.) State v. Aviles, 107 Conn.App. 209, 217-18, 944 A.2d 994, cert. denied, 287 Conn. 922, 951 A.2d 570 (2008).

Our Supreme Court has stated that a person "who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill." (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996). Here, the defendant, seated in the backseat of a car, shot the victim, seated in the front passenger's seat, in the head.³ Although the defendant testified that the gun went off accidentally as he struggled with the victim for its control, no other witness testified about such a struggle. Additionally, there was testimony from one of the witnesses that the defendant stated that he had tried to shoot the victim in the face. The defendant's use of a gun coupled with his later statement, in light of all the circumstances, was sufficient evidence for the jury to conclude that the defendant had the conscious objective to cause the death of the victim.

Furthermore, the defendant's actions following the shooting are indicative of a consciousness of guilt. "A trial court may admit [e]vidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight, concealment of evidence, or a false statement, [which] is ordinarily the basis for a charge on the inference of consciousness of guilt. . . . In seeking to introduce evidence of a defendant's consciousness of guilt, [i]t is relevant to show the conduct of an accused . . . as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act." (Internal quotation marks omitted.) State v. Pascal, 109 Conn.App. 55, 72, 950 A.2d 566, cert. denied, 289 Conn. 917, 957 A.2d 880 (2008). The jury heard testimony from witnesses that the defendant wiped down the steering wheel and car door handles before fleeing the scene of the crime, threatened witnesses by telling them to "take it to the grave" and was found by police hiding by lying on the seats of several chairs under a table. Taken together, the consciousness of guilt evidence in combination with the defendant's use of a deadly weapon provided sufficient evidence for the jury to find that the defendant intended to cause the victim's death.

II

The defendant's next claim is that the court...