State v. Robertson

• Citation: 760 A.2d 82,254 Conn. 739
• Court: Supreme Court of Connecticut
• Decision Date: 17 October 2000
• Parties: (Conn. 2000) STATE OF CONNECTICUT v. ROBERT ROBERTSON SC 15877

760 A.2d 82 (Conn. 2000)

STATE OF CONNECTICUT v. ROBERT ROBERTSON

SC 15877

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued May 24, 2000

October 17, 2000

Pamela S. Nagy, special public defender, for the appellant (defendant).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Cornelius P. Kelly, assistant state's attorney, for the appellee (state).

McDonald, C. J., and Katz, Palmer, Sullivan and Vertefeuille, Js.

McDonald, C. J.

OPINION

The defendant, Robert Robertson, appeals from the judgment of conviction, rendered after a jury trial, of accessory to murder in violation of General Statutes §§§§ 53a-8 and 53a-54a,¹ and conspiracy to commit murder in violation of General Statutes §§§§ 53a-54a and 53a-48 (a).² On appeal,³ the defendant argues that the trial court improperly: (1) allowed statements of a co-defendant to be used against him pursuant to the coconspirator exception to the hearsay rule; (2) admitted into evidence against the defendant audiotapes of telephone conversations made from jail during trial and failed to instruct the jury properly as to the use of the transcripts of those audiotapes; (3) denied the defendant's motion to sever his trial from that of his co-defendant; (4) questioned witnesses; and (5) denied the defendant's motion for acquittal based on insufficient evidence of an intent to kill. We reject the defendant's claims and affirm the judgment of conviction.

This case is the companion to State v. Bush, 249 Conn. 423, 735 A.2d 778 (1999), where we stated: "The jury reasonably could have found the following facts. On September 25, 1993, the victim, Norman Jones, a member of the Brotherhood street gang, was... at a party in Bridgeport. Antoin Pettway also was present at the party. At some point during the evening, the victim and Pettway left the party together and went to the Pequonnock housing project, where Pettway had an apartment. Upon arriving at the housing project, Pettway entered his apartment building. The victim, who did not live at Pequonnock, remained directly outside the building's front entrance.

"Pettway encountered [the defendant], a member of the Bush Mob gang, in the building's lobby. [The defendant] asked Pettway if the person outside the building's entrance was [the victim], and Pettway responded affirmatively. Both men then left the lobby. [The defendant] entered the stairwell and went upstairs, while Pettway took the elevator to his apartment.

"Shortly thereafter, [the defendant] and [Dion Bush], who also was a member of the Bush Mob gang, entered the lobby from the stairwell. The two men, each of whom was armed with a handgun, then went to the building's front entrance and pointed their guns in the direction of the victim. [The defendant] diverted his aim from the victim and fired once into the air. [Bush], however, fired several rounds at the victim, stopping only when his gun had been emptied. As [Bush] and [the defendant] then retreated through the lobby, Bernard Johnson, who had been in the lobby at that time, asked them why they had shot at the victim. One of the two men responded that they had done so to retaliate for the recent murder of a Bush Mob gang member.⁴

"Within minutes, Bridgeport police officers arrived and found the victim lying on the ground a short distance away from the entrance of the building. He had been shot once in the back and was unconscious. He subsequently was transported to Saint Vincent's Medical Center in Bridgeport, where attempts to save his life proved unsuccessful." Id., 425-26. Additional facts and procedural history will be provided as necessary.

I.

The defendant claims that the trial court improperly permitted the jury to consider a dual inculpatory statement that Bush had made to Maria Caban the day after the murder. He argues that the jury's use of this evidence against him violated his rights under the confrontation clauses of the federal and state constitutions. U.S. Const., amend. VI; Conn. Const., art. I, §§ 8.⁵ We disagree.

The following additional facts are relevant to the resolution of this claim. Caban testified at trial that, around the time of the murder, the Bush Mob frequently held meetings and stored clothing and guns in her Pequonnock apartment and that both Bush and the defendant spent time in her apartment. She testified that, the day after the shooting, she had a conversation with Bush in which he admitted that he had "empti[ed] out a gun on [the victim] outside of the building." Bush also told Caban that the defendant was present during the shooting and that the defendant had fired the first shot into the air. Bush stated that the defendant then "punked out," meaning that he became frightened and did not fire any more shots. Caban also testified that Bush told her that the gun used to kill the victim was in her apartment. Bush stated that he planned to leave town, and that Caban would not see him for a while. Caban testified that, several days later, members of the Bush Mob removed the gun from her apartment. Thereafter, Caban did not see any of the male members of the Bush Mob for some time.

The defendant objected to the admission of the statement. The trial court admitted Caban's testimony but cautioned the jury that Bush's statements could not be used against the defendant at that time.⁶ At the end of the trial, the court charged the jury that Caban's testimony could not be used against the defendant unless the jury found that a conspiracy existed.⁷ The defendant took exception to the trial court's charge.⁸

On appeal, the defendant claims that the trial court improperly permitted the jury to consider Caban's testimony against the defendant when there was no evidence that, at the time the statement was made, a conspiracy was still in existence. The defendant argues that, at the time of Bush's conversation with Caban, the object of the conspiracy, the victim's death, already had been achieved. Furthermore, the defendant argues that there was no evidence that Bush's statement was made in furtherance of the conspiracy, as Bush did not ask Caban to take any action to aid the conspiracy. We disagree with the defendant's claims.

"It is well established that a coconspirator's [hearsay] statement, made while the conspiracy is ongoing and in furtherance of the conspiracy, is an exception to the hearsay rule and as such, does not violate the confrontation clause." (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 634, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, ___ U.S. ___, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). In order to invoke the coconspirator exception to the hearsay rule, "[t]here must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made during the course and in furtherance of the conspiracy." (Internal quotation marks omitted.) Bourjaily v. United States, 483 U.S. 171, 175, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987).

"The court must make its preliminary determination by a fair preponderance of the evidence...." (Citation omitted; internal quotation marks omitted.) State v. Vessichio, 197 Conn. 644, 655, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). "A finding as to whether or not a proffered statement was made in furtherance of the conspiracy... will not be overturned on appeal unless it is clearly erroneous." United States v. Thai, 29 F.3d 785, 814 (2d Cir.), cert. denied sub nom. Lan Ngoc Tran v. United States, 513 U.S. 977, 115 S. Ct. 456, 130 L. Ed. 2d 364 (1994); see also United States v. Diaz, 176 F.3d 52, 83 (2d Cir.), cert. denied sub nom. Rivera v. United States, ___ U.S. ___, 120 S. Ct. 181, 145 L. Ed. 2d 153 (1999) (reviewing preliminary determination of admissibility for clear error); United States v. Shores, 33 F.3d 438, 444-45 (4th Cir. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221 (1995) (employing clearly erroneous standard to finding that statement was made in course of and in furtherance of conspiracy); United States v. Mayes, 917 F.2d 457, 464 (10th Cir. 1990), cert. denied, 498 U.S. 1125, 111 S. Ct. 1087, 112 L. Ed. 2d 1192 (1991) (time at which conspiracy ends is factual finding, subject to clearly erroneous standard); United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1198-99 (2d Cir.), cert. denied sub nom. Lavery v. United States, 493 U.S. 933, 110 S. Ct. 324, 107 L. Ed. 2d 314 (1989) (finding that statement was made in furtherance of conspiracy not reversible unless clearly erroneous); United States v. Monroe, 866 F.2d 1357, 1363 (11th Cir. 1989) (same); United States v. Posner, 764 F.2d 1535, 1537 (11th Cir. 1985) (same).

We conclude that there was sufficient evidence that the conspiracy was ongoing when Bush made the statement to Caban. "[A] conspiracy does not necessarily end with the commission of the target crime. Thus, a subsequent declaration of a conspirator may be admissible against any coconspirator... if the conspirators were still concerned with the concealment of their criminal conduct or their identity...." (Internal quotation marks omitted.) State v. Booth, supra, 250 Conn. 635. In State v. Booth, supra, 661-62, we held that a statement made by one coconspirator to a third party three days after the murder had taken place was admissible against all three conspirators, because there was evidence that the conspiracy was ongoing. The Booth conspirators were jointly concocting alibis at that time. Id., 661. In State v. Couture, 218 Conn. 309, 323-24, 589 A.2d 343 (1991), we held that a coconspirator's statement to a third party while the conspirators were transporting stolen money to a safe hiding place was admissible against another conspirator because the object of the conspiracy, successfully to steal the money and conceal it from detection, had not been accomplished at that...