State v. O'NEIL

65 Conn. App. 145

782 A.2d 209

STATE OF CONNECTICUT v. CAESAR O'NEIL

(AC 19710)

Appellate Court of Connecticut.

Argued March 26, 2001.

Officially released August 21, 2001.

Lavery, C. J., and Foti and Healey, JS.

Neal Cone, assistant public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Stephen J. Sedensky III, supervisory assistant state's attorney, for the appellee (state).

Opinion

HEALEY, J.

The defendant, Caesar O'Neil, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2)¹ and 53a-54a (a).² On appeal, the defendant claims that the evidence is insufficient to support his conviction because the case that the state presented against him was one of attempt to incite the injury or killing of another person in violation of General Statutes §§ 53a-49 and 53a-179, an offense different from that alleged in the information.³ We reverse the judgment of the trial court.

The jury could have reasonably found the following facts. In the early morning hours of July 4, 1993, Eddie Smalls and Orlando Suter were riding in a stolen, white Acura automobile in Bridgeport on their way to a party. Smalls was operating the vehicle, and Suter was sitting in the front passenger seat. As Smalls, whose nickname is "Pooch," approached the area of the party, he saw the defendant and a male, known as "Famous," sitting in a car. Smalls drove past the car because Suter and the defendant were members of feuding, rival gangs. The defendant then began to follow Smalls and, suspecting that a gunfight would ensue, Smalls and Suter pulled out their handguns. The defendant and at least one other male in the car with the defendant started shooting at Smalls and Suter. Suter was shot and killed as a result of the gunfight.

Later, the defendant was arrested in connection with the murder of Suter. Smalls provided a signed, sworn statement to the police in which he identified the defendant as one of the shooters. A copy of the statement was turned over to the defendant's attorney. Smalls also made an identification of the defendant through a photographic array after he told the police that he had known the defendant for several years. Smalls was scheduled to be a witness against the defendant at his probable cause hearing. After consulting with his attorney, however, the defendant waived his right to the probable cause hearing in open court. Smalls also was expected to testify against the defendant at his trial.

While awaiting trial, on April 30, 1997, the defendant, who was incarcerated at the Walker correctional facility, sent out mail. John Hart, a former correction officer at the facility who monitored the inmates' mail, intercepted the defendant's letters. According to Hart, the outgoing mail was collected in such a way that each bundle could have come from only a specific group of cells. From a bundle containing the outgoing mail from the six cells that included the defendant's, Hart examined an envelope on which was written the defendant's inmate number and "Vassel O'Neil."⁴ Inside that envelope, there was a letter written in English and another envelope. The latter envelope was addressed to Rose Evans⁵ and contained another letter using some kind of code that Hart believed he deciphered to read as requesting that a man named Wayne kill "Pooch," also known as Smalls. Hart gave those items to his supervisor.

Thereafter, the defendant was charged with attempt to commit the murder of Smalls in violation of §§ 53a-49 and 53a-54a. The defendant's trial on that charge was consolidated for trial with a second information that charged him with the murder of Suter.

At trial, James Streeter, a documents examiner for the state police, testified that he had examined the envelope containing the coded letter, the envelope inside that envelope, the letter inside the latter envelope and a handwritten sentence on the reverse side of a page of the coded letter. As a result of his examination, Streeter concluded that they all were written or addressed by the same individual. Michael Birch, a cryptanalyst for the Federal Bureau of Investigation, had been asked by the state to decode the coded portion of the letter. Birch testified that the code used was "a simple substitution code," which means that a letter of the alphabet is substituted with either another letter, a symbol or a number.⁶ Smalls also testified at trial that he was called "Pooch" and that the defendant knew a Wayne Gray.

At the close of the state's case-in-chief on the two consolidated cases, the defense counsel made a motion for a judgment of acquittal on both charges, which the trial court denied. Thereafter, the court agreed that the jury would be informed of Suter's 1992 conviction for having a pistol without a permit and for carrying a dangerous weapon after which the defendant would rest his case. Anticipating that the state would put on a rebuttal case, the defense again made a motion for judgments of acquittal, and again they were denied. On March 2, 1999, the defendant was found guilty of attempt to commit the murder of Smalls, but a mistrial was declared on the charge of murder in connection with Suter's death because of a deadlocked jury.⁷ For his conviction of attempt to commit murder, the defendant was sentenced to the custody of the commissioner of correction for a term of twenty years. This appeal followed.

I

The defendant claims that there was insufficient evidence to support his conviction of attempt to commit murder because the state presented a case of attempt to incite the injury or the killing of another person. In raising his claim, the defendant predominantly depends on State v. Schleifer, 99 Conn. 432, 121 A. 805 (1923), on appeal after remand, 102 Conn. 708, 130 A. 184 (1925), for the proposition that a mere solicitation cannot constitute an attempt to commit murder. The defendant contends, on the basis of Schleifer, which is in accordance with the great weight of authority, that the evidence is insufficient and, consequently, the judgment must be reversed.⁸

Initially, we note that because the defendant did not raise his claim at trial, it is unpreserved. The defendant contends, however, that his claim nonetheless is reviewable in accordance with federal and state precedents.

We agree with the defendant that his claim is reviewable. The United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), held that the due process clause of the fourteenth amendment to the United States constitution commands that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." On the basis of the holding in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), the Jackson court stated that "[t]he constitutional standard recognized in the Winship case was expressly phrased as one that protects an accused against a conviction except on proof beyond a reasonable doubt...." (Internal quotation marks omitted.) Jackson v. Virginia, supra, 315. Inasmuch as In re Winship established proof beyond a reasonable doubt as an essentially fourteenth amendment due process requirement, it follows that when a conviction that is based on insufficient evidence occurs in a state trial, it cannot constitutionally stand. See id., 317-18. "Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant's federal constitutional right not to be convicted of a crime upon insufficient proof." State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

In addition, the defendant argues that the "right to be acquitted unless proven guilty beyond a reasonable doubt of each element of the charged offense is a fundamental constitutional right protected by the due process clauses of the federal and Connecticut constitutions. U.S. Const., amend. XIV, Conn. Const., art. I § 8; see In re Winship [supra, 397 U.S. 364]; State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984)." State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984); see also State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987); State v. Hill, 201 Conn. 505, 512, 523 A.2d 1252 (1986); State v. Clark, 48 Conn. App. 812, 820-21, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998). He also argues that Jackson v. Virginia, supra, 443 U.S. 307, was based squarely on that due process requirement, as stated in In re Winship, and that the right to be acquitted unless proven guilty beyond a reasonable doubt of each element of the charged offense also is guaranteed by the due process clause of the Connecticut constitution, article first, § 8. See State v. Smith, supra, 217; State v. Williams, supra, 363; State v. Hill, supra, 512; State v. Clark, supra, 820-21. The defendant maintains, therefore, that both the United States and Connecticut constitutions guarantee that a defendant's conviction cannot stand unless it is supported by sufficient evidence.

"Our Supreme Court has said that Jackson v. Virginia, [supra, 443 U.S. 307] compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. There being no practical significance, therefore, for engaging in a Golding analysis [this court will review] the defendant's challenge to his conviction [for insufficient evidence]...." (Internal quotation marks omitted.) State v. Torres, 47 Conn. App. 205, 219, 703 A.2d 1164 (1997). Accordingly, we will...