State v. Washington

186 Conn.App. 176

199 A.3d 44

STATE of Connecticut

v.Trajuan A. WASHINGTON

AC 40031

Appellate Court of Connecticut.

Argued September 7, 2018

Officially released November 20, 2018

Joseph A. Jaumann, assigned counsel, for the appellant (defendant).

Brett R. Aiello, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony Bochicchio, senior assistant state's attorney, for the appellee (state).

Lavine, Sheldon and Bright, Js.

SHELDON, J.

The defendant, Trajuan A. Washington, appeals from the judgment of conviction that was rendered against him, upon the verdict of a jury in the Hartford Superior Court, on charges of conspiracy to commit home invasion in violation of General Statutes §§ 53a-48 and 53a-100aa (a) (2) and attempt to commit home invasion in violation of General Statutes §§ 53a-49 (a) (2) and 53a-100aa (a) (2).¹ The defendant was tried under an amended information dated May 2, 2016, in which the state alleged, in relevant part, that on February 19, 2014 (1) he conspired to commit home invasion by agreeing with one or more persons to enter a dwelling at 33 Seyms Street in Hartford with the intent to commit a crime therein, while he was armed with a deadly weapon and another person not participating in the crime was actually present inside the dwelling, and (2) he attempted to commit home invasion by intentionally taking a substantial step in a course of conduct planned to culminate in the commission of home invasion, while acting with the mental state required for the commission of that offense.² On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of conspiracy to commit home invasion and attempt to commit home invasion, and (2) the trial court erred in instructing the jury on a common essential element of conspiracy to commit home invasion and attempt to commit home invasion by repeatedly substituting the word building for the term dwelling in its final instructions describing those offenses. We affirm the judgment of the trial court.

The jury was presented with the following evidence upon which to base its verdict. On February 19, 2014, at approximately 8:33 a.m., officers of the Hartford Police Department were dispatched to 33 Seyms Street in Hartford to investigate a report of shots fired at that location. Officer Dwayne Tine, a patrolman, was the first officer to arrive at the scene. Upon his arrival, Tine secured the area and performed a preliminary investigation, during which he spoke with Tiffany and Julianna Moore, two sisters who lived on the first floor of the three story apartment building at that address.

Sergeant Jason Lee, a detective with the crime scene division of the Hartford Police Department, arrived at the scene shortly thereafter. Upon his arrival, he searched the area and made two sets of findings of possible relevance to the shooting. First, he found two spent cartridge casings on the sidewalk in front of 39 Seyms Street, the building immediately to the west of 33 Seyms Street. Second, upon inspecting the front of the building at 33 Seyms Street, he found a bullet hole in the center of the front door, a "defect" that could have been caused by a bullet to the left of the number placard immediately to the right of the front door, and jacketing from a bullet in a hole between the brick wall and the wooden frame of the first floor apartment window to the left of the front door.

Detective Mark Rostkowski of the Hartford Police Shooting Task Force also responded to the report of shots fired at 33 Seyms Street on the morning of February 19. While in the area, he recovered a surveillance video of the shooting that had been recorded by a camera installed on the adjacent building at 39 Seyms Street. A portion of the video, bearing a time stamp of 8:26 a.m., showed three men wearing hoodies walking down the sidewalk toward 39 Seyms Street from the direction of 33 Seyms Street when two of the men, apparently reacting to something off camera behind them, suddenly turned in that direction, raised handguns they had been carrying, and fired shots before running away further to the west. At the conclusion of their investigation on February 19, the police had no leads as to possible suspects in connection with the shooting.

Police investigators got their first lead as to who might have perpetrated the shooting when, several weeks later, they received a tip from Jhllah Govan, who claimed to have witnessed the shooting through the window of the first floor apartment at 33 Seyms Street, where he was then living with his girlfriend, Julianna Moore, and her sister, Tiffany Moore. Govan reported that he had gone to the window that morning after hearing the apartment's front door slam and Tiffany cry out for help. When he did so, he reportedly saw three men walking away from the apartment building to his left when two of the men suddenly turned back toward the building and fired handguns in his direction. Govan identified one of the shooters as a man he had come to know as "Awack," with whom he had been incarcerated at the Hartford Correctional Center sometime after the shooting following his arrest on unrelated charges. Detective Rostkowski subsequently determined that Awack was an alias used by Shannon Davis of Hartford. Accordingly, police investigators showed Govan a photographic array that included Davis' photo, from which Govan identified Davis as one of the men who had fired shots toward 33 Seyms Street on the morning of February 19.

When Rostkowski located Davis, he agreed to speak to detectives about the incident. In his meeting with detectives, Davis confessed to his involvement in the incident and identified the defendant as the other man who had fired shots toward the apartment building at 33 Seyms Street during the course of that incident. Davis was later arrested in connection with the incident and agreed to cooperate with the state.³

At the defendant's trial, Davis testified that he, the defendant and a third man he identified only as "Dough" went together to the apartment building at 33 Seyms Street on the morning of February 19, with the intent to break into the apartment of a man named "300" and steal a large sum of money from him. The defendant and Davis were both armed with handguns, which they had purchased together approximately one week before the incident. After driving together to 33 Seyms Street in Davis' car, the three men entered the front door of the building and walked to the door of a first floor apartment through an interior hallway. The defendant knocked on the apartment door, which had no peep hole in it, and identified himself to the apartment's occupants by the name of a person with whom he believed they were familiar. A female resident of the apartment answered the door and started to open it. When, however, she saw the three men standing before her wearing hoodies, she quickly closed the door. Although the defendant tried to catch the door before the woman could close it, she was able to slam it shut. The three men then left the apartment building and began to walk away to their left, in a westerly direction down Seyms Street, when two women in the first floor apartment began to taunt them from the apartment's front window. Shortly thereafter, an unidentified man came out the front door of the apartment building. Believing that the unidentified man was carrying a weapon, Davis and the defendant turned toward him and fired shots at him with their handguns. No one was injured by the shots. Davis identified himself and the defendant in the video recording of the shooting that Detective Rostkowski had obtained from 39 Seyms Street as the two men who fired handguns in the direction of 33 Seyms Street before running away.

After concluding its deliberations, the jury returned a guilty verdict on all charges, including conspiracy to commit home invasion, attempt to commit home invasion, conspiracy to commit robbery in the first degree, attempt to commit robbery in the first degree, and attempt to commit assault in the first degree.⁴ The defendant was later sentenced on those charges to a total effective term of forty years of incarceration, execution suspended after thirty years, and five years of probation. This appeal followed. Additional facts will be set forth as necessary.

ICLAIMS OF EVIDENTIARY INSUFFICIENCY

The defendant first claims that the evidence was insufficient to support his conviction of conspiracy to commit home invasion and attempt to commit home invasion. Specifically, he contends that evidence that he and his companions drove together to 33 Seyms Street while armed with loaded handguns with the intent to break in and steal money, that they attempted to gain entry to the apartment by tricking the residents to believe they were persons known to them, and that he tried to catch the door when the resident attempted to shut it, did not establish that he ever agreed with his companions to commit home invasion or that he intentionally took a substantial step in a course of conduct planned to culminate in the commission of that offense. For the following reasons, we disagree.

"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 .... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict."

(Internal quotation marks omitted.) State v. Allan , 311 Conn. 1, 25, 83 A.3d 326 (2014). In applying that test, "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...