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State v. Abdus-Sabur

Court of Appeals of Connecticut

June 18, 2019

STATE OF CONNECTICUT
v.
ISMAIL H. ABDUS-SABUR

          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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