State v. Mark

170 Conn.App. 241

154 A.3d 564

STATE of Connecticut

v.Michael MARK

AC 38567

Appellate Court of Connecticut.

Argued October 27, 2016

Officially released January 17, 2017

Michele C. Lukban, Rocky Hill, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Cynthia S. Serafini and Terence D. Mariani, senior assistant state's attorneys, for the appellant (state).

Alice Osedach, assistant public defender, for the appellee (defendant).

Lavine, Beach and Keller, Js.^*

LAVINE J.

The state appeals from the judgment of the trial court¹ setting aside the jury's verdict finding the defendant, Michael Mark, guilty of one count of tampering with evidence in violation of General Statutes (Rev. to 2010) § 53a–155 (a).² The state claims that the evidence was sufficient to support the jury's verdict of guilty. We agree with the state and reverse the judgment of the trial court.

A jury reasonably could have found the following facts. In the early morning of November 2, 2010, the victim, Arnaldo Gonzalez was walking to a polling station in the city of Waterbury, where he was scheduled to work as a Spanish interpreter. At approximately the same time and in the same vicinity, the defendant and his three friends, Manuel Vazquez (Tetan), Johnny Martinez, and Anthony Garcia, were driving to an "after hours" house where they could purchase alcohol after the liquor stores had closed. As they drove, the defendant and his friends saw the victim walking along the side of the road. The defendant stated to his friends that he was "about to rob that nigga." When the men arrived at their destination, the defendant and Martinez got out of the car and walked to where they had seen the victim.

When the defendant and Martinez returned, the defendant was carrying the victim's backpack. The defendant stated that he thought that he had killed the victim because he kept hitting him with a rock. The four men then drove to the home of Joan Ruiz, Tetan's sister. At the house, Garcia and Martinez went through the victim's backpack, finding needles, juice, a toy, and a Thermos. The defendant told Tetan that they had to return to the scene of the robbery to retrieve the rock that he had used to hit the victim because he did not want to leave any evidence of the murder weapon at the scene.

When the defendant and Tetan drove back to the scene, they picked up three of their friends, Vanessa Vazquez, Vanessa Olivencia, and Sonja Hernandez, who wanted to buy liquor from the "after hours" house. During the drive, the defendant and Tetan discussed how they needed to "go back to a spot" to "get something." When the defendant, Tetan, Vanessa Vazquez, and Hernandez arrived at the murder scene,³ the defendant exited the car and told them that he "had to find the brick." No one in the car actually observed the defendant pick up the rock, but Vanessa Vazquez saw him bend down and then stand back up.

After the defendant exited the car, Tetan, Vanessa Vazquez, and Hernandez drove to the "after hours" house to purchase alcohol. There, they met Eliut Canales, Tetan's younger brother. Canales was "acting crazy" because he knew what had happened, and he left with Vanessa Vazquez and Hernandez, leaving Tetan in the car. A couple of minutes after Canales, Vanessa Vazquez, and Hernandez left, Tetan observed the defendant through his rear-view mirror coming toward his car. When the defendant returned to the car, the defendant told Tetan that he had "got[ten] rid of the rock."

The victim's body was found on the sidewalk later that morning. When paramedics arrived at the scene, the victim was lying on the ground and bleeding from his head. Despite the fact that the victim suffered head trauma, the police were unable to locate the murder weapon at the scene.

The morning of the murder and throughout the next couple of days, the defendant admitted to a number of people—including Garcia, Tetan, Olivencia, Ruiz, and Canales—that he had murdered or thought that he had murdered the victim when he hit him with a rock. In addition, the defendant told Ruiz that he was afraid that "too many people knew about" the murder and was afraid "that somebody was going to talk."

The defendant was charged with murder, felony murder, two counts of robbery in the first degree, and one count each of conspiracy to commit robbery in the first degree and tampering with evidence. After the defendant's case-in-chief, but before the jury returned its verdict, the defendant made a motion for judgment of acquittal as to all counts. The court denied the motion with regard to counts one through five but reserved its decision as to the sixth count, which alleged tampering with evidence. On May 5, 2014, the jury found the defendant guilty on all counts. On August 29, 2014, during sentencing, the court granted the defendant's motion for a judgment of acquittal as to the sixth count. The court imposed a total effective sentence of forty-eight years in prison, twenty-five years of which were mandatory.

On September 2, 2014, the state, pursuant to General Statutes § 54–96, filed a motion for permission to appeal the court's granting of the defendant's motion for judgment of acquittal. On September 5, 2014, the defendant objected on the ground that granting the appeal would violate his constitutional right against double jeopardy. The same day, the court granted the state's motion for permission to appeal. Additional facts and procedural history will be set forth as necessary.

The state claims that the court abused its discretion when it granted the defendant's motion for judgment of acquittal after the jury found the defendant guilty of tampering with evidence. Specifically, the state argues that the jury reasonably could have found from the evidence adduced at trial that "the defendant successfully removed the rock that he had used to hit the victim in order to render [the] evidence unavailable" and that he did so because he "believed that it [was] probable that an official proceeding would arise as a result of [the] police investigation." The defendant argues that the state failed to prove beyond a reasonable doubt that the defendant tampered with evidence because "none of the state's witnesses actually saw what the defendant did when he got out of the car and did not see [him] with a rock." The defendant also argues that while he probably believed that police would investigate the death of the victim, the defendant had no reason to believe that there would be an official proceeding brought against him because there was little evidence linking him to the crime.⁴ We agree with the state.

The following additional facts are relevant to this claim. A substitute information, filed by the state, provided: "Count Six: And the above said senior assistant state's attorney further accuses and charges that the said Michael Mark did commit the crime of Tampering with Evidence ... and charges that, on or about November 2, 2010, in the early morning hours, at or near 424 Baldwin Street, in the City of Waterbury, Connecticut, the said Michael Mark, believing that an official proceeding was about to be instituted, destroyed, concealed and removed evidence with the purpose to impair its verity or availability in such proceeding, to wit: he disposed of a weapon used, to wit: the rock."

During the defendant's argument in support of his motion for judgment of acquittal as to all counts, which took place after the defense rested but before the jury returned its verdict, he focused primarily on the charge of tampering with evidence. He argued that the state did not present sufficient evidence that the defendant believed that an official proceeding was about to be instituted against him. The defendant also argued that the state failed to prove that the defendant tampered with a piece of physical evidence. The state argued that the defendant's statements to Tetan, Hernandez, and Vanessa Vazquez about going back to the scene to retrieve the murder weapon implied that he understood that an official proceeding probably would arise from the murder and that an official proceeding could be brought against him because the rock linked him to the crime. The state also argued that it presented sufficient evidence that the defendant tampered with a physical piece of evidence when Tetan testified that the defendant told him that he had disposed of the rock. The court denied the motion with regard to counts one through five but reserved its decision as to the sixth count of tampering with evidence.

The jury returned a verdict of guilty on all counts. At sentencing, immediately before the court imposed its sentence, the prosecutor and defense counsel argued the defendant's pending motion for judgment of acquittal as to the tampering with evidence charge. The defendant argued that because none of the witnesses actually observed him pick up an object, it was pure speculation that he tampered with any physical evidence at the scene. The state argued that there was sufficient evidence for the jury to find that the defendant returned to the scene and disposed of the rock because he was afraid of being caught by police. The court stated: "Based on the testimony that was presented, [the court] think[s] the testimony ... would establish the elements of a conspiracy or an attempt to tamper with evidence, but [the court] [does not] find that there is adequate evidence [of] actual tampering." The court then granted the defendant's motion for judgment of acquittal with respect to the tampering with evidence charge.

On appeal, the state argues that it "provided ample evidence from which the jury concluded, beyond a reasonable doubt," that the defendant tampered with evidence. It argues that it presented sufficient evidence to show that "the defendant successfully destroyed, concealed and removed the rock he had used to kill the victim," including evidence that he expressly stated to witnesses that he wanted to return to the scene to dispose of the...