Opinion
No. CR 06-0226416
July 26, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
The defendant, Rodney Hankerson, has moved this Court for judgment of acquittal on the first count of the information, felony murder, in violation of Connecticut General Statutes § 53a-54c. The defendant was found guilty of this and other counts of the information by a jury on April 25, 2007.
The defendant's argument is based upon the facts presented at the trial. He argues that conspiracy is an implied element of the crime of felony murder, and since he was acquitted of conspiracy to commit robbery, the felony murder count must fail.
I PROCEDURAL BACKGROUND AND ISSUE PRESENTED
The defendant was convicted on April 25, 2007, after a trial by jury of felony murder in violation of Connecticut General Statutes § 53a-54c, robbery in the first degree in violation of Connecticut General Statutes § 53a-134(a)(1), and robbery in the first degree in violation of Connecticut General Statutes § 53a-134(a)(3). The defendant was acquitted of conspiracy to commit robbery in the first degree, conspiracy to commit larceny in the first degree, and larceny in the first degree.
On April 30, 2007, the defendant filed a motion for judgment of acquittal on the felony murder count pursuant to Connecticut Practice Book § 42-51 and the United States and Connecticut constitutions. The defendants motion indicates that "Mr. Hankerson is entitled to judgment of acquittal on this count because he was acquitted of conspiracy to commit robbery, and construing the facts established at trial in the light most favorable to sustaining the verdict, he could not have been found guilty of felony murder without the jury first finding that he joined a conspiracy to rob Luis Bruno. Having been acquitted of conspiracy to commit robbery, he is entitled to judgment as a matter of law as to felony murder." Defendant's Motion For Judgment of Acquittal on Felony Murder Count, p. 1. The defendant filed a memorandum of law in support of the motion for judgment of acquittal on June 19, 2007. The state filed a memorandum in opposition on July 19, 2007. The defendant's reply memorandum was filed on July 24, 2007.
II LAW
The sole authority for the defendant's assertion that, apart from cases where a defendant acts alone, the existence of a conspiracy is an implied element of felony murder is a statement by Judge McMahon in the case of State v. Ortiz, 101 Conn.App. 411 (2007). The statement was made in the context of a hearsay objection made by defense counsel. Counsel made the objection and the state responded that the statement was admissible as a c-conspirator's statement. Id., 428. The defense responded that there was "no conspiracy charge as to the robbery count, the felony murder count or the manslaughter charge." (Emphasis in original; internal quotation marks omitted.) Id. Judge McMahon overruled the defendant's objection noting that "there was a conspiracy charge related to the robbery and [he] stated that the felony murder charge, by its very nature, is accessorial." Id., 428-29. The Appellate Court did not comment upon this statement. From this statement by Judge McMahon and from the silence of the Appellate Court, the defendant opines that this "compels the conclusion that conspiracy is therefore an implied element of felony murder." Defendant's Memorandum of Law, p. 6 n. 2.
The defendant refers to the Ortiz court as the Supreme Court, but it was in fact the Appellate Court.
Judge McMahon's statement is not necessarily incorrect. Much like the first degree robbery statute (§ 53a-134), the felony murder statute contains accessory language. The felony murder statute (§ 53a-54c) provides in pertinent part that "[a] person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . ." However, the defendant then takes an extra step and concludes that the phrase "acting . . . with one or more persons" implies the existence of a conspiracy. The defendant seems to be using the words "accessorial" and "conspiracy" interchangeably. He offers no explanation for this and this is not an accurate statement of the law. The only logical inference that can be made for the defendant's interpretation of Judge McMahon's statement that the felony murder charge, by its very nature, is accessorial, is that it was made within the context of argument regarding the co-conspirator hearsay exception. The defendant's interpretation, however, is a quantum leap that is not supported by the law because conspiracy and accessorial liability are entirely different under the law.
The defendant cites the language as "with one or more other persons," but it actually is "with one or more persons."
"Acting as an accessory to a crime and conspiring to commit a crime . . . are not the same acts. One condemns giving intentional aid to another who engages in unlawful conduct, while the other condemns the act of agreeing to engage in criminal conduct." State v. Green, 81 Conn.App. 152, 158, cert. denied, 268 Conn. 909 (2004). "[A]ccessorial liability and conspiracy are distinct theories of criminal liability." State v. Lopez, 280 Conn. 779, 820 (2007) (citing State v. Martinez, 278 Conn. 598, 611-19 (2006)). In Lopez, our Supreme Court concluded that it was improper to include injury instructions language pertaining to theories of conspiracy and joint criminal enterprise, including language of "an agreement," when the defendant was charged only as a principal or an accessory. State v. Lopez, supra, 821-22.
The cases cited by the defendant to support his position are inapposite to this case. In reviewing the defendant's position, it appears that the case law is sparse on this subject. One case that remotely addresses the topic is State v. Fudge, 20 Conn.App. 665, cert. denied, 214 Conn. 807 (1990). In that case, the defendant argued that his convictions of conspiracy to commit robbery in the first degree and of being an accessory to robbery in the first degree violated the double jeopardy clause. Id., 668-69. Each charge required proof of a fact that the other did not, including proof of an agreement within the conspiracy charge that was not within the accessory to robbery charge. Id., 669. "The defendant trie[d] to surmount this obstacle by arguing that participation in a robbery as an accessory necessarily requires an agreement between the participants." Id. The Appellate Court found that "[t]his argument is flawed. One element of the separate and distinct crime of conspiracy is an unlawful agreement. There is, however, no such crime as `being an accessory' . . . The defendant is charged with committing one substantive offense; [t]he accessory statute merely provides alternate means by which a substantive crime may be committed . . . It has long been the law of this state that there is no practical distinction in being labeled an accessory or a principal for the purpose of determining criminal responsibility . . . Thus, the substantive crime with which the defendant was charged was robbery, and an agreement with another person is not an element of robbery." (Citation omitted; internal quotation marks omitted.) Id., 669-70.
The defendant argues that "[b]ased on this evidence, no rational juror could have concluded that Davila did not rob and stab Bruno . . . Having found that Hankerson did not conspire to commit robbery, and having determined that the evidence did not permit a finding that he acted alone in killing Bruno, the felony murder conviction is legally inconsistent with the acquittal of conspiracy to commit robbery, and Hankerson is entitled to judgment of acquittal on the charge of felony murder." Defendant's Memorandum, p. 10.
However, the law is contrary to this assertion. "Where the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration . . . If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other." (Citations omitted; internal quotation marks omitted.) State v. Soto, 59 Conn.App. 500, 504 (2000). The defendant in Soto argued that the verdicts of guilty to murder as an accessory and not guilty to conspiracy to commit murder were "inconsistent as a matter of law because they are based on a legal impossibility, that is, two people cannot aid and abet one another to commit murder without the two first having made at least an implied agreement to commit the crime." Id., 503. The Appellate Court held that "[a] conviction of the defendant for conspiracy requires proof of an agreement, whereas to convict him as an accessory to murder proof of such an agreement is not necessary . . . [C]onsequently a conviction of one crime is not inconsistent on its face with an acquittal of the other." Id., 504-05. Similarly, as previously stated, an agreement is not an element of felony murder. Felony murder and conspiracy to commit robbery each requires proof of an element that the other does not. Therefore, a conviction on one and acquittal on the other is not legally inconsistent. The defendant's lengthy discussion of the evidence in the trial is irrelevant with regard to a claim of legal inconsistency.
The jury's verdict is not necessarily factually inconsistent either. However, factual consistency in a jury verdict is not required. State v. Knight, 266 Conn. 658, 669 (2003).
A brief review of the facts that were presented at the trial and considered by the jury addresses the issue of reasonably permitting a finding of guilty beyond a reasonable doubt as to the felony murder count. The defendant accompanied Herman Apodaca and Eduardo Davila to New Britain to meet Jose Ortiz and thereafter Luis Bruno, to complete an illegal narcotic transaction of four kilograms of cocaine in exchange of $60,000. In two separate vehicles, the defendant, Davila and Apodaca arrived at the CVS store in New Britain. There they met Jose Ortiz, who led them to 151 Dean Drive, New Britain. Mr. Bruno was in the residence alone. The testimony presented indicated that Apodaca, Davila and Hankerson entered the residence. A short time later, Apodaca exited carrying a plastic-type shopping bag that appeared to have money in it in a shape "bigger than a watermelon." Remaining in the residence were Davila and Hankerson. A while later they exited the residence with what appeared to be blood on both of them, although one of the two (Davila) removed the blood stained shirt and discarded it. Raul Cruz testified that he fired shots at the vehicle containing Davila and Hankerson, who sped away. Later in the investigation, a search warrant was obtained for the defendant's apartment in New York. As a result of the search, the deceased's wallet was found in the defendant's closet and duct tape with DNA of the deceased was found in the defendant's closet. The defendant did testify.
The jury was able, as was their duty, to determine what evidence they found credible. What was before them, the evidence presented reasonably permits a finding of guilty beyond a reasonable doubt of felony murder.
Because engaging in a conspiracy is not an element of felony murder, the jury's verdict is not legally inconsistent.
III CONCLUSION
For all the foregoing reasons, the defendant's motion for judgment of acquittal on the felony murder count is denied.