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State v. Franklin

Court of Appeals of Connecticut

July 25, 2017

STATE OF CONNECTICUT
v.
ZACHERY FRANKLIN

          Argued February 6, 2017

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

          Harry Weller, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and David A. Gulick, senior assistant state's attorney, for the appellee (state).

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

         Syllabus

         Convicted of multiple crimes as a result of the shooting death of the victim in the city of Waterbury, the defendant appealed, claiming, inter alia, that the evidence was insufficient to sustain his conviction of murder and criminal possession of a firearm, and that the trial court abused its discretion by admitting certain uncharged misconduct evidence. The defendant and another individual had exited a black Acura automobile, approached a motorcycle that was parked in a driveway, and, from a distance of about eight and one-half feet, shot its operator to death. The shooting continued as the motorcycle crashed into a stop sign. The next day, the defendant and another individual, S, who had been with the defendant in Waterbury the previous day, were seen in New Haven shooting handguns before driving off in a black Acura. Bullet evidence recovered there by the police matched bullet evidence that they recovered at the murder scene. S was later arrested and implicated the defendant in the murder. The police also developed evidence that during the events leading up to the murder, the defendant had a cell phone that was owned by S's sister, I. While the defendant was incarcerated and awaiting trial, he told another individual, H, who was incarcerated in the same correctional center and who testified at the defendant's trial, that he had killed the victim for the purpose of stealing the victim's motorcycle and a neck chain that the victim wore.

         Held:

         1. Contrary to the defendant's claim, the evidence was sufficient to support his conviction of murder: the evidence supported the jury's finding that the defendant was one of the individuals who exited the Acura and shot at the victim, as H testified that the defendant told him while they were incarcerated together that he exited the Acura and shot the victim in an attempt to rob him, and that the defendant stated that he was linked to the shooting as a result of both S's having spoken to the police, and the recovery by the police of video footage and firearms evidence, and the jury in turn credited H's testimony regarding the defendant's confession; furthermore, the jury's finding that the defendant possessed the intent to kill the victim was supported by evidence that the defendant wanted to rob the victim of the motorcycle and the chain that the victim wore, that the defendant fired several gunshots at the motorcycle from a distance of eight and one-half feet, and that he fled from the shooting scene without providing medical assistance to the victim and was in possession of false identification when he was detained by the police.

         2. There was sufficient evidence to support the defendant's conviction of criminal possession of a firearm, the parties having stipulated at trial that the defendant had been convicted of a felony prior to the shooting of the victim, and the evidence having been sufficient for the jury to find that the defendant was one of the individuals who had exited the Acura and shot at the victim while he was on the motorcycle.

         3. The trial court did not abuse its discretion when it admitted uncharged misconduct evidence, offered by the state to demonstrate that the defendant possessed a firearm that was used in the victim's shooting in Waterbury, that included a photograph of a crime scene in New Haven that depicted police tape and testimony that the defendant, on the day after the shooting in Waterbury, possessed and fired a weapon in the back of a building in New Haven: in light of the details of the crimes at issue in this case, evidence that the defendant possessed and discharged a firearm in the back of a building would not unduly arouse the emotions, hostility or sympathy of the jury, as the court heard oral argument from the parties, considered their motions and briefs, and prevented the jury from hearing the most inflammatory details of the uncharged misconduct evidence; furthermore, the probative value of the misconduct evidence outweighed its prejudicial effect because it helped identify the defendant as a shooter in Waterbury, the court instructed the jurors to refrain from considering the police tape in the photograph taken in New Haven, and there was ample testimony that the police investigated that location after a report that gunshots had been fired there. 4. The defendant could not prevail on his claim that his right to a fair trial was violated when the prosecutor made certain allegedly improper remarks during closing argument to the jury: although the prosecutor's incorrect statement that a witness testified that two men approached the motorcycle after it crashed into a stop sign may have been improper, it did not appear to have been intentional, the defendant did not object to the comment when it was made, the comment was only a small part of the prosecutor's summation and was not related to a critical issue in the case, and the state's case against the defendant was strong; furthermore, the prosecutor's comments that the defendant possessed and used a certain phone belonging to I during the events leading up to the murder, and that H's testimony included an admission by the defendant that he shot the victim and took the victim's neck chain were based on evidence, and although the prosecutor's characterization of the neck chain was not part of the evidence, it did not violate the defendant's right to due process.

         Procedural History

         Substitute information charging the defendant with the crimes of murder, felony murder, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree and criminal possession of a firearm, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Crem-ins, J.; thereafter, the court sustained in part the defendant's objection to the admission of certain evidence; verdict of guilty; subsequently, the court denied the defendant's motion for a judgment of acquittal and for a new trial, and rendered judgment in accordance with the verdict; thereafter, the court vacated the conviction of felony murder, and the defendant appealed. Affirmed.

          OPINION

          DiPENTIMA, C. J.

         The defendant, Zachery Franklin, appeals from the judgment of conviction, following a jury trial, of murder, in violation of General Statutes § 53a-54a, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-8 (a) and 53a-134 (a) (2), and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1).[1] On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction of murder and criminal possession of afirearm, (2) the court abused its discretion by admitting certain uncharged misconduct evidence and (3) his right to a fair trial was violated as a result of prosecutorial impropriety. We disagree, and, accordingly, affirm the judgment of conviction.

         The jury reasonably could have found the following facts. During the evening of July 7, 2011, James Beaulieu rode on a two seat, three-wheeled motorcycle known as a T-Rex[2] driven by the victim, Luis Cruz. The two returned to Boyden Street in Waterbury, where Beau-lieu had parked his motorcycle. At approximately 1:30 a.m. on July 8, 2011, Adam Maringola, who was working in a nearby building, heard a loud noise and watched as the victim pulled into a driveway and stopped briefly.

         Maringola observed a black Acura near the T-Rex. He then saw two people exit the Acura and walk toward the T-Rex. The victim became alarmed and backed out of the driveway. The two individuals from the Acura began shooting at the T-Rex from a distance of approximately eight and one-half feet. The shooting continued as the T-Rex crashed into a stop sign. Beaulieu pushed himself out of the T-Rex and ran up a hill. Maringola watched the two men from the Acura shoot at Beaulieu as he fled.

         One of the men from the Acura approached the T-Rex and ordered the victim to exit. The victim replied that he was unable to do so and then was shot multiple times. This shooter continued to pull the trigger of the firearm even though he had discharged all of its ammunition. After the cessation of gunshots, another witness, Sade Canada, heard someone say, ‘‘just leave him, let's go, '' and the shooters returned to the Acura and drove off. Later that evening, the defendant was overheard telling his girlfriend, Isis Hargrove, that ‘‘we just did some hot shit, '' and appeared nervous.

         After a brief period of time, Beaulieu returned to the T-Rex and saw that the victim had remained in it and was not moving. Waterbury police officers arrived and secured the area. At 1:37 a.m., paramedic Joshua Stokes was dispatched to the scene. He observed that the victim had lost a ‘‘copious'' amount of blood, suffered multiple gunshot wounds and had no pulse or lung sounds. After consulting with a physician from Water-bury Hospital via telephone, the victim was pronounced dead at the scene.[3]

         The next day, July 9, 2011, Antonio Lofton, a resident of New Haven, was in his backyard. Lofton observed the defendant and Earl Simpson shoot handguns five or six times before driving off in a black Acura.[4] The noise from the firearms resultedin a report to the police, and Myra Nieves, a New Haven police detective, commenced an investigation. She recovered six bullet casings and one projectile from that area. These items were sent to the state forensics laboratory for testing.

         At the location of the Waterbury shooting, Brian Juengst, a crime scene technician, participated in the recovery of thirteen shell casings and three intact projectiles.[5] Orlando Rivera, a detective with the Waterbury Police Department, investigated the homicide and learned that a dark-colored vehicle, later determined to be a black Acura, had been used by the shooters. Rivera obtained video from businesses located near the shooting. These videos showed the black Acura following the T-Rex until it pulled into the driveway on Boyden Street. Rivera also learned that the casings and projectiles found at the Waterbury crime scene were connected to a criminal investigation in New Haven.[6]Rivera communicated with investigators in New Haven and obtained the names of the defendant, Isis Hargrove, Simpson and Shaquan Armour. Hargrove, who was the girlfriend of the defendant and the sister of Simpson, owned the black Acura. Using this information, Rivera obtained a search warrant for the cell phone records of Simpson and Hargrove. These records established that Hargrove was in the area of the Waterbury shooting at the time of that incident. After successfully applying for a warrant on August 26, 2011, Rivera seized the Acura. Discolorations on this vehicle matched those that were visible on the videos from the night of the shooting.

         On July 29, 2011, Rivera learned that Simpson had been arrested in North Carolina. Approximately six weeks later, Rivera interviewed Simpson, who provided a written statement regarding the events of July 8, 2011. Simpson admitted that he and the defendant were in the area of Boyden Street in Waterbury at the time of the shooting. As a result of the investigation, Rivera obtained an arrest warrant for the defendant, and he was taken into custody on November 16, 2011.[7]

         During the defendant's pretrial incarceration, he spoke with Joshua Habib, who also was held at the New Haven Correctional Center. Habib offered to transport a letter from the defendant to Hargrove, who at that time was incarcerated with Habib's girlfriend in another correctional facility. During their conversation, the two men discussed the shooting in Waterbury. The defendant told Habib that the victim had been killed for the purpose of stealing the T-Rex and a chain. The defendant provided specifics regarding the Waterbury shooting, telling Habib that ‘‘he got out of the car and shot [the victim], and they were attempting or he- intentions was to rob [the victim] for the [T-Rex] . . . .'' The defendant also told Habib that the case against him was based on circumstantial evidence.

         The jury found the defendant guilty on all charges. The court sentenced the defendant to seventy-five years incarceration, thirty-two of which were mandatory. On August 27, 2014, the court vacated the conviction of felony murder, but did not alter the length of the defendant's sentence.[8] This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the evidence was insufficient to sustain his conviction of murder and criminal possession of a firearm.[9] Specifically, he argues that the state failed to present sufficient evidence that he had fired the gun during the Waterbury shooting, and therefore, his conviction of murder and criminal possession of a firearm cannot stand. We are not persuaded.

         As a preliminary matter, we note that the defendant preserved this claim by moving for a judgment of acquittal at the conclusion of the state's evidence, pursuant to Practice Book §§ 42-40 and 42-41.[10] See State v. Taft, 306 Conn. 749, 753 n.6, 51 A.3d 988 (2012); State v. Brown, 118 Conn.App. 418, 422, 984 A.2d86(2009), cert. denied, 295 Conn. 901, 988 A.2d 877 (2010). Specifically, defense counsel argued that there was no evidence that he possessed a firearm on July 8, 2011. With respect to the murder charge, defense counsel contended that there was no evidence that the defendant had been one of the two shooters who had exited the black Acura. Additionally, defense counsel noted that two of the eyewitnesses had testified that the shooters had dark skin, but that the defendant had light skin. The court denied the defendant's motion. The defendant also filed a postverdict motion for a judgment of acquittal[11] that the court denied prior to sentencing.

         Next, we set forth our standard of review and the legal principles relevant to a claim of evidentiary insufficiency. We recently iterated that ‘‘a defendant who asserts an insufficiency of the evidence claims bears an arduous burden.'' (Internal quotation marks omitted.) State v. Leniart, 166 Conn.App. 142, 169, 140 A.3d 1026, cert. granted on other grounds, 323 Conn. 918, 149 A.3d 499, 150 A.3d 1149 (2016). ‘‘In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

         ‘‘We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

         ‘‘Moreover, 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. . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

         ‘‘Finally, [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 [finder of fact], would have resulted in an acquittal. . . . On appeal, 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 [finder of fact's] verdict of guilty.'' (Internal quotation marks omitted.) State v. Badaracco, 156 Conn.App. 650, 657-58, 114 A.3d 507 (2015); see also State v. Bush, 325 Conn. 272, 285-86, 157 A.3d 586 (2017). Guided by these principles, we consider the defendant's appellate arguments in turn.

         A

         The defendant first argues that the evidence was insufficient to support his conviction of murder[12]because the ‘‘state presented no direct evidence that identified the defendant as one firing shots or one that solicited, requested, commanded, importuned or intentionally aided anyone in the shooting of the victim. The circumstantial evidence presented in this case was not sufficient to have found the defendant guilty of murder.'' Specifically, he contends that the state failed to prove that he was one of the individuals who fired a gun at the victim or that he had intended to kill the victim. We are not persuaded.

         The operative information did not charge the defendant with murder as an accessory. It is not disputed, however, that he was tried as a principal or an accessory on the murder charge.[13] Thus, to convict the defendant, the state was required to prove that he was one of the two men, who, after exiting the Acura, shot at the victim in the T-Rex. See, e.g., State v. Jackson, 257 Conn. 198, 206, 777 A.2d 591 (2001) (question of identity of perpetrator of crime is question of fact for jury to resolve); State v. Rodriguez, 133 Conn.App. 721, 728, 36 A.3d 724 (2012) (same), aff'd, 311 Conn. 80, 83 A.3d 595 (2014). The state was not required, however, to prove that the defendant fired the fatal gunshot. State v. Allen, 289 Conn. 550, 559-60, 958 A.2d 1214 (2008); State v. Hamlett, 105 Conn.App. 862, 866-67, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).

         1

         The defendant contends that there was no evidence that he exited the Acura and fired a gun at the victim. This claim, however, ignores the testimony of Habib, the individual who spoke with the defendant about the shooting while incarcerated at the New Haven Correctional Center. Habib initially testified that the defendant had told him that ‘‘they killed [the victim] for the-his chain, and they basically were going to rob [the victim] of the three-wheeler that he was riding and-which they ended up not taking. They just took his chain.'' (Emphasis added.) Habib then clarified his testimony as follows: ‘‘[The defendant] said that he got out of the car and shot [the victim] and they were attempting or he-intentions was to rob him for ...


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