State v. Rogers

• Decision Date: 22 September 1998
• Docket Number: No. 17616,17616
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Thomas ROGERS.

Page 985

718 A.2d 985

50 Conn.App. 467

STATE of Connecticut v. Thomas ROGERS.

No. 17616.

Appellate Court of Connecticut.

Argued May 26, 1998.

Decided Sept. 22, 1998.

Suzanne Zitser, Assistant Public Defender, for appellant (defendant).

Judith Rossi, Senior Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Elpedio N. Vitale, Senior Assistant State's Attorney, for appellee (State).

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

DUPONT, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes §§ 53a-8 and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, attempt to commit murder in violation of General Statutes §§ 53a-8, 53a-49 (a)(2) and 53a-54a, criminal possession of a firearm in violation of General Statutes § 53a-217, and illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.

On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of criminal possession of a firearm, (2) there was insufficient evidence to support his conviction of illegal possession of a weapon in a motor vehicle, (3) he was denied his constitutional rights to a fair trial and due process of law and his right not to testify due to improper remarks made by the prosecutor during his closing argument, 4) he was denied his right to due process of law when the trial court's instructions to the jury on adoptive admissions improperly delegated to the jury a factual predicate that was for the court's determination, and (5) the trial court improperly instructed the jury regarding the correlation between the intent required for the count of murder and the intent for the count of attempted murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 20, 1994, at approximately 2:30 p.m., Monique Little, Crystal Gora and Antonio West were congregated on the porch of a house at 69 County Street in New Haven. The three teenagers were talking with William Brockenberry and Kevin Galman who were standing near the porch. A silver gray Mercury station wagon drove down County Street and stopped near number 69, with the passenger side of the vehicle closest to the house. Several of the occupants of the vehicle were wearing masks, hoods and black clothing. Numerous shots were fired from the vehicle toward the group at 69 County Street. Both Little and Gora testified that the front seat passenger displayed a gun, and West testified that he saw "fire" coming from the passenger seat area. None of the youths at 69 County Street could identify any of the occupants of the vehicle.

After the shooting stopped, Little, Gora and West found Brockenberry lying in the backyard fatally wounded, bleeding from his mouth and side. Gallman's arm had been grazed by a bullet as he ran from the gunfire. In addition to Little, Gora, West, Brockenberry and Gallman, the incident was witnessed by National Guard member Cheryl Pilgrim, who was looking out a second story window in the Goffe Street Armory located across the street from 69 County Street. Pilgrim told the police that she saw the station wagon pull up, she saw several people in the vehicle, although she could not see their faces, and that she observed shots coming from what she believed to be the passenger side of the vehicle. Pilgrim further told police that, after the initial round of shots stopped, she saw the passenger in the right backseat get out of the vehicle and look around the scene. She stated that he was wearing camouflage clothing and had dreadlocks. After the passenger got back into the vehicle, Pilgrim heard several more shots fired and the vehicle then drove off.

The police recovered various items of ballistic evidence from the scene, including fourteen shell casings and bullet fragments. The ten identifiable shell casings were all .45 caliber and had been fired from two different .45 caliber firearms. The subsequent police investigation into the shooting uncovered the following additional evidence.

On November 19, 1994, the day before the shooting, three men, including Brockenberry's friend, Dana Kelly, and the defendant's brother, Anthony Rogers, had been injured in a shooting on Whalley Avenue in New Haven. ¹ Also on November 19, 1994, Isaac Council, a good friend of the defendant, was with his girlfriend, Safira McLeod, and he told her that the defendant's brother had been shot. On November 20, 1994, Council and Larry McCowen picked up McLeod in a rented Mercury Sable. Early in the afternoon of November 20, Council, who was driving, took a gun from under the driver's seat of the car and placed it on his lap. Council then drove down Whalley Avenue and turned onto County Street where he drove slowly past a house with several people in front. Council stated to McCowen, "There goes those guys. There goes those guys."

Council then drove the rented car to Ashmun Street, approximately one minute's drive from County Street, to the apartment of the defendant's girlfriend, Dana Edwards. Council parked the car on Ashmun Street, and he and McCowen conferred with the defendant in Edwards' living room while McLeod and Edwards sat in the adjacent kitchen. The conversation between the three men in the living room involved "the guys on County Street."

Shortly thereafter, the three men ² left Edwards' apartment through the front door. Council was wearing a black coat with a hood, McCowen was wearing a camouflage army coat and the defendant was wearing a black coat with a hood. Council had a gun with him. Approximately ten minutes later, the three men returned to Edwards' apartment entering through the back door at a fast pace. The men went directly into the living room where they talked and laughed about a shooting where someone was hit. Both Council and the defendant had guns with them at that time, both of which were black and had barrels less than twelve inches in length.

Council then gave the key to the rented car to McLeod and directed McLeod and Edwards to take the car to the car wash to have it cleaned and vacuumed. McLeod and Edwards took the car to Four Brothers Car Wash in West Haven. While vacuuming the interior of the car, Edwards found a shell casing on the passenger side and showed it to McLeod before vacuuming it. ³

After leaving the car wash, McLeod and Edwards returned to the apartment where they eventually had a discussion with Council and the defendant in which McLeod learned that someone had died in the shooting. Council had formulated an alibi for himself whereby McLeod agreed to say that he was with her the entire day. Later that day, Council received a telephone call from the defendant at McLeod's apartment during which they discussed the fact that the police were looking for three to four black males with masks and for a particular type of car in connection with the County Street shooting.

I

The defendant first challenges the sufficiency of the evidence to support his conviction for criminal possession of a firearm. ⁴ Specifically, the defendant claims that the state failed to prove beyond a reasonable doubt that (1) he possessed a firearm "near the area of 69 County Street" on November 20, 1994, at 2:30 p.m. as was charged in the information, ⁵ (2) the firearm was operable, and (3) the firearm had a barrel less than twelve inches in length. The defendant acknowledges that his trial counsel did not move for a judgment of acquittal of this crime at the end of the state's case or at the close of all of the evidence and he therefore seeks review of this claim pursuant to the principles of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Golding review is warranted because "[u]preserved sufficiency claims are reviewable on appeal because such claims implicate a defendant's federal constitutional right not to be convicted of a crime upon insufficient proof. See State v. Adams, 225 Conn. 270, 275-76 n. 3, 623 A.2d 42 (1993)." State v. Laws, 37 Conn.App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

"When reviewing sufficiency of the evidence claims, we impose a two-part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict.... Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.... State v. Rivera, 32 Conn.App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993)." (Internal quotation marks omitted.) State v. Laws, supra, 37 Conn.App. at 281, 655 A.2d 1131. "[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." State v. Sivri, 231 Conn. 115, 646 A.2d 169 (1994). "On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." Id., at 134, 646 A.2d 169.

A

First the defendant claims that the state failed to prove, as alleged in the information, that he possessed a firearm "near the area of 69 County Street." The testimony in the case revealed that the defendant was in possession of a gun in an apartment on Ashmun Street, several blocks away from County Street, just after the shooting. The evidence also revealed that the defendant was with Council and McCowen in an apartment just prior to the shooting on County Street, that the three men had discussed the people gathered on County Street just prior to leaving the apartment together and that the men were gone only ten...