State v. Diaz

Page 902

679 A.2d 902

237 Conn. 518

STATE of Connecticut v. Raul Ivan DIAZ.

No. 15093.

Supreme Court of Connecticut.

Argued March 28, 1996.

Decided July 2, 1996.

Kent Drager, Assistant Public Defender, for appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and C. Robert Satti, Jr., Assistant State's Attorney, for appellee (state).

Before PETERS, C.J., and CALLAHAN, BERDON, KATZ and PALMER, JJ.

PALMER, Associate Justice.

A jury found the defendant, Raul Ivan Diaz, guilty of murder in violation of General Statutes § 53a-54a(a), ¹ conspiracy to commit murder in violation of General Statutes §§ 53a-48 ² and 53a-54a(a), two counts of attempted murder in violation of General Statutes §§ 53a-49 ³ and 53a-54a(a), and carrying a pistol without a permit in violation of General Statutes § 29-35(a). ⁴ On appeal ⁵ from the judgment of the trial court, ⁶ the defendant claims that the court improperly: (1) instructed the jury on the principle of vicarious liability of a conspirator under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); (2) instructed the jury on common design liability as an alternate form of accessory liability; (3) denied his motion for a judgment of acquittal on the ground that there was insufficient evidence to sustain his convictions of murder, attempted murder and conspiracy to commit murder; (4) instructed the jury that it could infer the defendant's intent to cause the death of another in light of his use of a dangerous weapon, thereby relieving the state of its burden of proof on an element of the crime of murder in violation of the due process clause of the federal constitution; and (5) permitted the state to introduce impeachment evidence on a collateral matter. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of June 26, 1991, Hector Gonzalez Gonzalez) and his wife, Valerie Falcon, drove to Seaside Park in Bridgeport with their two year old son, Hector Gonzalez, Jr., and Falcon's eight year old son, William Guisti, Jr. While at the park, they met Fitzgerald Guisti (Guisti), an uncle of William Guisti, Jr. Guisti informed Gonzalez and Falcon that he was planning to drive to the east side of Bridgeport to purchase some marijuana. Gonzalez and Falcon agreed to follow Guisti in their vehicle, a Ford Bronco. The two vehicles then left the park. Gonzalez, accompanied by Falcon in the front seat and the two children in the back seat, drove the Bronco, while Guisti drove alone in his car.

Guisti, followed by Gonzalez and his three passengers in the Bronco, proceeded to the corner of Hallett and Jane Streets where several men, including Gerald Torres, Sammy Segarra, Juan Rivera, a man identified only as "Edgar" and the defendant, were congregated. Guisti pulled his car over to the side of the road to inquire whether any of the men had marijuana for sale. Gonzalez drove the Bronco past Guisti's vehicle and continued down Jane Street toward Helen Street.

Torres, in response to Guisti's inquiry, stated that he had some marijuana and told Guisti to get out of his car. As Guisti was exiting his automobile, he heard Torres yell, "that's the truck, let's do the truck," an apparent reference to the Bronco, which had just passed by and was proceeding down Jane Street toward Helen Street. Meanwhile, Gonzalez had turned the Bronco around on Helen Street and was traveling back toward Jane Street in the direction of Guisti's vehicle. Torres, Segarra, Rivera, Edgar and the defendant hurriedly retrieved guns from a nearby automobile and hid behind several cars parked on the street to await Gonzalez' return.

As Gonzalez approached and passed the parked cars behind which they were hiding, the men ran out into the street and began shooting at the Bronco. One member of the group was armed with an Uzi-type machine gun and the others were carrying handguns. ⁷ Guisti yelled to the group that there was a child in the Bronco, to which Torres replied, "Fuck it, keep on," and the shooting continued. The men fired about thirty-five to forty shots at the Bronco, ⁸ approximately ten of which actually struck the vehicle. Three of the bullets passed through the passenger compartment of the Bronco and exited through the front windshield. William Guisti, Jr., was fatally injured when a 9 millimeter bullet passed through his heart, lung and liver. The defendant was thereafter arrested, charged and tried for the crimes of murder, attempted murder, conspiracy to commit murder and carrying a pistol without a permit. ⁹

At the conclusion of the evidentiary portion of the trial, the court instructed the jury on the law governing each of the counts. The jury thereafter found the defendant guilty as charged. On appeal, the defendant challenges the propriety of several of the trial court's jury instructions, as well as the introduction into evidence of certain testimony used by the state to impeach several defense witnesses and the sufficiency of the evidence on the murder, conspiracy to commit murder and attempted murder counts. We reject each of the defendant's claims.

I

The defendant first claims that the trial court's jury instruction under the Pinkerton doctrine ¹⁰ was improper because: (1) the instruction was broader than the principle of vicarious liability adopted by this court in State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993); (2) it was inconsistent with our penal code; (3) application of the Pinkerton doctrine to this case violated the constitutional prohibition against ex post facto laws and, in addition, violated the defendant's due process right to fair notice of the conduct proscribed by our murder statute; (4) the state's failure to rely on a theory of vicarious liability at the hearing in probable cause barred it from doing so at trial; and (5) the trial court improperly instructed the jury that it could apply the Pinkerton doctrine to the inchoate crime of attempted murder. We address each of these claims in turn.

A

In Pinkerton v. United States, supra, 328 U.S. at 647-48, 66 S.Ct. at 1184, the United States Supreme Court concluded that under the federal common law, a conspirator may be held liable for criminal offenses committed by a coconspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy. In State v. Walton, supra, 227 Conn. 32, 630 A.2d 990, we were required to decide whether to recognize the Pinkerton doctrine for purposes of our state criminal law. We concluded, first, that Pinkerton liability is not inconsistent with our penal code and, therefore, that we were not prohibited from recognizing that theory of criminal liability as a matter of state common law. See General Statutes § 53-4. ¹¹ Without foreclosing the use of the Pinkerton doctrine in other circumstances, we then concluded that application of the doctrine was appropriate in that case, in which the defendant was a leader of the conspiracy, the offense for which vicarious liability was sought to be imposed was an object of the conspiracy and the offense was proved by one or more of the overt acts alleged in support of the conspiracy charge. State v. Walton, supra, at 44-46, 50-51, 630 A.2d 990. ¹² We now must decide whether to extend the principle of vicarious liability that we adopted in Walton to a case in which not all of these conditions have been met, a question that we expressly reserved in Walton. See id., at 46 n. 12, 630 A.2d 990. Subject to the limitations set forth hereinafter, we conclude that Pinkerton liability may be imposed even if none of the three Walton conditions is present.

In adopting the principle of vicarious liability set forth in Pinkerton v. United States, supra, 328 U.S. 640, 66 S.Ct. 1180, we noted in Walton that "Pinkerton liability is now a recognized part of federal criminal conspiracy jurisprudence."; State v. Walton, supra, 227 Conn. at 43, 630 A.2d 990; and that the Pinkerton doctrine has been adopted by the majority of state jurisdictions that have considered the issue. Id., at 44, 630 A.2d 990. In so doing, we rejected the defendant's claim that the doctrine necessarily casts too wide a net of vicarious criminal liability. "Though it is sometimes mischaracterized, Pinkerton [liability] is not a broad principle of vicarious liability that imposes criminal responsibility upon every co-conspirator for whatever substantive offenses any of their confederates commit. On the contrary, in the very decision in which the principle was articulated, co-conspirator liability was carefully confined to offenses that are (a) committed in furtherance of the conspiracy, and (b) reasonably foresee[able] by the co-conspirator sought to be held responsible as a necessary or natural consequence of the unlawful agreement." (Internal quotation marks omitted.) United States v. Jordan, 927 F.2d 53, 56 (2d Cir.), cert. denied, 501 U.S. 1210, 111 S.Ct. 2811, 115 L.Ed.2d 983 (1991).

Thus, "the rationale of Pinkerton liability ... is essentially that, because the conspirator played a necessary part in setting in motion a discrete course of criminal conduct, he should be held responsible, within appropriate limits, for the crimes committed as a natural and probable result of that course of conduct. 'A conspiracy is a partnership in crime.' Pinkerton v. United States, supra, [328 U.S. at] 644 [66 S.Ct. at 1182]. Each such partner 'instigated the commission of the crime,' and '[t]he unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act was done in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt...