State v. Smith

• Citation: 212 Conn. 593,563 A.2d 671
• Decision Date: 15 August 1989
• Docket Number: No. 13441,13441
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. William SMITH.

Page 671

563 A.2d 671

212 Conn. 593

STATE of Connecticut v. William SMITH.

No. 13441.

Supreme Court of Connecticut.

Argued June 7, 1989.

Decided Aug. 15, 1989.

Karen Goodrow, Special Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Robert Lacobelle, Asst. State's Atty., for appellee (State).

Before SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

HULL, Associate Justice.

The defendant, William Smith, was charged with murder in violation of General Statutes § 53a-54a(a) ¹ and conspiracy to commit murder in violation of General Statutes §§ 53a-48 ² and 53a-54a(a). His first trial ended in a mistrial when the jury was unable to reach a verdict. In a second trial, a jury found the defendant guilty of both murder and conspiracy to commit murder. From this judgment the defendant appeals, claiming that the trial court erred in: (1) charging the jury that the defendant could be found guilty of murder on an accessory theory of liability; (2) failing to charge the jury that it had to agree unanimously on the factual predicate for the defendant's conviction on the murder count; (3) failing to instruct the jury on the lesser included offenses of manslaughter in the second degree and criminally negligent homicide; and (4) refusing to give a curative instruction to the jury explaining the outcome of the defendant's prior trial. We find no error.

The jury could reasonably have found the following facts. At approximately 7:30 p.m. on February 21, 1986, the defendant met Wendy Kelleher at the corner of Main Street and Fairfield Avenue in Bridgeport. The purpose of their prearranged meeting was to drive in Kelleher's car to the P.T. Barnum housing project in Bridgeport to make a drug purchase. After one failed attempt at finding someone from whom to purchase drugs, the defendant directed Kelleher to drive to a side street and park the car in the middle of the block. He left the car and returned with a man who was later identified as Frank Wright. Pursuant to Wright's directions, the three drove to another Bridgeport location presumably to make a drug purchase, although none was made.

They then drove to Golden Hill Street where the defendant got out of the car and went into an apartment that was occupied by Ann Duguay and Harold Hill. The defendant had spent the previous night in the apartment and prior to that had occupied an apartment on Milne Street with Duguay and Hill. The defendant appeared upset and expressed to both Duguay and Hill that he was angry at a man named Joseph Fiore. He further told Hill of his intent to "get Fiore" for having "snitched" on the defendant for things he had done with credit cards and account numbers while he and Fiore were at Odyssey House, a drug rehabilitation institute in Bridgeport. As the defendant was leaving the apartment, he took with him a paring knife and a crowbar.

Once back in Kelleher's car, the defendant directed her to drive to Milne Street and told her to park near a particular alley so that he could walk through the alley to get to the Hilltop Hotel where Fiore was living. Kelleher believed that the defendant wanted to see Fiore about some stolen money or stolen checks. Both Wright and the defendant went into the dark alley. The defendant walked through the alley and then walked alone toward the hotel. Fiore was not home, so the defendant spoke with Anthony Novicky, Fiore's roommate, who told the defendant to come back later in the evening. The defendant, still alone, retraced his steps from the hotel to the alley entrance. He then emerged from the opposite end of the alley with Wright at his side. When the defendant got back in the car, he kept repeating the words "fucking Fiore" in an angry tone.

The three then went back to the P.T. Barnum housing project to buy drugs. After making the purchase, they ingested the drugs at an apartment that Wright was sharing with Deborah Hendricks. A short time thereafter, the defendant directed Kelleher to drive back to Milne Street and park in the same location in which she previously had parked. Wright and the defendant left the car and entered the dark alley. As the defendant had done previously, he walked through the alley and then toward the Hilltop Hotel. This time Fiore was home and had a conversation with the defendant, which was overheard by Novicky, about where he and the defendant might go to buy cocaine and heroin. They then left the hotel together.

The defendant and Fiore walked toward the dark alley. After they entered the alley, Kelleher, who was standing outside her car on Milne Street, heard Fiore say, "Hey, what's going on?" Kelleher then heard what she thought was the sound of a cracking skull. A very short time later, Wright and the defendant walked out of the alley toward Kelleher's car. The defendant, who had blood smears on the crotch and thigh area of his pants, was carrying a pipe. Prior to getting into Kelleher's car, he handed the pipe to Wright, who wiped it in the snow. Either Wright or the defendant said, "he's dead." The defendant then drove the car to a bridge, where Wright threw the pipe into the water.

Later that night, an area resident discovered the dead body of Fiore in the alley. The cause of death was trauma to the head caused by no fewer than four blows of extensive force with a blunt instrument.

The next day, February 22, 1986, the defendant appeared at the apartment of Duguay and Hill. He changed his clothes and put the clothes he had been wearing into a bag that he had taken with him when he left. The defendant told Hill he had "gotten" Fiore and had left his body behind the building where Hill, Duguay and the defendant previously had lived. The defendant returned the crowbar and paring knife, saying he had not used them to kill Fiore.

On March 26, 1986, a pipe was recovered from the Pequonnock River at the Stratford Avenue Bridge in Bridgeport. Kelleher testified that it looked like the pipe that Wright had thrown from the bridge. Hendricks identified it as a pipe that had been in her apartment prior to the night of February 21, 1986. Dr. Arkady Katsnelson, an associate medical examiner, testified at trial that a pipe is a blunt instrument and could have been the weapon used to kill Fiore.

I

The defendant first claims that the trial court erred in charging the jury under General Statutes § 53a-8, ³ criminal liability for acts of another, because there was insufficient evidence to support the charge. The defendant argues insufficiency of the evidence in two respects: (1) the evidence presented at trial did not support the trial court's instruction on accessory liability in general, because the evidence tended to prove only principal liability; and (2) the evidence presented at trial did not support the trial court's instructions regarding the specific alternative ways in which the defendant could be held liable as an accessory. We do not find insufficient evidence in either respect.

Under § 53a-8, a person may be prosecuted and punished as if he were a principal offender when, "acting with the mental state required for commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense...." Therefore, as we have stated in the past, "[t]he terms [accessory and principal] refer to the alternate means by which one substantive crime may be committed. State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985)." State v. Kemp, 199 Conn. 473, 480 n. 4, 507 A.2d 1387 (1986).

" 'Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.' State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983).... This rule is based on the principle that jurors are presumed to follow the instructions given by the judge. State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977); State v. DellaCamera, 166 Conn. 557, 567, 353 A.2d 750 (1974)." State v. Williams, 202 Conn. 349, 363-64, 521 A.2d 150 (1987). A court's instruction to the jury on a particular statutory alternative authorizes the jury to consider that theory of criminality, thus clearly implying that there is a factual question for them to resolve under the statute. Id., 364, 521 A.2d 150. The defendant argues that the evidence introduced by the state presented no factual question related to accessory liability, because the evidence tended to prove only principal liability. The state maintains that the evidence presented at the trial was sufficient to prove the defendant guilty as either a principal or an accessory because, while ample evidence was presented pertaining to the involvement of the defendant and Wright in the murder, no direct evidence was before the jury as to who struck the blows that killed the victim.

"In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. 'We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.' State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited." State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987).

The jury was justified in finding that the defendant and Wright were both in the alley when the victim was killed. Bo...