State v. Moye, No. 29894.

963 A.2d 690

112 Conn.App. 605

STATE of Connecticut v. Marcus MOYE.

No. 29894.

Appellate Court of Connecticut.

Argued November 12, 2008.

Decided February 10, 2009.

Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).

BISHOP, McLACHLAN and BORDEN, Js.

BISHOP, J.

The defendant, Marcus Moye, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and possession of a pistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) the trial court improperly refused to charge the jury as he requested. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 3, 2003, at 8 p.m., Joshua Brown was fatally shot in the area of George and Day Streets in New Haven. While en route to the scene of the shooting, Officer Daniel Sacco observed a heavyset black male, wearing a white jersey, on a BMX bicycle, riding away from the scene. Once at the scene, Sacco observed the victim lying face down. Sacco quickly discerned that the victim had been shot in the chest. He recognized the victim as Brown, also known as "Doo Doo" Brown, who was associated with the "Tre Bloods," a gang from the area. Sacco was aware that the "Tre Bloods" were feuding with "The Ville," another local gang. Later, the medical examiner determined that the victim's death was caused by a gunshot. While at the scene, Sacco questioned fifteen year old Kathy Booker, who informed him that at 8 p.m. she heard a gunshot and saw a heavyset black male, clean shaven, wearing a white jersey with possibly the number six on it, riding a bicycle away from the scene of the shooting. Sacco provided Booker's description to the police dispatcher. After hearing the broadcast, Officer Dean Reynolds observed a man on a bike matching Sacco's description. Reynolds chased the biker but lost him. Reynolds eventually found the suspect thirty minutes later, wearing different clothes. At trial, he confirmed the suspect's identity as that of the defendant.

On August 5, 2003, Courtney Taft gave a statement to the police describing her encounter with the defendant on the night of the shooting. She stated that she was sitting on her porch with some friends when the defendant called her over to speak with him. The defendant told her that he had just shot "Doo Doo Brown." He also informed Taft that he had a gun that needed to be buried. Taft, who knew the defendant, identified him from a photographic array and in court.

On August 10, 2003, the police questioned fourteen year old Marvin Gore about an attempted robbery of which he was the victim. Gore informed the police that on August 3, between 7 and 8 p.m., the defendant, wearing a blue scarf on his head and a black jersey with the number six on it, approached him on a bike, pulled a gun from his pocket and ordered him to "give me everything in your pockets." After Gore responded that he had nothing, the defendant struck him in the head with the gun. The attempted robbery occurred four blocks from the scene of the shooting. At the time of the attempted robbery, Gore was wearing a red shirt, which the defendant interpreted to mean that Gore was associated with the "Tre Bloods" gang. Further, Gore was aware that the defendant was a member of "The Ville" gang. Gore identified the perpetrator as the defendant from a photographic array at the police station and again at trial.

Almost two years later, on June 21, 2005, the police spoke with Timothy Phelmetta regarding the shooting. Phelmetta informed the police that on the evening of August 3, 2003, he heard a gunshot and saw a heavyset male, possibly wearing a white jersey, on a bicycle riding away from the scene. Phelmetta recognized the biker as the defendant, with whom he had attended high school. He also identified the defendant from a photographic array and again at trial.

On October 23, 2006, the state charged the defendant with the murder of the victim in violation of § 53a-54a and carrying a pistol or revolver without a permit in violation of § 29-35. On November 20, 2006, the defendant was found guilty on both charges. On February 8, 2007, the court committed the defendant to the custody of the commissioner of correction for a total effective term of fifty years. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to identify him as the shooter because (1) there was no forensic evidence from which to determine the shooter's identity and (2) many of the lay witnesses lacked credibility because they faced serious criminal charges. We are not persuaded.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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. . . .

"It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . .

"[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Furthermore, "[i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant's innocence. . . . Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier's] verdict of guilty." (Citation omitted; internal quotation marks omitted.) State v. Fleming, 111 Conn.App. 337, 342-43, 958 A.2d 1271(2008). With these principles in mind, we now turn to the defendant's claims.

The defendant first argues that there was a lack of forensic evidence from which to determine the shooter's identity. "Since direct and circumstantial evidence have equal probative value, however, the absence of forensic or scientific evidence does not make the evidence insufficient per se." State v. Henning, 220 Conn. 417, 421, 599 A.2d 1065 (1991). Further, "in the absence of forensic evidence, we cannot usurp the role of the jury and discredit the testimony of the state's witnesses as a matter of law." State v. Jones, 234 Conn. 324, 333-34, 662 A.2d 1199 (1995). In this case, sufficient nonforensic evidence was presented to the jury to prove the defendant's identity as the shooter on the basis of, inter alia, (1) Booker's testimony that she saw someone fitting the defendant's description riding a bike away from the scene of the incident, (2) Taft's testimony that the defendant admitted to her that he had shot the victim and (3) Phelmetta's testimony that he saw the defendant riding his bike away from the scene of the shooting shortly after Phelmetta heard gunshots. Additionally, Gore's statement placed the defendant in the area of the shooting, on a bike with a gun, at about the time that the shooting had occurred. Taft, Phelmetta and Gore also were able positively to identify the defendant in court and from a photographic array. "Connecticut case law has previously recognized in-court identifications and identifications from fairly presented photographic arrays as sufficient evidence by themselves to allow the trier of fact to conclude that it was the defendant who committed the crimes charged." State v. Morgan, 274 Conn. 790,...