State v. Small
| Decision Date | 29 July 1997 |
| Docket Number | No. 15305,15305 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Anthony SMALL. |
Lauren Weisfeld, Assistant Public Defender, for appellant (defendant).
Susann E. Gill, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Jonathan C. Benedict, Assistant State's Attorney, for appellee (State).
Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT, KATZ, PALMER and McDONALD, JJ.
Following a jury trial, the defendant, Anthony Small, was convicted of capital felony in violation of General Statutes § 53a-54b (8), 1 two counts of felony murder in violation of General Statutes § 53a-54c, 2 and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(2) 3 and 53a-48. 4 At sentencing, the trial court merged the defendant's felony murder convictions with his capital felony conviction and sentenced him on that count to life imprisonment without the possibility of release. In addition, the defendant was sentenced to fifteen years imprisonment on the conspiracy count, that sentence to run concurrently with the capital felony sentence, for a total effective sentence of life imprisonment without the possibility of release. On appeal, 5 the defendant claims the trial court improperly: (1) refused to dismiss the capital felony count because a capital felony conviction may not be predicated on a charge of felony murder; (2) charged the jury, over the defendant's objection, on the statutory affirmative defense to felony murder, even though the evidence did not support that defense and the defendant did not rely on that defense; (3) allowed the jury to hear evidence of the defendant's prior convictions; (4) denied the defendant's motion for a new trial after it was learned that one of the jurors had been the defendant's neighbor, knew the defendant and his family, and had not disclosed a sibling's narcotics arrest; and (5) charged the jury as to "reasonable doubt" in such a manner as to shift the burden of proof to the defendant. In addition, the defendant claims that his convictions for felony murder and conspiracy to commit robbery cannot stand if his coconspirator's convictions are reversed on appeal. 6 We reverse the judgment of the trial court as to the capital felony count, affirm the judgment of conviction on the remaining counts and remand the case for sentencing on the felony murder convictions.
The jury reasonably could have found the following facts. In October, 1990, the defendant was involved in drug trafficking with his friend, Eric Amado. The defendant and Amado stored drugs at the West Haven apartment of Amado's girlfriend, Joanne Bailey. Bailey shared the apartment with Hope Vaughn, who had been dating the defendant. On October 19, 1990, Vaughn, who was upset over statements regarding her allegedly made by the defendant and Amado, decided that she would "put a stop to it." Vaughn telephoned a friend, Anthony Young, and asked him to come to the apartment she shared with Bailey. She then opened a window and knocked over some of the apartment's furnishings to make it appear as though the apartment had been burglarized. When Young arrived, Vaughn told him that she had some things to bring out and, after Young had backed his car, a red Toyota Celica, up to the door of the apartment building, she loaded two duffel bags and a small safe containing the drugs into the trunk of the car. The two then drove to Young's apartment in Bridgeport, where they were joined by Peter Hall, Vaughn's former boyfriend.
Meanwhile, the defendant and Amado returned to the West Haven apartment and discovered that the drugs were missing. The two men immediately began to search for the drugs and for whomever had taken them. They were joined in their search by Joanne Bailey, as well as by two associates, John "John-John" Wideman and David "Chico" Bailey. 7 During the course of their search, the group traveled to Stamford so that Amado could consult with a "voodoo man" of his acquaintance. The "voodoo man" told him that Vaughn had taken the drugs. Joanne Bailey informed Amado that Vaughn might be with a friend, Sarita Malloy, who lived in Bridgeport with Young. The group drove in two cars to Young's apartment, where they found Vaughn, Young and Hall standing outside on the porch. At that time, they apparently did not suspect Young or Hall to have been involved in the theft. Joanne Bailey approached Vaughn and told her that Amado wanted to speak with her. Vaughn went over to the car where Amado was waiting, and when he ordered her to get into the car she complied. The group then returned to West Haven, where they spent the night. Throughout the night, Amado and the defendant, along with the other two men, questioned Vaughn as to her knowledge of the missing drugs. Amado threatened to shoot her and, at one point, the defendant tied a sock around Vaughn's head while David Bailey threatened her with a gun.
The next morning, Joanne Bailey asked neighbors whether they had seen anything suspicious. After being told by a neighbor that Vaughn had been seen loading bags into the trunk of a red Toyota, the defendant, Amado, Joanne Bailey, Wideman and David Bailey returned to Young's Bridgeport apartment. The men were armed with automatic or semiautomatic weapons, including Uzis. 8 The defendant carried an Uzi. Upon arriving at Young's apartment, Amado told Young that he had come for his "stuff." Young told him to calm down and to come inside the house, but Amado began yelling and then began shooting. Young and Hall were fatally wounded, and Joanne Bailey was shot in the back of her left thigh. The defendant, Amado, Wideman and David Bailey fled the scene. The defendant subsequently left the Bridgeport area, and moved to Queens, New York, where he remained until his arrest for the murders in 1994. Further facts will be provided as necessary.
The defendant's first claim is that the trial court improperly denied his motion to dismiss the capital felony count. 9 The defendant, relying on State v. Harrell, 238 Conn. 828, 839, 681 A.2d 944 (1996), argues that the capital felony count should have been dismissed because a capital felony conviction may be predicated only upon a conviction for intentional murder. This issue is controlled by our decision in State v. Johnson, 241 Conn. 702, 699 A.2d 57 (1997), and in accordance with that decision, the defendant's capital felony conviction is vacated. Because the two counts of felony murder were merged with the capital felony count for sentencing purposes, the case is remanded for resentencing on the felony murder counts.
The defendant's next claim is that the trial court improperly charged the jury as to the statutory affirmative defense to felony murder. Pursuant to § 53a-54c, if a defendant charged with felony murder was not the sole participant in the underlying crime, that defendant may claim as an affirmative defense that he or she: "(1) [d]id not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury." The defense is only effective if all four elements are met. The burden of proving these elements is on the defendant, who must prove their existence by a preponderance of the evidence. General Statutes § 53a-12 (b).
The following additional facts are relevant to our resolution of this claim. Prior to the defendant's testifying at trial, the trial court raised the issue as to whether the defendant would request a jury charge as to the affirmative defense set forth in § 53a-54c. At that time, the defendant stated that he did not plan to assert an affirmative defense. The state, however, indicated that it would request such a charge and, prior to final argument, gave the defendant a copy of its request for a jury charge as to the affirmative defense. As the defendant later told the court, he assumed that, based on his testimony, the state's request would be denied and, therefore, he did not object to or argue against the state's request at that time. Consequently, during its summation, the state referred to the existence of the affirmative defense. At that point, the defendant objected, arguing that reference to the affirmative defense was inappropriate because he had not asserted the defense and had not requested a charge on the defense. The trial court indicated that it was bound by the statute to give the affirmative defense charge as requested by the state. 10 Subsequently, over the defendant's objection, the court charged the jury concerning the statutory affirmative defense to felony murder.
The defendant claims that, by giving the charge, the court deprived him of his constitutional right to a fair trial. Specifically, the defendant claims that: (1) the charge was improper because it was not supported by the evidence; and (2) it was improper for the court to grant the state's request for the affirmative defense charge over the defendant's objection because the giving of the charge effectively stripped him of his asserted defense of mere presence and relieved the state of its burden to prove the defendant's guilt. We conclude that there was sufficient evidence to support the charge, and that the giving of the charge did not effectively strip the defendant of any other defense, but, rather, provided him with further means to escape culpability if his asserted defense had failed. We need not decide at this time whether it was improper for the court to give the affirmative defense...
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