State v. Torres
| Decision Date | 02 December 1997 |
| Docket Number | No. 15795,15795 |
| Citation | 47 Conn.App. 205,703 A.2d 1164 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Robert TORRES. |
Mark Rademacher, Assistant Public Defender, for appellant (defendant).
Robert J. Scheinblum, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Rosita M. Cramer, Senior Assistant State's Attorney, for appellee (State).
Before LAVERY, LANDAU and HEALEY, JJ.
The defendant, Robert Torres, was tried before a jury on an information consisting of five counts. The first count charged the defendant with the crime of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, 1 which conspiracy resulted in the death of Glenroy Gordon. The second count charged the defendant with the crime of murder in violation of General Statutes § 53a-54a, alleging that "with intent to cause the death of Glenroy Gordon, [the defendant] caused the death of Glenroy Gordon by shooting him." The third count charged the defendant with the crime of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a)(2) and 53a-59 (a)(1), 2 alleging that when "acting with the intent to cause a serious physical injury to another person, [he] performed a substantial step in the course of conduct planned to culminate in the commission of the crime, to wit: arming himself with a deadly weapon, going to Allen Drive, and shooting one Will Little." The fourth count charged the defendant with the crime of assault in the second degree with a firearm in violation of General Statutes §§ 53a-60a and 53a-60 (a)(2), 3 alleging that "with intent to cause physical injury to another person, [he] caused such injury to Will Little by using a firearm." The fifth count charged the defendant with the crime of risk of injury to a child in violation of General Statutes § 53-21. 4
After a jury trial, the defendant was convicted on the first, third and fifth counts. Thereafter, he was sentenced to twenty years on the first count, twenty years on the third count and ten years on the fifth count with the sentences on each to run consecutively, thus resulting in an effective sentence of fifty years.
On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction for the attempted assault charged in the third count and (2) the trial court improperly instructed the jury on the doctrine of transferred intent with regard to the third count. Our resolution of the first claim makes it unnecessary for us to reach the second claim.
The jury reasonably could have found the following facts. On August 7, 1993, at approximately 8 p.m., Gordon was standing near Allen Drive in Hartford and was holding the hand of Tiffany Rodriguez, a four year old girl. Delroy Stone, Wilbur Jolly and Little were also there. Tiffany Rodriguez' mother, Nancy Rodriguez, was sitting in front of her house on the opposite side of Allen Drive. A 1981 Plymouth Grand Fury car came slowly down Allen Drive. Four persons were in that car, all wearing hooded sweatshirts. The defendant was sitting on the door out the window of the passenger side holding, on the roof of the car, an automatic gun estimated to be about two feet long with a clip extending downward estimated to be about nine inches long. 5 In that position, the defendant, also known as B-Boy, was facing toward Gordon. The state's witnesses, Nancy Rodriguez, Stone and Jolly, all testified that the defendant started shooting toward Gordon, who then fell to the ground. 6 Before Gordon did so, however, he shouted at Tiffany Rodriguez to run, which she did. Jolly saw Little get shot in the leg; Little was later found with a wound in his upper right leg by a Hartford police officer. Many shots were fired as the Grand Fury moved "very slowly."
There was, however, evidence from Detective James Rovella of the Hartford police department, who interviewed the defendant 7 on June 4, 1994, that gave the jury another perspective on who shot at Gordon. According to Rovella, the defendant admitted that he was in the Grand Fury from which shots were fired toward Gordon on Allen Drive on August 7, 1993. With him in that car were Carlos Ortiz (Mad Dog) who was driving, Diego Lopez 8 (Hippy) who was sitting on the door out the window in the front passenger side and an individual known as Smiley who was in the backseat with the defendant. The defendant told Rovella that three of the persons in that car were armed, but that he was not armed. Ortiz had a nine millimeter weapon, Lopez had a Mack 10 semiautomatic, and Smiley had a Tech 9 weapon. 9
The defendant took part in the planning and executing of a plan to do a "hit" on Allen Drive on a member of Twenty Love, a rival gang. 10 A "hit" is a shooting and murder. The plan was formulated at a Latin Kings meeting in a garage on Webster Street in Hartford with the orders for the planned incident coming from Melvin Castro. The garage had been rented by Castro. The planned incident, the defendant told Rovella, arose out of a dispute between Twenty Love and the Latin Kings over a gun and a backpack. At the time of the shooting of August 7, 1993, Gordon had not actually been accepted as a member of Twenty Love, but was "going to be." The plan involved a three car operation. One car would go up Coleman Drive, turn left onto Allen Drive and be posted at the west end of Allen Drive. The second car was the Grand Fury, which was driven down Allen Drive and from which the shooting was done. The third car was posted on the east end of Allen Drive. After the shooting, the occupants of the Grand Fury 11 exited it with their weapons, left the area and returned to the garage on Webster Street for a short time. They then went to a pizza shop on the corner of Park and Wolcott Streets in Hartford where they had a "celebration" of pizza and beer purchased by Castro, who said "it was in return for a job well done."
Mark Castagna, a Hartford police officer, was nearby on Flatbush Avenue in his police cruiser with his partner when he heard gunshots at approximately 8 p.m. on August 7, 1993. Castagna proceeded to Allen Drive where he found Gordon with what appeared to be a bullet hole in his head. Emergency medical personnel responded, and Gordon was taken to Hartford Hospital. Castagna noticed bullet casings at the scene. Aware that a casing is discharged when an automatic or semiautomatic weapon is fired, he proceeded to rope off the scene with yellow crime scene tape. Hartford Police Detective Raymond Cruz, 12 an evidence technician, found twenty-nine shell casings that were of different brands of ammunition. There were seventeen Winchesters, ten Norencos and one Frontier that were for nine millimeter weapons, as well as one PMC that was for a ten millimeter weapon. James Jachimowicz, employed by the Connecticut state police at the forensic science laboratory as a firearm and tool mark examiner, examined those casings. It was his opinion that "[t]he ten Norencos were fired from the same firearm, but they were not fired from the same firearm as the other eighteen nine millimeter fired cartridge cases." Jachimowicz received another PMC cartridge case after having received one PMC cartridge case, and it was his opinion that it was "actually impossible that these ten millimeters could have been fired in the same firearm as the nine millimeters." The two bullet fragments recovered at the autopsy could not be linked to any particular casing because the jacketing material was missing so that there was "no way" that Jachimowicz could "determine whether these two bullets were fired from the same firearm." 13 The casings and the fragments given to Jachimowicz "could have come from anywhere from three to five guns."
On appeal, the defendant claims that there was insufficient evidence to support his conviction under the third count of attempted assault in the first degree of Little. In doing so, he maintains that the state failed to prove that he had the requisite intent to harm Little and that the doctrine of transferred intent cannot be utilized to supply the intent necessary for a conviction of attempted assault in the first degree under General Statutes §§ 53a-49 and 53a-59.
The state, on appeal, in arguing to sustain the conviction on the third count, claims that the intended victim in that count was actually Gordon, not Little. This position is irreconcilable with the state's theory at trial as to the third count. The state's theory of the case at trial is evident, as we will point out, not only from its presentation of evidence and argument to the jury but also from its position as to the trial court's jury instructions concerning the third count.
The thrust of the state's case at trial with regard to Gordon was that the defendant conspired to murder Gordon, as the first count specifically charged, and that he did murder Gordon, as the second count specifically charged. The jury found the defendant guilty of the conspiracy and not of the murder. On appeal, the state now claims that the intended victim in the third count was Gordon. To understand more fully the position of the state at the trial, certain additional circumstances must be set out.
Count one, conspiracy to commit murder, and count two, murder, of the information explicitly specify Gordon as the alleged and indeed actual target. Count three, on the other hand, does not mention Gordon at all, but does mention Little. That count alleges that while "acting with the intent to cause a serious physical injury to another person [who is unnamed], the defendant performed a substantial step in the course of conduct planned to culminate in the commission of the crime, to wit: arming himself with a deadly weapon, going to Allen Drive and shooting one Will Little." (Emphasis added.) In count four, the state returns to its posture, as it did in counts...
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