Argued
February 11, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of murder,
manslaughter in the first degree with a firearm, and criminal
possession of a firearm, brought to the Superior Court in the
judicial district of Waterbury and tried to the jury before
Cremins, J.; thereafter, the court denied the
defendant's motion for a judgment of acquittal as to the
count of murder; verdict and judgment of guilty of murder and
criminal possession of a firearm, from which the defendant
appealed to this court. Affirmed.
Jodi
Zils Gagne´, for the appellant (defendant).
Timothy F. Costello, assistant state's attorney, with
whom, on the brief, were Maureen Platt, state's attorney,
and Cynthia S. Serafini and Don E. Therkildsen, Jr., senior
assistant state's attorneys, for the appellee (state).
Keller, Prescott and Pellegrino, Js.
OPINION
PRESCOTT, J.
The
defendant, Ismail H. Abdus-Sabur, appeals from the judgment
of conviction, rendered after a jury trial, of murder in
violation of General Statutes § 53a-54a and criminal
possession of a firearm in violation of General Statutes
§ 53a-217 (a) (1). The defendant claims on appeal that
(1) there was insufficient evidence to prove beyond a
reasonable doubt that he possessed the specific intent to
kill, as required for the crime of murder, (2) the trial
court improperly denied his request for a third-party
culpability instruction, and (3) that the court improperly
admitted evidence of his gang affiliation. We disagree and,
accordingly, affirm the judgment of the trial court.
The
facts, as could have been reasonably found by the jury, and
procedural history, are as follows. On the evening of January
17, 2014, the defendant was at an apartment on the third
floor of a Waterbury housing complex known as
‘‘Brick City.'' The defendant's
friends, Arvaughn Clemente and Daniel Clinton, were hosting a
house party at the apartment. The defendant's brother,
Isa Abdus-Sabur (Isa), and Ryan Curry, Sthal-ron Freeman, and
Katrina Montgomery were also in attendance. Clemente was
dating Ja-Ki Calloway, who was also in the apartment.
Calloway's father, Kareem Morey, Sr. (victim), rented a
second floor apartment in the same complex, where he resided
with his adult son, Kareem Morey, Jr. (Kareem). On the
evening of January 17, 2014, his other son, Kentrell Morey,
was also at the housing complex.
That
night, Calloway's brother, Kareem learned that Clemente
had assaulted Calloway, and became angry. Kareem and Kentrell
then presented themselves at the third floor apartment and
demanded that Calloway leave the apartment, but she refused.
Kareem wanted to fight Clemente for having assaulted his
sister. A verbal altercation then ensued between the Morey
brothers and the men inside the apartment, which spilled onto
the landing outside the apartment. The altercation escalated
into a fist fight between a number of the party attendees and
the Morey brothers.
After
the fight ended, the Morey brothers, upset bythe altercation,
left and walked to a nearby neighborhood to recruit
additional people to renew the fight. They also called the
victim, who had not been present at the initial altercation,
and he informed them that he would return home. When the
Morey brothers left, the par-tygoers returned to the third
floor apartment. At this point, Montgomery overheard the
defendant mention a gun to the other men at the party.
At
about 10:30 p.m., the Morey brothers returned to Brick City
with four additional men. Around this time, the victim also
returned and parked his car on the street outside of the
housing complex. The Morey brothers then entered the interior
courtyard of Brick City through a passage from the street and
climbed the stairs to the landing outside of Clemente and
Clinton's third floor apartment. The victim remained
standing at ground level in the courtyard near the foot of
the stairs. The Morey brothers began kicking Clemente and
Clinton's apartment door. Eventually, the door to the
apartment opened, but all the lights were off inside the
apartment. Shortly thereafter, Kareem heard the
‘‘click, click'' sound of a gun. The
Morey brothers then fled by descending the stairs toward the
courtyard.
As the
Morey brothers retreated down the stairs, the occupants of
Clemente and Clinton's apartment emerged onto the third
floor landing overlooking the courtyard. Within the crowd on
the third floor porch were the defendant, Isa, Clemente,
Clinton, Curry, and Freeman. The defendant then began firing
a black handgun from the railing of the landing toward the
people in the courtyard below.
By the
time the defendant started shooting, the Morey brothers had
arrived at the bottom of the stairs, where the victim was
standing. When the victim heard the first gunshot, he pushed
Kareem out of the way. The victim was then struck in the
chest with a .45 caliber bullet. He told his sons that he had
been hit and ran out of the courtyard through the passage
toward his parked vehicle. The victim was driven to St.
Mary's Hospital in Waterbury, where he later died as a
result of the gunshot wound to his chest.
Following
the shooting, the defendant and Isa ran to the
defendant's car and left Brick City. The next day, the
defendant and Isa pulled up in a sports utility vehicle
alongside Kentrell's girlfriend, Zyaira Cummings, while
she was walking on a street near Brick City. The defendant
then said to Cummings, ‘‘they're next,
'' which she interpreted to be a threat against the
Morey brothers, whom she then warned about the interaction.
On January 18, 2014, the day after the shooting, the
defendant fled to Southington. On January 21, 2014, the
defendant traveled to New York City. That same day, the
police obtained a warrant for his arrest. The defendant
eventually turned himself in on January 27, 2014.
After a
trial by jury, the defendant was convicted of murder and
criminal possession of a firearm. The court sentenced the
defendant to forty-five years of incarceration for his
conviction of murder and two years of concurrent
incarceration for his conviction of criminal possession of a
firearm, for a total effective sentence of forty-five years
of incarceration. This appeal followed.
I
The
defendant claims that there was insufficient evidence to
prove beyond a reasonable doubt that he possessed the
specific intent to cause the death of the
victim.[1] We disagree.
The
following additional procedural history is relevant to this
claim. At the close of the state's evidence, the
defendant made a motion for a judgment of acquittal,
contending that the evidence was insufficient to prove beyond
a reasonable doubt that he intended to cause the death of the
victim. Specifically, defense counsel argued that the
evidence that the defendant possessed and fired a firearm was
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