State v. Otero

• Decision Date: 21 July 1998
• Docket Number: No. 17381,17381
• Citation: 715 A.2d 782,49 Conn.App. 459
• Parties: STATE of Connecticut v. Luis OTERO.
• Court: Connecticut Court of Appeals

Page 782

715 A.2d 782

49 Conn.App. 459

STATE of Connecticut v.Luis OTERO.

No. 17381.

Appellate Court of Connecticut.

Argued March 24, 1998.

Decided July 21, 1998.

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

John A. East III, Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Dennis J. O'Connor, Senior Assistant State's Attorney, for appellee(State).

Before EDWARD Y. O'CONNELL, C.J., and LAVERY and LANDAU, JJ.

LANDAU, Judge.

The defendant, Luis Otero, appeals from a judgment of conviction, rendered after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-54a (a)¹and53a-8 (a).²The defendant claims that the trial court improperly instructed the jury regarding the laws of (1) circumstantial evidence, inferences and intent, (2) consciousness of guilt and (3) reasonable doubt.We affirm the judgment of the trial court.

The jury reasonably could have found the following facts.Anthony Grandison traveled from New York with Christopher Duhaney, Vernail Blount and Corey Williams to establish drug selling territory at a housing project on Davis Drive in Bristol.On April 11, 1993, Grandison, Duhaney, Blount and Williams visited the home of Ethel Hughes, ³ where her fourteen year old daughter Shanequa Coleman and three younger children also resided.As they drove into the area of the housing project, they heard gunshots that were being fired by several Hispanic men a couple of houses away from Hughes' home.The four men entered Hughes' home and were sitting at a table in her kitchen drinking beer when five to seven Hispanic men, including the defendant, who was wearing a ponytail, walked into Hughes' home.The group of Hispanic men walked through the kitchen and entered the living room.As they returned to the kitchen area to exit the home, the defendant gave Grandison a mean look.

Grandison, Blount, Williams and Duhaney gave their money to Hughes' daughter, Coleman, because they had been robbed by two of the Hispanic men, known as Sonny and Jay, who had just been in Hughes' home.Grandison then exited Hughes' home, and the defendant was in the yard outside of the home.Blount then joined Grandison and was followed shortly thereafter by Williams and Duhaney.The defendant whistled and several men appeared, including Sonny and Jay, the men who had just been in Hughes' home.The defendant, who was approximately three to four feet from Grandison, stated that he hoped Grandison's men had guns, because his men had guns.Grandison attempted to dissuade the defendant from beginning a gun fight, but the defendant replied, "Let's do this.Let's go in the street and bust off."⁴Grandison declined.The defendant replied, "Let's do it right here, then, if you don't want to go in the street."The defendant, Sonny and Jay then lifted their shirts to expose the handles of their guns and said, "Let's do this."⁵

Grandison attempted to go back into Hughes' home, but the door was locked.The defendant pulled out a shiny object and several gunshots were heard.When Grandison turned to face the men, he was shot fatally in the chest.Blount, after watching Grandison fall against some garbage cans, ran from the scene.While running, Blount was shot in the leg.Coleman, who had been in her upstairs bedroom viewing parts of the altercation, saw Sonny and Jay going through Grandison's pockets.She screamed and they ran.She then ran to her grandparents' home nearby and called 911.Blount hid nearby and came out to talk to the police when they arrived.

The defendant voluntarily went to the Bristol police department for questioning.When the officers asked the defendant if they could take his picture, the defendant acquiesced but insisted that the officers allow him to take out the elastic that was holding his hair in a ponytail.The defendant stated that he did not want to be mistaken for another man known as "Green Eyes."

Having set out the relevant facts, we now turn to the principles that guide our analysis of the defendant's claims.Because the defendant's claims challenge the constitutionality of the trial court's jury instructions, "[f]irst, we set out our standard of review of a constitutional attack on the instructions of the trial court.'[T]he standard of review to be applied to the defendant's constitutional claim is whether it is reasonably possible that the jury was misled....In determining whether it was indeed reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case....The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge....The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.State v. Prioleau, [235 Conn. 274, 284, 664 A.2d 743(1995) ].'... State v. Taheri, 41 Conn.App. 147, 157, 675 A.2d 458, cert. denied, 237 Conn. 931, 677 A.2d 1374(1996)."State v. Billie, 47 Conn.App. 678, 688-89, 707 A.2d 324, cert. granted on other grounds, 244 Conn. 933, 717 A.2d 231(1998).

I

The defendant first argues that the trial court improperly instructed the jury regarding the law of circumstantial evidence, inferences and intent, thereby allowing him to be convicted using an impermissibly low standard of proof in violation of the constitution.The defendant concedes that he did not file a request to charge on this claim and that he did not preserve this claim for appellate review but, nonetheless, seeks review pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576(1973);State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823(1989), ⁶ and the plain error doctrine.Practice Book(1998 Rev.) § 60-5, formerly § 4061.We will review this claim, because the record is adequate for review and the defendant alleges the violation of his fundamental right to due process of law.⁷SeeState v. Billie, supra, 47 Conn.App. at 687-88, 707 A.2d 324.The defendant's claim fails, however, because the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial.

The defendant argues that the trial court improperly instructed the jury that the members could "decide that a fact had been proven by circumstantial evidence ... [by considering] all the evidence 'in light of [the jury's] reasoning, experience, and common sense.' "The defendant further points to the trial court's assertion that the jury could " 'draw any and all logical inferences that [they] find reasonable and logical from the evidence that [they] hear.' "The defendant argues that the "jury was never once told that the inferences it had to find proven to establish an element of the crime--that the defendant has the intent to murder--had to be proven beyond a reasonable doubt.On the contrary, it was provided with a far lesser standard, which was that the inference of intent to murder was merely 'reasonable and logical' when considered 'in light of [the jury's] reasoning, experience, and common sense.' "⁸

The trial court referred, in its instruction on intent, to the standard of inferences given in connection with its instruction regarding circumstantial evidence.In a minicharge prior to hearing evidence, after asserting that the state must prove each essential element beyond a reasonable doubt, the trial court explained that the jurors may "draw any and all logical inferences that you find reasonable and logical from the evidence that you hear."The trial court then described the difference between direct and circumstantial evidence and stated that "before you decide that a fact has been proven by circumstantial evidence, you must consider all the evidence in light of reason, experience and common sense."The trial court repeated its instruction regarding direct and circumstantial evidence and the manner in which such evidence should be considered by the jury.

This issue is controlled by State v. Johnson, 44 Conn.App. 125, 688 A.2d 867(1997).In Johnson, the defendant challenged the trial court's instruction to the jury that " 'before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in light of reason, experience, and common sense....What a person's intention or knowledge has been is usually to be determined by inference....The only way a jury can ordinarily determine what a person's intention or knowledge was at any given time, aside from that person's statements or testimony, is by determining what that person's conduct was and what circumstances were surrounding that conduct and from that infer what his purpose, intention or knowledge was....To draw such an inference is not only the privilege but also the proper function of the jury, provided, of course, that the inference drawn complies with the standard for inferences as explained earlier by me.' "Id., at 134, 688 A.2d 867.

This court rejected the defendant's argument that he was entitled to a new trial because the instruction on inferences and intent did not declare that it was the state's burden to prove guilt beyond a reasonable doubt.Id., at 135-36, 688 A.2d 867.This court also rejected his argument that the court should have instructed the jury that an inferred fact, such as intent, must be proved beyond a reasonable doubt.Id.This court stated that " '[w]here a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard....