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State v. Frasier

Court of Appeals of Connecticut

November 29, 2016

STATE OF CONNECTICUT
v.
LEVARR FRASIER

          Argued September 16, 2016

         Appeal from Superior Court, judicial district of New Haven, O'Keefe, J.

          Emily Wagner, assistant public defender, for the appellant (defendant).

          Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael Pepper, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Keller and Prescott, Js.

          OPINION

          DiPENTIMA, C. J.

         The defendant, Levarr Frasier, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, [1]assault in the first degree in violation of General Statutes § 53a-59 (a) (5), [2] and carrying a pistol without a permit in violation of General Statutes § 29-35.[3] On appeal, the defendant claims that (1) the court improperly instructed the jury on accessorial liability and (2) he was denied his right to a fair trial due to prosecutorial impropriety. We affirm the judgment of the court.

         The jury reasonably could have found the following facts. Prior to the night in question, Adrian Redmond and Travis James had several altercations regarding the mother of Redmond's child. James and the child's mother were dating, and Redmond took offense to James ‘‘going around telling people about some [explicit] photos that she had sent [James].'' In addition, James believed that Redmond and the child's mother still had an ongoing relationship. Redmond confronted James and requested that he stop publicizing the photographs. In response, James threatened Redmond, warning him that ‘‘I'll have you killed'' and ‘‘just wait here and you'll see. I'll have you shot right now because I have somebody who wants you dead anyway.''

         William Brown, a longtime friend of Redmond, was often with Redmond during the disputes between James and him. In the late evening of January 11, 2011, Brown drove Redmond to the Crown Fried Chicken restaurant on Dixwell Avenue in New Haven to get something to eat. While Brown and Redmond were parked at a corner near the restaurant, James and the defendant exited the restaurant, and James approached the driver's side window of Brown's vehicle. In addition to his threats to Redmond, James had been leaving threatening voice messages on Brown's phone because James believed Brown was ‘‘playing both sides of the fence'' in his dispute with Redmond. James and Brown then engaged in a heated argument, and Brown demanded that James stop leaving threatening voice messages on his phone.

         At one point, James said that he was ‘‘at the end of his rope'' and did not ‘‘care about life anymore.'' Redmond attempted to diffuse the argument and stated that ‘‘it's not that serious, '' and sought to settle their differences at another time. James remained furious and walked away from the vehicle toward the defendant. After a brief conversation, James and the defendant then returned to the driver's side of Brown's vehicle. James again mentioned that Brown was ‘‘playing both sides of the fence, '' and directed the defendant to kill both of them. The defendant then pulled out a firearm and opened fire.

         Redmond was shot in the left elbow and managed to flee to a nearby alley. Brown also was able to flee the vehicle but was shot and collapsed on the street. Once the defendant stopped shooting, he and James fled. Police arrived at the scene shortly after the shooting and found Brown lying unconscious on the street. Brown was transported to the Hospital of St. Raphael where he spent a week on life support before he died from the gunshot wounds. Redmond was transported to Yale-New Haven Hospital and eventually recovered from his injuries.

         At the hospital, Redmond spoke to Detective Wayne Bullock regarding the shooting. Redmond identified James and the defendant, by their street names, as those responsible for the attack and named the defendant as the shooter.[4] Bullock followed up on this information and learned that James and the defendant were known to associate with one another and were frequently in the neighborhood where the shooting occurred.

         The defendant was arrested three days after the shooting by Officer John Palmer. After voluntarily waiving his Miranda rights, the defendant made several statements to police indicating that he was with George White at White's home at the time of the shooting, where he remained until he walked home at 2 a.m. on January 12. Bullock followed up with White who provided a different story.[5] Bullock then confronted the defendant with White's account, but the defendant refused to change his story.

         Bullock conducted a second interview with White approximately one month after the attack. During this interview, White provided a different account from his earlier one and explained that after he got out of work at 10 p.m. on January 11, he picked up the defendant, they purchased marijuana, and then went back to his home. White stated that the defendant ‘‘didn't seem himself'' and that the defendant told White either ‘‘I think I shot somebody'' or ‘‘I shot someone tonight.'' According to White, the defendant stayed at his home until the following morning.

         The defendant subsequently was charged, solely as the principal, with murder, assault in the first degree, and carrying a pistol without a permit and was tried by a jury. The jury was unable to reach a verdict, and the court declared a mistrial. The defendant was tried again and charged, as a principal or an accessory, with murder, assault in the first degree, and carrying a pistol without a permit. The jury acquitted the defendant of murder and convicted him of the lesser included offense of manslaughter in the first degree with a firearm, assault in the first degree, and carrying a pistol without a permit. The court rendered judgment accordingly and sentenced the defendant to forty years of incarceration. This appeal followed.

         I

         The defendant first claims that the court improperly instructed the jury on the doctrine of accessorial liability. He maintains that the court's instructions were improper in three ways, which we analyze in turn: (1) that the court's ‘‘intentionally aid'' instruction was misleading; (2) that the court's instruction that it was ‘‘not necessary to prove that the defendant was actually present or actively participated'' was misleading; and (3) that ‘‘the court erroneously merged all of the offenses into a single instruction.'' We disagree.[6]

         As a preliminary matter, we note that the defendant neither filed a written request to charge nor objected to the court's instructions as given. ‘‘It is well established that [t]his court is not bound to review claims of error in jury instructions if the party raising the claim neither submitted a written request to charge nor excepted to the charge given by the trial court.'' (Internal quotation marks omitted.) State v. Serrano, 91 Conn.App. 227, 244, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). The defendant now seeks review of his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 587 A.2d 823 (1989).[7] ‘‘Under Golding, a defendant may prevail on an unpreserved claim only if the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.'' (Internal quotation marks omitted.) State v. Tarver, 166 Conn.App. 304, 321, 141 A.3d 940, cert. denied, 323 Conn. 908, A.3d (2016).

         We will review the defendant's claim here because the record is adequate for review and the defendant's claim that the court improperly instructed the jury is of ‘‘constitutional dimension.'' State v. Hines, 89 Conn.App. 440, 455, 873 A.2d 1042 (claims of improper jury instructions ‘‘as to an element of a charged offense is of constitutional dimension''; thus Golding review is appropriate), cert. denied, 275 Conn. 904, 882 A.2d 678 (2005). We conclude however, that the defendant has failed to demonstrate the existence of a constitutional violation that deprived him of a fair trial.[8]

         At the conclusion of the court's instruction on the elements of the charged offenses, the court stated that ‘‘[a]ll the language that I've given you up to this point has been about being convicted as a principal, the shooter. . . . This is language which pertains to another theory of responsibility called accessory.'' The court defined an accessory as ‘‘[a] person acting with the mental state required for the commission of an offense, who solicits, requests, commands, importunes, or intentionally aids another person to engage in con- duct which constitutes [an] offense shall be criminally liable for such conduct and may be prosecuted and punished . . . as if he were the principal offender.''

         The court then outlined the requirements under General Statutes § 53a-8 (a) constituting criminal liability as an accessory.[9] Throughout the court's accessory instruction, it defined intent generally and iterated that ‘‘[i]ntentionally aid . . . means to act in any manner, the conscious objective . . . of which is to assist, help, or support. If the defendant did any of these things . . . he is guilty of murder, assault in the first degree, or any lesser included offenses, depending on . . . what you determined, just as though he had directly committed it or participated in the commission of those crimes.''

         The court further instructed the jury that ‘‘[t]o establish the guilt of a defendant as an accessory for assisting in the criminal act of another, the State must prove criminality of intent and community of unlawful purpose. That is, for the defendant to be guilty as an accessory, it must be established that he acted with the mental state necessary to commit murder, any of the lesser included offenses, assault in the first degree or any of the lesser included offenses, and that in furtherance of the crime, he solicited, requested, commanded, importuned, or intentionally aided the principal to commit murder, assault in the first degree, or any of the lesser included offenses. Evidence of mere presence as an inactive companion or passive acquiescence or the doing of innocent acts which in fact aid in the commission of a crime is insufficient to find the defendant guilty as an accessory under the statute. Nevertheless, it is not necessary to prove that the defendant was actually present or actively participated in the actual commission of the crime . . . . For you to find the defendant guilty of this charge . . . you must unanimously find that the State has proven all the elements of whatever crime you find proven beyond a reasonable doubt. If you conclude the defendant is guilty as a principal or as an accessory, you do not need to be unanimous regarding whether you believe he was a principal or accessory as long as all twelve jurors agree that at least one method, principal or accessory, has been proven beyond a reasonable doubt.''

         At the conclusion of its charge, the court advised the jury to send a note to the court if it had any questions. The court stated that ‘‘[i]f you send me a lot of notes, that's okay. If you don't send me any notes, that's fine too. . . . By explaining the note process, I'm not trying to encourage or discourage you from sending notes. If you have a question put it in a note. I'll read it [and] answer it if I can.'' The jury was also aware that its questions should ‘‘be as specific as possible.''

         During deliberations, the jury sent a note to the court requesting clarification on accessorial liability. The court answered the question by stating that ‘‘[a]ccessorial liability doesn't create a new count or a new crime. . . . The State is entitled to . . . put in . . . a different theory of liability [other than as principal]. . . . [T]hey are [also] entitled to say to the jury, we've charged this defendant as the shooter, but we also want you to consider the theory . . . where . . . if he is not the shooter, he intentionally aided the ...


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