State v. Davis

163 Conn.App. 458

136 A.3d 257

STATE of Connecticut

v.Paul DAVIS.

No. 37582.

Appellate Court of Connecticut.

Argued Sept. 22, 2015.

Decided March 1, 2016.

Mary A. Beattie, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellee (state).

BEACH, ALVORD and MULLINS, Js.

MULLINS, J.

The defendant, Paul Davis, appeals from the judgment of conviction of accessory to murder in violation of General Statutes §§ 53a–54a (a) and 53a–8 (a), conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a (a), and attempt to commit murder in violation of General Statutes §§ 53a–49 (a)(2) and 53a–54a (a).¹ On appeal, the defendant claims that (1) there was insufficient evidence to sustain his conviction of attempt to commit murder because he was charged via the information only as a principal and the trial court did not instruct the jury that it could find him guilty as an accessory on that charge, (2) the court improperly instructed the jury that it was not necessary for the state to prove that the defendant intended to kill the victim to find him guilty of accessory to murder, and (3) the court improperly instructed the jury on the substantial step requirement of attempt to commit murder.² We affirm the judgment of the trial court.

The following facts, which reasonably could have been found by the jury, are relevant to our consideration of the issues on appeal. The defendant was a member of a gang in Hartford. On May 28, 2006, in retaliation for a shooting that occurred earlier that day in which another member of the defendant's gang was shot, the defendant, Ackeem Riley and Dominique Mack discussed conducting a drive-by shooting in the Nelton Court area of Hartford. The trio had no specific victim intended.

The defendant drove himself, Riley and Mack toward the Nelton Court area in a car he had borrowed. Riley was armed with a nine millimeter Glock handgun. Mack was armed with a nine millimeter Taurus. As the defendant drove, he, Riley and Mack saw a group of children at the corner of Elmer and Clark Streets. Riley and Mack fired at least seventeen shots from their handguns at the group, striking two boys. One of the victims, Kerry Foster, Jr., a fifteen year old boy, was hit by five bullets, resulting in his death. The other victim, Cinque Sutherland, a fourteen year old boy, was hit by three bullets, resulting in serious injury.

After the shooting, the defendant, Riley and Mack fled the scene and left the car on Guilford Street. From there, they summoned a cab to take them to 140 Oakland Terrace. Riley, Mack and another man later returned to the vehicle and set it on fire.

On June 7, 2006, the defendant agreed to speak with members of the Hartford Police Department, and he provided them with information about the shooting. He told the officers about the planning of the shooting, the types of firearms used and where they could be found. He also told them how the vehicle used in the shooting later was set on fire. The defendant, however, did not disclose his involvement in the shooting until almost three years later, in May, 2009, when he again spoke to the police and provided a written statement.

After providing a written statement to the police, the defendant was charged with and later convicted of accessory to murder, conspiracy to commit murder, and attempt to commit murder. See also footnote 1 of this opinion. The court sentenced him to a total effective term of 100 years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that there was insufficient evidence to sustain his conviction of attempt to commit murder. He argues that, as to this count, the state charged him, via a long form information, only as a principal, that the court instructed the jury only on the theory of principal liability, and that the state argued that the defendant was a principal, but that there was no evidence that he was the shooter or that he had a gun during the commission of this crime. He concedes that there was sufficient evidence that he acted as an accessory, but argues, nonetheless, that his conviction cannot be sustained under these circumstances.

The state responds that our role on appeal is to review the charging document and the evidence, and then assess whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt. The state contends: “Because the state charged the defendant generally as to the [attempt to commit] murder count, the defendant was on notice that he could be convicted as either a principal or an accessory.” Moreover, the state argues, although the instructions of the trial court are not relevant when considering the sufficiency of the evidence, the trial court's instructions in this case, read as a whole, permitted the jury to find the defendant guilty of attempt to commit murder as an accessory.

The defendant, in rebuttal, argues that, although a defendant who is charged as a principal can be convicted as an accessory, this is true only if he has notice that he was being charged as an accessory and the jury is instructed that it can find him guilty on the theory of accessorial liability. He argues that, here, he had no notice that he could be convicted as an accessory when the state charged him as a principal, the state never requested an instruction on accessorial liability as to this count, the state argued to the jury that the defendant was a principal, and the court never instructed the jury that it could find him guilty as an accessory to attempt to commit murder. He argues that, because the jury found him guilty of the crime of attempt to commit murder with no evidence that he acted as a principal, and no instruction that it could find him guilty as an accessory, we, on appeal, must find the evidence insufficient, overturn his conviction, and order a judgment of acquittal. We are not persuaded by the defendant's arguments.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

“We assume that the fact finder is free to consider all of the evidence adduced at trial in evaluating the defendant's culpability, and presumably does so, regardless of whether the evidence is relied on by the attorneys.... When the state advances a specific theory of the case at trial, however, sufficiency of the evidence principles cannot be applied in a vacuum. Rather, they must be considered in conjunction with an equally important doctrine, namely, that the state cannot change the theory of the case on appeal....

“The theory of the case doctrine is rooted in principles of due process of law.... In Dunn [v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) ] the United States Supreme Court explained: To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused.... [A]ppellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial....

“[I]n order for any appellate theory to withstand scrutiny under Dunn, it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense.... Thus, in conducting our analysis ... we must analyze the evidence adduced at trial to determine whether, when considered in light of the state's theory of guilt at trial, the state presented sufficient evidence....

“We note at the outset that ... the theory of the case principle binds not only the state, but appellate courts as well.” (Citations omitted; internal quotation marks omitted.) State v. Carter, 317 Conn. 845, 853–55, 120 A.3d 1229 (2015).

In count four of the long form information, the state charged the defendant as follows: “The said Senior Assistant State's Attorney further accuses [the defendant] of the crime of ATTEMPT TO COMMIT MURDER in violation of Connecticut General Statutes § 53a–49 (a)(2) [and] 53a–54a (a), and alleges that, on or about May 28, 2006, at or near 50–52 Clark Street, Hartford, CT, at approximately 11:24 p.m., the defendant, acting with the mental state required for the commission of murder, intentionally did an act constituting a substantial step in a course of conduct planned to culminate in the commission of the crime.”

A

The defendant concedes that the evidence was sufficient to establish his guilt of attempt to commit murder as an accessory. The defendant argues, nonetheless, that this case is unique because, even if he was on notice by virtue of the information and the evidence that he could be convicted as an accessory, the state's theory of the case was that he was a principal, and, furthermore, the court never instructed the jury that it could find him guilty as an accessory to the attempt to commit murder charge.

Specifically, he argues: “At trial, the court instructed the jury on count four solely on the theory of principal liability. This theory was confirmed by the state, which told the jury during its closing argument that it was charging the defendant as a principal on the attempt charge (‘with respect to the attempted murder count...