State v. Haywood

952 A.2d 84

109 Conn.App. 460

STATE of Connecticut v. David L. HAYWOOD.

No. 26648.

Appellate Court of Connecticut.

Argued April 14, 2008.

Decided August 5, 2008.

Glenn W. Falk, special public defender, with whom, on the brief, was Donald D. Dakers, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, Walter D. Flanagan, former state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellee (state).

BISHOP, GRUENDEL and BORDEN, Js.

BISHOP, J.

The defendant, David L. Haywood, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a), and robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-134 (a). On appeal, the defendant claims that (1) there was insufficient evidence of a completed robbery, and, therefore, the conviction of felony murder and accessory to robbery must be set aside, (2) he was deprived of a fair trial on the felony murder charge because the trial court failed to instruct the jury on the legal definition of attempt for attempt to commit robbery in the first degree and (3) he was deprived of a fair trial because the court's responses to the jury's inquiries regarding conspiracy misled the jury. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On October 30, 2002, William Brown and his girlfriend, Ukiah Cunningham, resided in a single-family house in Bethel. Brown's friend, Kevin Moriarty, was staying with the couple at the time. Brown occasionally sold small amounts of marijuana to his friends. The defendant was acquainted with Brown and had purchased marijuana from him in the past. At the time, the defendant lived in Waterbury with his brother, Bobby Beale, and was romantically involved with Cunningham's friend, Brandi Nelson.

On that day, Cunningham arrived home from work at about 5:30 p.m. Brown and Moriarty were in the house playing a video game. Shortly after Brown received a telephone call from the defendant asking for directions to his house, the defendant arrived with a tall, skinny, black male who had long dreadlocks or braids. This man was subsequently identified as Gregory Greene.

Fifteen or twenty minutes later, while Brown was in the dining room talking with Greene and the defendant, another man, later identified as Beale, entered through an unlocked rear door in the kitchen. Beale, who was carrying a gun, wore a bandana over the lower portion of his face, and he pushed Cunningham aside and told her to be quiet. Beale went into the dining room and announced a robbery. In response, Brown asked: "This is a joke, right?" The defendant responded: "No, this is not a joke." Because the dining room and kitchen are separated by a half wall, Cunningham could hear and see what was happening in the dining room. She testified that the defendant did not appear shocked or surprised by Beale's actions, nor did he protest his actions.

Moriarty, who was still in the living room playing a video game, could not see into the dining room but heard "forceful talking" and words like "give me this, give me the money, give me the drugs, don't mess around." At first, Moriarty was unsure whether a friend of Brown's was playing a practical joke, but as a precaution, he grabbed a broom as he approached the dining room. As Moriarty turned a corner, Beale put a gun to Moriarty's chin and said: "Don't even think about it." Moriarty indicated that the defendant also had a gun and that both he and Beale were demanding money and drugs, to which Brown responded: "[H]ow could you play me like this?"

As the argument escalated, Brown began to struggle with the defendant, and Moriarty wrestled with Beale. Cunningham had followed Greene into the bedroom because he had started going through her possessions. In the dining room, a gun discharged, and a bullet struck Brown in the forehead. Moriarty testified that it was the defendant's gun that went off and that when he looked over, the defendant was about one and one-half feet away from Brown. Brown moved backward, and the defendant, who had a gun in his hand, jumped away from him. Moriarty decided to "play dead," and he "hit the deck." Cunningham, who had returned from the bedroom before the gun discharged, had not seen the defendant with a gun but testified that at the time the gun went off, the defendant was the person closest to Brown and that they were "[r]ight in front of each other." Brown died approximately five months later of medical complications associated with the gunshot wound to his head.

Following a jury trial, the defendant was convicted of felony murder, conspiracy to commit robbery in the first degree and robbery in the first degree as an accessory. At the sentencing hearing, the defendant entered a plea of nolo contendere to a charge of violation of probation. The court imposed a total effective sentence of seventy-seven years imprisonment, comprised of sixty years for felony murder; seventeen years for conspiracy to commit robbery in the first degree, consecutive to the felony murder sentence; seventeen years for robbery in the first degree as an accessory, consecutive to the felony murder sentence and concurrent with the conspiracy sentence; and three years concurrent with the other sentences on a separate charge of violation of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that his conviction of felony murder and robbery in the first degree as an accessory must be set aside because the evidence was insufficient to prove a completed robbery. As to the felony murder conviction, this claim merits little discussion because the count of the information charging the defendant with felony murder set forth, as the predicate felony, robbery or attempt to commit robbery. Consequently, if the state's evidence of attempt to commit robbery by the defendant was sufficient, the failure to prove a completed robbery would not require setting aside the felony murder conviction.¹

As to the count charging the defendant with being an accessory to robbery, the state concedes that there was insufficient evidence of a completed robbery because the evidence was wanting in regard to a larceny, an essential element of a completed robbery. The state posits, however, that the defendant is not entitled to an acquittal but that the case should be remanded to the trial court with direction to modify the judgment rendered on the accessory count to reflect a conviction of accessory to attempt to commit robbery in the first degree. We agree with the state.

Our Supreme Court "has modified a judgment of conviction after reversal, if the record establishes that the jury necessarily found, beyond a reasonable doubt, all of the essential elements required to convict the defendant of a lesser included offense." (Internal quotation marks omitted.) State v. Greene, 274 Conn. 134, 160, 874 A.2d 750 (2005), cert. denied, 126 S.Ct. 2981, 548 U.S. 926, 126 S.Ct. 2981, 165 L.Ed.2d 988 (2006). The test used to determine whether one crime is a lesser offense included within another crime is "whether it is not possible to commit the greater offense, in the manner described in the information ... without having first committed the lesser.... This ... test is satisfied if the lesser offense does not require any element which is not needed to commit the greater offense." (Internal quotation marks omitted.) State v. Walker, 87 Conn.App. 251, 255, 865 A.2d 1212, cert. denied, 273 Conn. 915, 870 A.2d 1084 (2005).

Our Supreme Court has held that "attempted robbery in the first degree is a lesser included offense of robbery in the first degree...."² State v. Gould, 241 Conn. 1 24, 695 A.2d 1022 (1997). In State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), the court held that "[r]obbery differs from attempted robbery only in that the latter requires an act constituting a substantial step toward completion of the robbery, rather than a completed robbery. While some jurors might have believed that the defendant attempted the robbery but did not complete it, and others might have believed that he did, in fact, complete the crime, none could have believed that the defendant completed the robbery without first undertaking a substantial step toward achieving its object. The unanimous verdict of guilty thus necessarily encompassed a unanimous finding that the defendant had at least attempted to commit robbery." Id., at 76-77, 475 A.2d 1087; see also State v. John, 210 Conn. 652, 689, 557 A.2d 93 ("[a] unanimous verdict of guilty of robbery necessarily encompasses a unanimous finding that the defendant had at least attempted to commit robbery"), cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989).

In this case, because the jury unanimously found the defendant guilty of a completed robbery, it necessarily found him guilty of attempt to commit robbery. We therefore conclude that the defendant's conviction of robbery in the first degree as an accessory should be reversed and the case remanded to the trial court with direction to modify the judgment to reflect a conviction of attempt to commit robbery in the first degree as an accessory, and to resentence the defendant in accordance with that conviction.³

II

The defendant next claims that he was deprived of a fair trial on the felony murder charge because the court failed to instruct the jury on the legal definition of attempt for attempt to commit robbery in the first degree. We are unpersuaded.

The following additional procedural history is necessary for our review of the defendant's claim. The defendant was charged...