Opinion
No. (AC 24082).
Convicted of the crimes of attempt to commit murder and conspiracy to commit murder, the defendant appealed to this court. The defendant, who had been tried with four codefendants, had been charged with, inter alia, the murder of C, the attempt to murder L and one count of conspiracy to commit murder, which did not specify any intended victim of the conspiracy. The defendant claimed that the trial court's jury instructions on the charge of conspiracy to commit murder failed to define an essential element of the crime because the court did not identify C as the person who was alleged to have been the intended object of the conspiracy. Held that the defendant's conviction of conspiracy to commit murder could not stand; this court, in State v. DeJesus ( 92 Conn. App. 92), a companion to this case involving a codefendant, fully addressed the claim raised by the defendant regarding the trial court's jury instructions and determined that because the conspiracy charge was limited to an alleged conspiracy to murder C, the trial court should have instructed the jury that the state was required to prove that the defendant intended to cause the death of C, and that determination was dispositive of the defendant's claim in this case.
Argued January 10, 2005.
Officially released October 25, 2005.
Substitute information charging the defendant with the crimes of murder, attempt to commit murder, conspiracy to commit murder and conspiracy to attempt to commit murder, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Hauser, J.; thereafter, the court granted the defendant's motion for a judgment of acquittal of conspiracy to attempt to commit murder; verdict and judgment of guilty of attempt to commit murder and conspiracy to commit murder, from which the defendant appealed to this court. Reversed in part; new trial.
Alexander H. Schwartz, special public defender, with whom, on the brief, was Irene M. Patalano, special public defender, for the appellant (defendant). Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Cornelius P. Kelly, senior assistant state's attorney, for the appellee (state).
Opinion
The defendant, Xavier Rivera, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a). On appeal, the defendant claims that the trial court improperly instructed the jury on the conspiracy to commit murder charge by failing to define properly the essential elements of the crime. We reverse, in part, the judgment of the trial court.
The defendant also claims that the court improperly enlarged the conspiracy to commit murder charge by instructing the jury on that charge in a manner that permitted it to convict him of an offense with which he was not charged. In addition, the defendant claims that the court improperly admitted a witness' prior written statement as redacted by the state in violation of his rights to confrontation and to present a defense under the sixth and fourteenth amendments to the United States constitution. Because we conclude that reversal is required on different grounds, we need not address those issues.
The defendant and four others, Sigfredo DeJesus, Kelvin Sanchez, Wilfredo Fernandez and Jose Vasquez, each were charged in a substitute information with the murder of Cesar Rivera in violation of General Statutes § 53a-54a (a), attempt to commit the murder of Luis Romero in violation of General Statutes §§ 53a-49 and 53a-54a (a), conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a (a), and conspiracy to attempt to commit murder in violation of General Statutes §§ 53a-48, 53a-49 and 53a-54a (a). The cases were joined, and all five defendants were tried together. The jury found the defendant guilty of conspiracy to commit murder and attempt to commit murder.
The court subsequently acquitted Vasquez of all counts, and acquitted Sanchez and Fernandez of the first and second counts. The court also dismissed the fourth count against all the defendants because it is not a recognized crime in Connecticut. The jury found DeJesus guilty of attempt to commit murder and conspiracy to commit murder. The jury also found Sanchez guilty of conspiracy to commit murder. After the jury failed to reach a verdict as to Fernandez, the court declared a mistrial.
The defendant conceded at oral argument that he was challenging only his conviction of conspiracy to commit murder.
The underlying factual context from which the state's charges against the defendant stemmed are set forth in the companion case of State v. DeJesus, 92 Conn. App. 92, 93-94, 883 A.2d 813 (2005), released on the same date as this opinion. The defendant's specific claim — that the court's instruction on the conspiracy to commit murder charge failed to properly define an essential element of the offense because it did not identify the victim, Cesar Rivera, as the person who was alleged to be the intended object of the conspiracy — was fully addressed in DeJesus. In that decision, we concluded that the conspiracy to commit murder charge was limited to an alleged conspiracy to murder Cesar Rivera and, therefore, the court should have instructed the jury that the state was required to prove that the defendant intended to cause the death of Cesar Rivera. That decision is dispositive of the defendant's claim in this case.