State v. Sanchez

• Decision Date: 24 August 2004
• Docket Number: No. 24002.,24002.
• Citation: 84 Conn.App. 583,854 A.2d 778
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edwin SANCHEZ.

854 A.2d 778

84 Conn.App. 583

STATE of Connecticut v. Edwin SANCHEZ.

No. 24002.

Appellate Court of Connecticut.

Argued February 25, 2004.

Decided August 24, 2004.

Kent Drager, senior assistant public defender, with whom, on the brief, were James Gorman and Graceann Pisano, certified legal interns, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Kathleen E. McNamara, senior assistant state's attorney, and John J. Russotto, assistant state's attorney, for the appellee (state).

DRANGINIS, WEST and McLACHLAN, Js.

McLACHLAN, J.

The defendant, Edwin Sanchez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a¹ and conspiracy to commit murder in violation of General Statutes §§ 53a-48² and 53a-54a. The defendant claims that (1) the state improperly withheld exculpatory evidence, (2) the court improperly denied his motion for a judgment of acquittal because there was insufficient evidence to support the conviction for conspiracy to commit murder, (3) the court improperly instructed the jury on conspiracy to commit murder and (4) the conspiracy conviction must be set aside because the state allowed the defendant's alleged coconspirator, Jose Pabon, to plead guilty to assault in the first degree. We affirm the judgment of the trial court.

The following facts were adduced at trial. Darence Delgado was murdered on May 2, 1995, on North Street in New Britain.³ Prior to the murder, Jose Pabon was with the defendant on Willow Street, across the street from a basketball court where Delgado and Jay Vasquez were talking. Pabon was a neighbor of the defendant. That afternoon, the defendant asked Pabon to retrieve a gun that Vasquez had left at Pabon's house. After returning with the gun, Pabon noticed that Delgado was no longer at the basketball court. Pabon offered the gun to the defendant, but the defendant told him to hold on to it. The defendant then told Pabon to walk with him to the corner of North and Willow Streets.

When they arrived at the corner, the defendant told Pablon, "When I start shooting, you shoot." Turning onto North Street, they saw Vasquez and Delgado, who was sitting on a bicycle, approximately twenty-five feet away. The defendant approached them while Pabon remained at the corner. The defendant looked at Pabon and nodded his head. He then pulled out a black nine millimeter handgun, aimed it at Delgado's upper body and opened fire from close range. Delgado fell to the ground and the defendant continued to shoot him. The defendant turned around, looked at Pabon and spread his arms. Pabon pulled out the gun he had retrieved and fired four shots at Delgado. The defendant turned toward Delgado and again fired at him. The defendant and Pabon then ran from the scene and hid their guns.

A week or so after the shooting, Pabon saw Miguel Colon carrying the gun that the defendant had used to shoot Delgado. Pabon and Colon smashed it with hammers and wrenches, destroying all but the barrel of the gun. They wrapped the barrel in bags and buried it in Pabon's backyard. The police later seized that barrel. Forensic testing revealed that it was a nine millimeter barrel and that the intact nine millimeter bullet removed from Delgado's body during the autopsy was consistent with having been fired from this barrel.

On September 23, 1997, the defendant was charged by information with murder and conspiracy to commit murder. After a trial by jury, the defendant was convicted of both charges and sentenced to a total effective term of sixty years imprisonment. The defendant filed motions for acquittal and a new trial, which the court denied. This appeal followed.

I

The defendant claims that the state improperly with-held exculpatory evidence regarding the credibility and culpability of Pabon.⁴ At trial, Pabon testified on behalf of the state. He testified that he personally had not been promised anything by the prosecution for his testimony, and that he was hoping to be given consideration for his cooperation. He also testified that his attorney told him he would be given consideration if he cooperated. A week after the defendant was sentenced, the murder and conspiracy to commit murder charges against Pabon were dismissed, and Pabon pleaded guilty to the charge of assault in the first degree.

Despite the denial of his request for an evidentiary hearing, the defendant argues that the record is nevertheless sufficient for our review of his claim. A central part of that record is the trial court's denial of his motion for rectification and augmentation of the record, in which the court addressed the claim now before us. In its memorandum of decision, the court concluded that "[t]here is no evidence that the prosecution failed to reveal a plea agreement, express or implied, between Pabon and/or his attorney and the state." The court also concluded that "the actions of the prosecutor appear to be no more than a proper exercise of prosecutorial discretion in the disposition of Pabon's case." We agree. On the basis of our review of the record, we conclude that there is no evidence that the prosecution improperly withheld exculpatory evidence regarding the credibility and culpability of Pabon.

II

The defendant next claims that the court improperly denied his motion for a judgment of acquittal because there was insufficient evidence to support his conviction for conspiracy to commit murder. He claims the evidence was insufficient to establish that he agreed with Pabon to murder Delgado or that Pabon had the specific intent to murder Delgado. We disagree.

In reviewing a sufficiency of the evidence claim, "[w]e first construe the evidence most favorably to upholding the defendant's conviction, then ask whether a jury, upon the facts so construed and the reasonable inferences that follow, could have found the elements of conspiracy to commit murder proven beyond a reasonable doubt.... In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference." (Citation omitted.) State v. Conde, 67 Conn.App. 474, 490, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

To establish the crime of conspiracy to commit murder, the state must show that there was an agreement between two or more persons to cause the death of another person and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. State v. Green, 261 Conn. 653, 669, 804 A.2d 810 (2002). In addition, the state also must show that the conspirators intended to cause the death of another person. See State v. Bell, 68 Conn.App. 660, 669, 792 A.2d 891, cert. denied, 260 Conn. 921, 797 A.2d 518 (2002).

"The existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act.... Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence.... The state need not prove that the defendant and a coconspirator shook hands, whispered in each other's ear, signed papers, or used any magic words such as we have an agreement." (Citations omitted; internal quotation marks omitted.) State v. Crump, 43 Conn.App. 252, 258, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

"[T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts." Internal quotation marks omitted.) State v. Davis, 68 Conn.App. 794, 799, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002). Intent to murder may be inferred from a combination of factors, including retrieving a gun and then returning to shoot the victim; State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996); using a deadly weapon on the victim's body parts; id.; fleeing from the crime scene with a participant in the crime; State v. Booth, 250 Conn. 611, 653, 737 A.2d 404(1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S.Ct. 1568, 146 L.Ed.2d 471 (2000); concealing evidence of involvement in the crime; State v. Miller, 69 Conn.App. 597, 609, 795 A.2d 611, cert. denied, 260 Conn. 939, 802 A.2d 91 (2002); and failing to summon medical assistance for the victim. State v. Sivri, 231 Conn. 115, 129, 646 A.2d 169 (1994).

The jury in this case heard evidence of concerted action between the defendant and Pabon prior to, during and after Delgado's murder. On the date of the murder, the defendant and Pabon were together across the street from the basketball court where Delgado was talking with Vasquez. The defendant asked Pabon to retrieve a gun, which Pabon did. Upon returning, the defendant told Pabon to hold on to the gun and to walk with him, which Pabon did. They proceeded to the corner of North and Willow Streets, where Delgado was sitting on a bicycle approximately twenty-five feet away. The defendant then told Pabon, "When I start shooting, you shoot." The defendant approached Delgado, looked back at Pabon and nodded his head. He then pulled out a black nine millimeter handgun, aimed it at Delgado and opened fire. The defendant then looked at Pabon and spread his arms. Pabon immediately pulled out the gun that he had retrieved and shot Delgado four times.⁵ The defendant turned toward Delgado and fired more shots at him. The defendant and Pabon fled the scene together without summoning medical assistance for the victim and hid their guns.

From those facts, the jury reasonably could have inferred that the defendant and Pabon agreed to cause the death of Delgado. Although the parties presented two different...