State v. Velasco
| Decision Date | 16 May 2000 |
| Docket Number | (SC 16134) |
| Citation | 253 Conn. 210,751 A.2d 800 |
| Court | Connecticut Supreme Court |
| Parties | STATE OF CONNECTICUT v. VICTOR VELASCO |
Borden, Katz, Palmer, Sullivan and Vertefeuille, JS. Neal Cone, assistant public defender, for the appellant (defendant).
Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, was Jonathan Benedict, state's attorney, for the appellee (state).
The principal issue raised by this appeal1 is whether General Statutes § 53-202k2 permits the trial court, rather than the jury, to find that a defendant, who was convicted by a jury of a class A, B or C felony, had used a firearm in the commission of such felony. The defendant, Victor Velasco, was charged with the crimes of felony murder in violation of General Statutes § 53a-54c3 and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (3).4 He also was charged under § 53-202k with committing robbery in the first degree with a firearm. Following a jury trial, the defendant was found guilty on the first two counts. The trial court rendered judgment and sentenced the defendant to a term of imprisonment of sixty years on the felony murder conviction, execution suspended after fifty years, and a twenty year concurrent term of imprisonment on the conspiracy conviction. The trial court then determined, from the evidence presented at trial, that the defendant had used a firearm in violation of § 53-202k. Accordingly, the trial court also imposed a five year sentence to run consecutively with the other sentences for the conviction under § 53-202k.
The defendant raises several issues on appeal. First, the defendant claims that because § 53-202k extends the maximum punishment beyond that which might otherwise be imposed upon conviction of an underlying class A, B or C felony, due process requires that the dispositive question of whether he used a firearm in the proscribed manner must be submitted to a jury. He claims further that, irrespective of whether due process safeguards apply to sentence enhancement statutes, the legislature did not intend for the ultimate factual question under § 53-202k to be determined by the court. Second, the defendant claims that the trial judge's questioning of several witnesses, including the defendant himself, deprived him of a fair trial as guaranteed by the sixth amendment to the United States constitution,5 and article first, §§ 8 6 and 19,7 of the Connecticut constitution. Finally, the defendant claims that the trial court's instruction to the jury on the reasonable doubt standard improperly diluted the state's burden of proof.
We conclude that neither the trial court's questioning of witnesses nor its instruction on reasonable doubt was improper. Because we agree with the defendant, however, that when an accused is convicted by a jury of an underlying felony, the question of whether the accused used a proscribed firearm in the commission of that felony must also be decided by the jury, we conclude that the defendant's five year consecutive sentence under § 53-202k must be vacated.
The jury reasonably could have found the following facts. At approximately 10:45 p.m. on December 19, 1996, the defendant and another individual entered Maria's Variety Store in Bridgeport. The two men robbed the store, and one of them shot and killed the owner, Fernando Reis. Several eyewitnesses identified the defendant as one of the assailants who had robbed the store. One witness, Kathryn Curwen, had been standing by the cash register talking with Reis when the defendant and another male, both dressed in black and wearing ski masks, entered the store. According to Curwen, one of the assailants wore a jacket with a black and gold emblem that read "Billion Bay," the same type of jacket that police later seized from the defendant. Both men were armed, and the defendant waved Curwen back by brandishing a handgun. Curwen heard one of the two men demand money and then heard a gunshot, but she did not see who had fired the shot. Thereafter, the taller of the two assailants put a nine millimeter gun to Curwen's head when a second customer refused to comply with his demand to retreat to the back of the store. After the assailants fled, Curwen called the police.
Officer Richard Mercado of the Bridgeport police department was patrolling the area on the night of the crime when he observed the defendant walking in the general vicinity of the variety store. The defendant matched the description of the suspect that had been broadcast over Mercado's police radio. Mercado detained the defendant and informed him that he was a suspect. The defendant denied any involvement in the shooting, but acknowledged that he was a member of the Latin Kings street gang. When the defendant was returned to the scene of the crime, Curwen identified him as one of the assailants. Three days later, Curwen singled out the defendant from a photographic array of eight potential suspects, each with black masks drawn over their eyes.
Jennifer O'Neill, another eyewitness, saw the defendant with another male outside of the store minutes before the shooting. She had stopped at the store to purchase some household items when she noticed two occupants "hunched up" in the back seat of a vehicle parked directly behind hers. Both individuals looked up as she passed the vehicle and she was able to see their faces. As she was returning to her car, she was startled by a popping noise, and turned to see two people dressed in dark clothing and wearing hoods standing by the cash register inside the store. She also observed that the two individuals whom she had noticed minutes earlier were no longer in the vehicle. She did not learn until the next morning that Reis had been murdered. On December 29, 1996, O'Neill identified the defendant from a photographic array as one of the individuals in the car.
Frank Santos was working in the store on the night of the robbery. He did not notice that two men had entered the store until he heard a gunshot, at which point he fell to the floor to avoid detection. The taller of the two assailants discovered Santos, put a gun to his head, and moved him to the back of the store, while the other assailant stuffed a bag with money from the cash register. As to his emotional state throughout the incident, Santos acknowledged that he was a "manic depressive" who "started seeing flashes [and] got real scared." He was "upset," "hysterical" and "crying" throughout the episode.
According to Santos, the shooter was "a pretty big guy," about 185 pounds and about six feet tall. He was able to recall "the bigger guy" because of his eyes. The accomplice had a smaller build, with "braids or something sticking out of the hat...." Both the shooter and his accomplice had worn black ski masks at the time of the robbery. When the police brought the defendant back to the scene, Santos could not identify the defendant as one of the perpetrators. He cautioned, however, that "I really can't say because they had ski masks on and everything...."
In addition to these eyewitnesses, Nadine Huertas, a longtime friend of both Reis and the defendant, had seen the defendant at some point in November, 1995, with a handgun similar to the one Curwen had described as having been used during the shooting. According to Huertas, when she told the defendant that Reis had spoken harshly about him, the defendant threatened to "leg" Reis, meaning to shoot him in the leg or knee.
According to Donald Armatino, Jr., a member of the Latin Kings who had been incarcerated with the defendant while the defendant was awaiting trial, the defendant had bragged about the killing and had given him a map that described the type and location of the gun used in the shooting. Armatino had turned the map over to the state police, who later located the gun by following the map to the stairwell of a house in Bridgeport. Additional facts will be set forth as necessary.
At the conclusion of the trial, the court related its understanding as to the § 53-202k charge. Specifically, the trial court stated that because the statute is a sentence enhancement provision, and sentencing is a judicial function, the court alone should deal with the issue of whether a gun had been utilized in the manner charged. Accordingly, the court removed the third count of the information from the jury's consideration.
The jury returned a verdict of guilty on the first two counts of felony murder and conspiracy. At the sentencing proceeding, the court determined that, on the basis of the evidence presented at trial, the state had proven beyond a reasonable doubt that the defendant had in fact committed the underlying felony by use of a proscribed firearm. Accordingly, the court sentenced the defendant, in addition to a sixty year term on the felony murder conviction, with execution suspended after fifty years, and a concurrent twenty year term on the conspiracy conviction, to a mandatory consecutive five year sentence pursuant to § 53-202k. This appeal followed.
The defendant first claims that the trial court, in finding that he had used a firearm in the commission of the underlying felony, violated his federal and state constitutional rights, namely, his due process right to a trial by jury as guaranteed under the sixth amendment to the United States constitution, and article first, §§ 8 and 19, of the Connecticut constitution. Alternatively, the defendant claims that the trial court misinterpreted § 53-202k.8 The state, on the other hand, maintains that because this court has held that § 53-202k constitutes a sentence enhancement provision, and does not create a separate and distinct crime; see State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997); due process safeguards, including the right to a jury determination of ultimate factual issues, do not apply. Therefore, the...
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