State v. Torres

SCHALLER, J.,

dissenting. Because I disagree with the majority on the appropriate scope of review to be applied to the jury verdict in this case, I respectfully dissent. With respect to the second claim of the defendant, I conclude that the trial court did not violate the defendant’s constitutional rights by admitting evidence of the defendant’s gang membership.

I

My disagreement with the majority concerning the insufficiency claim is based primarily on the application of the traditional principles of appellate review to the jury verdict in this case. It is useful to summarize the essential principles. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993). [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . State v. Grant, [219 Conn. 596, 604, 594 A.2d 459 (1991)]. . . . State v. Fran *507cis, [228 Conn. 118, 127, 635 A.2d 762 (1993)]; see also State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Greenfield, [228 Conn. 62, 76, 634 A.2d 879 (1993)]; State v. Rasmussen, 225 Conn. 55, 73-74, 621 A.2d 728 (1993).” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994).

I emphasize, as our Supreme Court did in Sivri, that “[u]nder [this] scope of review and its application, we give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawable therefrom that support the jury’s determination of guilt. 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 jury’s verdict of guilty.” Id., 134.

Once the jury has determined guilt, “and has determined that, in its best judgment, the hypothesis or hypotheses of innocence posed by the defendant are no more than ‘possible’ as opposed to ‘reasonable’ . . . that jury determination is entitled to deference on appeal. It would be inconsistent with the entire process of trial fact-finding for an appellate court to do otherwise. . . . [T]o do so . . . would in effect permit an appellate court to substitute a different view of the evidence from the reasonable view taken by the jury.” (Citations omitted.) Id., 134-35. That is precisely what the majority has done in this case. By failing to give appropriate deference to the jury’s findings and inferences, the majority has substituted its own view of the evidence and reached a different result.

The majority has chosen to discredit the evidence that the jury chose to credit. I refer, in particular, to the majority’s statements that “although [Jose] Martinez testified that the defendant’s voice emanated from sector one, he did not say how or why he believed that to *508be so,” “nor did he ever testify to the nature, length, or substance of what the defendant allegedly said.” In fact, the majority rejects Martinez’ testimony that the defendant was in sector one, concluding that “there were no predicate facts before the jury that would lend support to Martinez’ conclusion that the defendant communicated with the rooftop participants. Accordingly, there is no evidence from which the jury could infer anything about the defendant’s whereabouts on the night of the shooting.” Further, the majority states: “Even if the jury gave full credit to Martinez’ testimony that he was able to recognize the defendant’s voice coming over the portable radio, there was no evidence ... to allow us to conclude that the jury could infer, beyond a reasonable doubt, that the defendant participated in the conspiracy.” Those statements are not consistent with the principle of appellate review requiring us to defer to the jury’s inferences rather than positing other possible inferences that the jury necessarily must have rejected.

Moreover, the majority posits that the state’s description of the defendant’s statements as indicating insider information about the shooting “presupposes the defendant’s participation.” The jury, having reached a guilfy verdict, clearly inferred — not presupposed — the defendant’s participation. A reviewing court must defer to those reasonable inferences that support the verdict. Finally, the majority engages in fact-finding contrary to the jury’s fact-finding when it finds that “the information the defendant told to Henderson was known to many people and was, therefore, not ‘inside information’ exclusive only to the defendant . . . .” That assertion directly counters the inviolability of the jury process of drawing reasonable inferences.

Traditional analysis requires that, after appropriate deference to the facts found and inferences drawn by the jury, we determine whether the evidence and rea*509sonable inferences drawn by the jury fall short of establishing any element of the crime charged. In so doing, we must assume as true all facts, including states of mind, for the purpose of the challenge based on eviden-tiary insufficiency. If evidence existed from which the jury could have drawn reasonable inferences as to the defendant’s intent to agree to conspire and intent to engage in conduct constituting the crime of murder, and that the agreement was followed by an overt act in furtherance of the conspiracy by any of the conspirators, the verdict must stand even if another fact finder might have declined to credit particular evidence or have drawn different inferences.

In this case, as the majority informs us, the evidence relied on by the state was that, at the time of the shooting, the defendant was a regional commander of the Waterbury branch of a street gang known as the Latin Kings. He had previously held the positions of “philosopher” and president of the Waterbury Latin Kings. Although there was no direct evidence that the defendant attended the September 26, 1993 emergency meeting on the afternoon of the shooting, the defendant had been present at the nine previous meetings attended by Martinez, the informant.

At that time, a “war” was going on between the Latin Kings and Los Solidos. Plans were made at the meeting to kill a member of Los Solidos that evening. The killing was to be in retaliation for a recent incident in which a member of Los Solidos had shot at a member of the Latin Kings. The killing would be done from the rooftop of a four-story apartment building located across the street from a house where a Los Solidos member lived. None of the Latin Kings assigned to the rooftop held leadership positions in the Latin Kings. The group assembled in a vacant apartment in the four-story building at about 4 p.m. and proceeded to the roof when it became dark.

*510The site of the meeting, a bar in the city known as Morales’ Cafe, had been designated “sector one” as part of the plan to kill a member of Los Solidos. Communications between sector one and the rooftop took place by means of a CB radio. At some point in the evening, the defendant communicated with Jose Velez on the rooftop. Although the content of the conversation was not ascertained by Martinez, who was on the rooftop, he recognized the defendant’s voice and testified that the defendant had made the communication from sector one. After that communication, the watch — and ultimately the shooting — continued and did not cease. Later, moments before the shooting, Velez again communicated with someone via CB, then gave the order to shoot the people, who were thought to be members of Los Solidos.

When the defendant was arrested ten days later, he admitted to Detective Robert Henderson that he was a regional commander of the Latin Kings but was “reluctant to admit” that he was involved in the shooting incident. He provided “information indicating that he had a lot of knowledge” about the incident — knowledge and information that was not available to the general public. That information included identifying “Cano” as the person who did the shooting, Cano’s gang affiliation, and the fact that a member of the Latin Kings had disposed of the weapons.

From the evidence presented, the jury reasonably could have found that the defendant held a series of leadership positions' in the Waterbury branch of the Latin Kings, including president, culminating in his position as regional commander. He regularly attended the Latin Kings meetings, including all of the meetings at which Martinez had been present. On the day of the emergency meeting, held in the midst of a “war” with a rival gang, he was present at the sector established as part of the conspiracy to shoot a member of Los *511Solidos, and he communicated before the shooting with Velez on the rooftop. Because no Latin Kings leaders were on the roof, and since a CB communication immediately preceded the shooting, the jury reasonably could have inferred that Latin Kings leaders were at sector one, where the defendant, who was a leader, was located. From the defendant’s leadership position, his regular attendance at meetings, the emergency nature of the situation and the fact that the defendant employed a CB for communication, all of which were integral parts of the plan to commit the murder, and that the plan proceeded without interruption after the defendant’s communication with Velez, the jury reasonably could have inferred that the defendant knew of the plan to kill a member of Los Solidos, agreed to conspire to commit the murder, shared the intent to commit the murder and that a coconspirator committed an act in furtherance of the conspiracy.

Having drawn those reasonable inferences concerning the defendant’s participation and shared intent, the defendant’s disclosure ten days later, in Henderson’s words, of “a lot of knowledge” about the incident, not readily available “in the general public” could have led to further reasonable inferences of the defendant’s guilt of the crime charged. The fact that the evidence was disputed or that other inferences could have been drawn is not relevant to our review. As long as evidence existed from which the jury reasonably could have found the facts and drawn the inferences leading to its guilty verdict, it is our obligation to defer to those findings and inferences in passing on this sufficiency challenge.

The foregoing analysis has established that the jury’s inferences were reasonably drawn and that the evidence was sufficient to prove the crime charged. Under those circumstances, the jury’s chain of inferences is appropriate and a reasonable view of the evidence *512exists that supports the jury’s verdict of guilty. Id., 130. An appellate court is not entitled to “sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. White, 229 Conn. 125, 142-43, 640 A.2d 572 (1994).” (Internal quotation marks omitted.) State v. Cruz, 40 Conn. App. 515, 522, 672 A.2d 502 (1996). I acknowledge that “this is not an easy case [but] it is a case in which the jury’s inference of an intent to kill [and intent to conspire] was sufficiently supported by the circumstantial evidence.” State v. Sivri, supra, 231 Conn. 131.

II

The defendant also challenges the trial court’s admission of evidence of the defendant’s membership and positions in the Latin Kings on both evidentiary and constitutional grounds. The defendant claims that the evidence of his status as a Latin King was proof of “guilt by association” and as such was more prejudicial than probative. He further asserts that the improper admission of this evidence deprived him of his constitutional right to freedom of association under both the Connecticut and United States constitutions.1 Neither claim has merit.

A

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). ... A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient *513if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985).” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 305-306, 664 A.2d 743 (1995).

The defendant argues that the evidence of his Latin Kings membership was not probative and prejudiced him by allowing the jury to infer bad character and a propensity to commit the type of offense charged. I conclude, however, that the evidence of gang membership and leadership in this case was relevant to the criminal charge of conspiracy to commit murder, which directly involved group activity. The evidence established that the defendant’s presence in sector one and his communication with Velez on the rooftop were not merely coincidental with the plan to kill a member of Los Solidos. Moreover, the charge involved a claim of group retaliation for an attack on a member of the Latin Kings. The evidence was probative of the basis of the defendant’s relationship with other gang members and the existence of a conspiracy among the gang members. State v. Mozell, 40 Conn. App. 47, 51, 668 A.2d 1340 (1996); see United States v. Hartsfield, 976 F.2d 1349, 1352 (10th Cir. 1992) (defendant’s membership in gang demonstrated relationship with coconspirator and existence of conspiracy). I further conclude that the trial court did not abuse its discretion in determining that the prejudicial impact of the evidence did not outweigh its probative value. See United States v. Hartsfield, supra, 1352.

*514B

Because the defendant did not preserve the constitutional claim at trial, he can prevail only if he meets the four prongs of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).2 The defendant fails to demonstrate that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial.

“[T]he First Amendment protects an individual’s right to join groups and associate with others holding similar beliefs.3 See Aptheker v. Secretary of State, 378 U.S. 500, 507 [84 S. Ct. 1699, 12 L. Ed. 2d 992] (1964); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 [78 S. Ct. 1163, 2 L. Ed. 2d 1488] (1958).”Dawson v.Delaware, 503 U.S. 159, 163-64, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992). Nevertheless, “the Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations . . . simply because those beliefs and associations are protected by the First Amendment.” Id., 165. An individual’s right to join groups and associations is not violated where the evidence proves something more than an individual’s abstract beliefs. Id., 167; United States v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984); see also United States v. Hartsfield, supra, 976 F.2d 1352.

As the previous discussion demonstrates, the evidence of the defendant’s membership, including his leadership positions, in the Latin Kings was probative *515of the conspiracy to commit murder charge. Because the evidence of the defendant’s association was relevant and probative of the issues in the case, the defendant’s first amendment rights were not violated by the admission of the evidence. Dawson v. Delaware, supra, 503 U.S. 163-64. A conspiracy involves association, and the state may offer evidence of association within the framework of the conspiracy charged.4

Accordingly, I would affirm the judgment of the trial court and, therefore, respectfully dissent.

Although the defendant asserts that his right to due process and a fair trial was also violated, he fails to analyze this claim. Accordingly, I decline to address it.

The four conditions of Golding are the following: “(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 clearly exists and clearly 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. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

Although the defendant asserts that his rights under the Connecticut constitution could be greater than under the federal constitution, his analysis has failed to demonstrate this.

The defendant also argues that the trial court failed to limit use of the association evidence. While the defendant may have been entitled to a limiting instruction, he has not indicated how this issue was preserved at trial. Pursuant to Practice Book § 4065 (d) (1), the party raising a claim must “include in the brief of that party or the appendix a verbatim statement of all relevant portions of the charge as requested . . . .” Because the defendant has not complied with § 4065 (d) (1) of the rules of practice, I decline to review this claim. State v. Krzywicki, 39 Conn. App. 832, 838, 668 A.2d 387 (1995) (Practice Book § 4061 assigns to appellant responsibility for providing record adequate for review).