State v. Mourning

934 A.2d 263

104 Conn.App. 262

STATE of Connecticut v. Marlik A. MOURNING.

No. 27821.

Appellate Court of Connecticut.

Argued March 14, 2007.

Decided October 30, 2007.

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

Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Patrick J. Griffin and Jason Germain, assistant state's attorneys, for the appellee (state).

DiPENTIMA, GRUENDEL and FRANCIS X. HENNESSY, Js.

GRUENDEL, J.

The defendant, Marlik A. Mourning, appeals from the judgments of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction of conspiracy to commit murder and the jury's verdict was legally inconsistent, (2) the trial court improperly failed to conduct an inquiry into a witness' assertion of his fifth amendment privilege against self-incrimination, (3) the court improperly denied admission into evidence of the witness' written statement to police, (4) the court improperly denied the defendant's for cause challenges to potential jurors during voir dire and (5) the court improperly charged the jury on the elements of conspiracy to commit murder. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In the late evening of July 8, 2003, Lamar Daniels, Deshon Thomas and the defendant gathered in front of an establishment named Cobra's Place in what is known as the Sugar Bowl area of Waterbury, where the defendant and Daniels often sold drugs. There they engaged in an argument with Desmond Williams and the victim, Trevor Salley, who recently had completed a sale in the area. After the argument ended, the individuals dispersed, and Daniels called his cousin, Sherita Norman, requesting that she pick him up. Several minutes later, Norman and her sister, Sharon Norman, arrived and drove Daniels and the defendant away from the Sugar Bowl and back to Sherita Norman's apartment. Daniels entered the apartment and retrieved a silver .38 caliber revolver and an AK-47 assault rifle from a bedroom closet. At some point, Daniels handed the .38 caliber revolver to the defendant. Sherita Norman then drove the defendant and Daniels back to the Sugar Bowl and parked in a lot, enclosed by a fence, located behind Cobra's Place. As the defendant and Daniels approached the fence, they saw the victim and Williams. Daniels called out to them and displayed the rifle, at which point the victim and Williams ran in the opposite direction. Daniels discharged the AK-47 assault rifle several times. The defendant then fired the .38 caliber silver revolver. The gunshot that killed the victim came from the .38 caliber silver revolver fired at the scene.

The defendant subsequently was charged by information with murder, conspiracy to commit murder and criminal possession of a pistol or revolver. After a jury trial, the defendant was found guilty of manslaughter in the first degree with a firearm, conspiracy to commit murder and criminal possession of a pistol or revolver. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to sustain his conviction of conspiracy to commit murder.¹ In a related claim, the defendant argues that the conviction of conspiracy to commit murder and manslaughter in the first degree with a firearm constituted an inconsistent verdict. We disagree with both claims.

A

Our Supreme Court has set forth the well settled standard of review for a claim challenging the sufficiency of the evidence:² "In reviewing a sufficiency of the evidence claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable. . . .

"[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused's state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence." (Internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 842-43, 911 A.2d 1086 (2007).

"To establish the crime of conspiracy to commit murder, the state must show that there was an agreement between two or more persons to cause the death of another person and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . In addition, the state also must show that the conspirators intended to cause the death of another person."³ (Citation omitted.) State v Sanchez, 84 Conn.App. 583, 588, 854 A.2d 778, cert. denied, 271 Conn. 929, 859 A.2d 585 (2004). "The existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence. . . . The state need not prove that the defendant and a coconspirator shook hands, whispered in each other's ear, signed papers, or used any magic words such as we have an agreement." (Citations omitted; internal quotation marks omitted.) State v. Crump, 43 Conn.App. 252, 258, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

In this case, the jury heard ample evidence from which it could have concluded that the defendant and Daniels conspired to murder the victim. On the date of the murder, the defendant and Daniels had an argument in front of Cobra's Place with the victim and Williams regarding an alleged drug sale. There was testimony that after the argument, Daniels was heard saying that "those niggers got to go" and that "somebody's gonna feel this shit tonight." The defendant, though remaining quiet, appeared equally upset. The Normans drove the defendant and Daniels from the scene of the argument to Sherita Norman's apartment where Daniels retrieved two loaded guns from a bedroom closet and handed one to the defendant. The Normans then drove the defendant and Daniels back to the area of Cobra's Place. The defendant stood next to Daniels when the latter fired his weapon in the direction of the victim and Williams. The weapon that was determined to have killed the victim was the one that the defendant had been carrying. Both the defendant and Daniels fled the scene together once the victim had been shot.

From these facts, the jury reasonably could have found that the defendant and Daniels agreed to cause the death of the victim and committed an overt act in furtherance thereof. In addition, the jury reasonably could have determined that the defendant and Daniels intended to cause the death of the victim. "In considering whether the evidence fairly supports a jury's finding of guilt, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." (Internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 542, 679 A.2d 902 (1996). Accordingly, we conclude that sufficient evidence was offered to convict the defendant of the crime of conspiracy to commit murder.

B

In a related claim, the defendant argues that the jury's guilty verdict of conspiracy to commit murder and of manslaughter in the first degree with a firearm is legally inconsistent.⁴ Specifically, he claims that the verdict's legal inconsistency is evident because the intent to kill and the intent to cause serious physical injury are contradictory elements. We note that "[t]he resolution of a claim of inconsistent verdicts presents a question of law. . . . Our review is therefore plenary." (Citation omitted.) State v. Flowers, 85 Conn. App. 681, 694, 858 A.2d 827 (2004), rev'd on other grounds, 278 Conn. 533, 898 A.2d 789 (2006).

"The issue of legal...