Opinion
No. CR06-0062435-T
August 28, 2009
MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT OF ACQUITTAL
I. INTRODUCTION.
On a late summer afternoon in 2006, the young life of Aaron McCrae ended in a hail of bullets near the train station in New Haven. Two and a half years later, Geraldo Rosado, the defendant herein, was tried for being a member of the conspiracy that plotted McCrae's death. On April 17, 2009, the jury found the defendant guilty as charged. The question presented by the motion for judgment of acquittal now before the court is whether the evidence was sufficient to allow the verdict to stand. For the reasons set forth below, the evidence, while not overwhelming, was sufficient to sustain the verdict.
II. THE EVIDENCE.
Examined in the light most favorable to the State, the evidence establishes the following facts. In the early morning hours of September 17, 2006, a man with the street name of "Carlito" was killed in the area of the Church Street South housing project near the train station in New Haven known as the "jungle." "Carlito's" associates blamed McCrae (who had the street name "A-Love") for the killing.
McCrae has never been officially charged with "Carlito's" killing. He became a victim of vigilante justice before any investigation could occur. See Walter Van Tilburg Clark, The Ox-Bow Incident (1940).
A man with the descriptive street name of "Primo" called a meeting to place a bounty on McCrae. The only evidentiary description of this meeting is contained in a tape-recorded statement that the defendant gave to the police on December 16, 2006. According to the defendant:
We went to the jungle. Primo put a hit out to kill A-Love. He gave the two guns to Luis Santana and showed him fifteen thousand that once he do what he had to do he'll get the money and from there we went up chilled for a little bit. Went up the hill, they got a call that A-Love was out there and me, this other kid name Juan Nunez, known as Bebe, went up the hill. Louis Santana was in the alleyway, then from there he ran across the street and shot A-Love.
(Ex. 129, at 3.)
The evidence shows that McCrae was shot in the back by seven to nine bullets (the fragmentation of some bullets makes the exact count uncertain) fired by two different handguns. Two shots resulted in lethal wounds. McCrae died within moments. The handguns, subsequently discovered in a basement hatchway in a house on Carlisle Street containing a second-and-third-floor apartment occupied by Nunez, were a .38 caliber revolver and a 9mm pistol. The defendant knew this. (Ex. 129, at 8.)
The crime occurred on a warm, sunny afternoon in a public area. Within moments, a crowd of approximately 150 people had gathered. In spite of the fact that many people must have seen the shooting, no one came forward. A 911 caller reported that McCrae was shot by "two Spanish guys." (Ex. 101, at 11.) The defendant, as mentioned, told the police that McCrae was shot by Luis Santana. No other description of the crime is in evidence.
Theresa Douskey, a motorist who heard the shots and arrived at the scene shortly after the shooting, testified that she saw a young man with a gun leaving the scene as she arrived. She did not, however, see the actual shooting.
According to the defendant's December 16, 2006 statement, after the shooting, "We ran up Carlisle and went straight to Bebe house, known as Juan Nunez." (Ex. 129, at 4.) The defendant said that he was on the porch when Santana and Nunez went upstairs. Nunez told him that, "He put the guns away for Luis Santana." ( Id., at 10.) A few days later, when the guns were recovered at Nunez's residence, Santana called the defendant and told him "they caught his guns." ( Id., at 15.)
DNA mixtures of at least three individuals were recovered from the grips of each gun. The defendant could not be eliminated as a possible contributor with respect to either weapon. Subsequently, on two occasions prior to his December 16, 2006 statement, the defendant falsely told the police that he had not been at the scene of the killing.
III. HISTORY OF THE PROCEEDINGS.
On December 18, 2006, the defendant was arrested, pursuant to a warrant, for the murder of McCrae. On April 13, 2007, the State filed an amended four-count information, and the trial commenced before a jury of twelve. On April 16, 2007, after the close of the prosecution's case-in-chief, the court granted the defendant's motion for judgment of acquittal with respect to the first, third, and fourth counts and denied the motion with respect to the second count, alleging conspiracy to commit murder. P.B. § 42-41. On April 17, the jury found the defendant guilty as charged on the remaining count.
The amended four-count information charged the defendant with the crimes of: (1) murder, in violation of Conn. Gen. Stat. § 53a-54a; (2) conspiracy to commit murder, in violation of Conn. Gen. Stat. §§ 53a-48 53a-54a; (3) criminal possession of a firearm, in violation of Conn. Gen. Stat. § 53a-217(a)(1); and (4) carrying a pistol without a permit, in violation of Conn. Gen. Stat. § 29-35. The defendant elected to have count (3) tried to the court and the remaining counts tried to the jury.
The granting of the defendant's motion for judgment of acquittal on the murder count created an interesting problem with respect to the number of the already-impaneled jury. Conn. Gen. Stat. § 54-82(c) provides that, "If the party accused does not elect to be tried by the court, he shall be tried by a jury of six except that no person, charged with an offense which is punishable by death or life imprisonment, shall be tried by a jury of less than twelve without his consent." But while murder is punishable as a class A felony and consequently punishable by life imprisonment; Conn. Gen. Stat. §§ 53a-35a(2) 53a-54a(c); conspiracy to commit a class A felony such as murder is a class B felony and not so punishable; Conn. Gen. Stat. § 53a-51. Although a strict reading of Conn. Gen. Stat. § 54-82(c) suggests that a jury of six was appropriate at this point, a jury of twelve had already been impaneled and had heard the evidence. There was, moreover, no legally prescribed method of winnowing the twelve already impaneled jurors down to six. (The court could have picked the first six jurors selected by the parties or picked six names from a hat, but neither method — while seemingly fair — had the advantage of a pre-existing approval of the legislature or a reviewing court.) The court resolved the dilemma by allowing the defendant to choose between a jury of six and a jury of twelve. The defendant chose a jury of twelve. The State did not object.
The defendant subsequently filed the post-verdict motion for judgment of acquittal now before the court. The motion argues that the evidence is insufficient to sustain the conviction. It was argued on August 27, 2009.
IV. DISCUSSION.
The question presented by the motion now before the court is whether the evidence is sufficient to sustain the defendant's conviction of conspiracy to commit murder in violation of Conn. Gen. Stat. §§ 53a-48 53a-54a.
The standard of review to be employed by the court in reviewing a sufficiency of the evidence claim following a jury verdict finding the defendant guilty of the crime of conspiracy is well settled:
We apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . .
While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt . . .
To establish the crime of conspiracy under § 53a-48 . . . the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act . . .
In the present case, while the state must prove an agreement . . . the existence of a formal agreement between the coconspirators need not be proved because it is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose . . . The requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts . . . Further, conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.
State v. Millan, 290 Conn. 816, 825-26, 966 A.2d 699 (2009). (Internal quotation marks, brackets, and citations omitted.)
The sufficiency of the evidence issue presented here focuses on the element of agreement. Conn. Gen. Stat. § 53a-48(a) provides that, "A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy." (Emphasis added.) Agreement is an element of the crime that must be proven beyond a reasonable doubt, and the jury in this case was instructed accordingly.
With respect to the element of agreement, the jury was instructed that:
The first element that the State must prove beyond a reasonable doubt is that the defendant made an agreement with one or more persons. It is not necessary for the State to prove that there was a formal or express agreement between them. It is sufficient to show that the parties knowingly engaged in a mutual plan to do a criminal act. Conspiracies are often formed in secret. But an agreement, just like any other fact, may be proven by circumstantial evidence. It is not necessary to establish that the persons making the agreement signed papers, shook hands, or uttered the words, "We have an agreement." Rather, a conspiracy can be inferred from the conduct of the persons involved.
A mere knowledge, acquiescence, or approval of the object of the agreement without cooperation or an agreement to cooperate is not, however, sufficient to make someone a party to a conspiracy to commit the criminal act. Mere presence at the scene of the crime, even when coupled with knowledge of the crime, is insufficient to establish a conspiracy.
In order to convict a person of conspiracy, the State need not show that the person had direct communication with all other conspirators. It is not necessary that each conspirator be acquainted with all others or even know their names. It is sufficient that he has come to an understanding with at least one of the others and has come to such understanding with that person to further a criminal purpose. It is also not essential that he know the complete plan of the conspiracy in all of its details. It is enough if he knows that a conspiracy exists or that he is creating one and that he is joining with at least one other person in an agreement to commit a crime, in this case the crime of murder.
The defendant's December 16, 2006 statement firmly establishes the existence of a conspiracy to murder McCrae. The eventual murder of McCrae was the ultimate "overt act" to further the purpose of the conspiracy. Whether the defendant joined with at least one other person in an agreement to commit the murder is a separate issue of fact. There was no direct evidence that the defendant joined in an agreement. The evidence was, instead, circumstantial. There is, however, nothing wrong with this latter manner of proof. "Because of the secret nature of conspiracies, a conviction usually is based on circumstantial evidence . . . Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words we have an agreement . . . The requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts." State v. Ortiz, 280 Conn. 686, 708-09 n. 14, 911 A.2d 1055 (2006). (Internal quotation marks, brackets, and citation omitted.)
Circumstantial evidence is sometimes more reliable than direct evidence. "A fact positively sworn to by a single eyewitness of blemished character, is not so satisfactorily proved, as is a fact which is the necessary consequence of a chain of other facts sworn to by many witnesses of undoubted credibility." Commonwealth v. Harman, 4 Pa. 269, 272 (1846). Conspiracy jurisprudence recognizes this well-known fact. At the same time, however, our jurisprudence also recognizes that, "[M]ere presence at the scene of the crime, even coupled with knowledge of the crime, is not sufficient to establish guilt of a conspiracy." State v. Fleming, 36 Conn.App. 556, 572, 651 A.2d 1341, cert. denied, 233 Conn. 913, 659 A.2d 186 (1995). The purpose of this rule is to require that a defendant cannot be convicted of conspiracy without evidence that he "was more than a mere bystander." United States v. Rodriguez-Ortiz, 455 F.3d 18, 23 (1st Cir. 2006), cert. denied, 127 S.Ct. 1010 (2007).
Rosado views the "mere presence" rule as his safe harbor in this case, but, on this evidence, it is not. The evidence establishes much more than Rosado's "mere presence at the scene of the crime." He was, of course, present at the scene of the crime — he claims to have personally witnessed McCrae's execution — but he was present at a great many other places as well. By his own admission, he was present when "Primo" put a bounty on McCrae and gave two guns to Luis Santana. He was present at the scene of the crime, along with Juan Nunez. He subsequently ran — with Nunez — to Nunez's house on Carlisle Street. Nunez's house is the same place to which Santana ran after the shooting and the location at which the murder weapons were subsequently discovered. After the murder weapons were discovered, Santana called Rosado and informed him of this fact. In addition to these facts — all admitted by Rosado — DNA evidence indicates a probability (although not a certainty) that Rosado at some point touched the grip of each of the murder weapons. Rosado also made false statements to the police concerning his whereabouts at the time of the killing.
This scenario involves much more than mere presence at the scene of the crime. It is, instead, an intricate web of circumstantial evidence. Rosado's statement puts him not just at the scene of the crime but at each of three locations associated with the murder — the bounty meeting with "Primo," the murder scene itself, and Nunez's house. In addition, the same statement shows that Rosado had at least some involvement with at least three different conspirators — "Primo," Nunez, and Santana — and the involvement with Santana was on multiple locations. DNA evidence shows a probability that Rosado touched each of the murder weapons. Finally, Rosado made false statements to the police.
Could all of this be a coincidence? The jury was surely entitled to infer that it was not. It might have been a coincidence that Rosado was present at the bounty meeting with "Primo," it might have been a coincidence that he was present at the murder scene, and it might have been a coincidence that he was present at Nunez's house, but the likelihood that all of these personal appearances were coincidental quite safely approaches zero.
A series of decisions of the United States Court of Appeals for the Second Circuit recognizes the common sense decision between mere presence at the scene of the crime, on the one hand, and the more extensive involvement in a series of events that can safely underpin a finding of conspiracy, on the other. That court has long recognized that, "[M]ere presence at the scene of the crime, even when coupled with knowledge that at that moment a crime is being committed, is insufficient to prove . . . membership in a conspiracy." United States v. Johnson, 513 F.2d 819, 823-24 (2d Cir. 1975).
Johnson is a much-cited case applying this rule. Johnson accompanied a boyhood friend in an automobile trip from New Hampshire to Montreal to buy a motorcycle. Unhappily for Johnson, his friend did not restrict his Canadian purchases to motorcycles. One night, while Johnson was asleep, his friend left their motel room to purchase drugs and secreted them behind a door panel in the car. The drugs were discovered by Customs authorities when the two friends returned to the United States, and Johnson was eventually arrested for conspiracy to import the drugs. On appeal, the Second Circuit vacated the conviction, holding this to be a case of "mere presence." Although Johnson had unwisely told the Customs authorities that he was hitchhiking, the Court explained that, "[F]alsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant's innocence as it is to the Government's theory of guilt." Id., at 824.
The Second Circuit has subsequently explained that Johnson does not apply to cases involving multiple appearances by a defendant at a variety of places associated with the crime. United States v. Pedroza, 750 F.2d 187 (2d Cir. 1984), cert. denied, 479 U.S. 842 (1986), is instructive. Pedroza was convicted of membership in a conspiracy to kidnap. The evidence showed that Pedroza was present at the purchase of the van later used in the abduction. Although Pedroza did not participate in the abduction itself, he arrived at the house to which the victim had been taken. He was then present at a number of locations to which the victim was subsequently taken. Johnson did not save Pedroza on appeal following his conviction. The Court explained that, while Johnson's presence in his friend's automobile "could have resulted from happenstance," here there was "nothing in the record to suggest that [Pedroza] may have had any purpose in these . . . timely appearances other than to further the goals of the conspiracy." 750 F.2d, at 199. For an analogous pattern of "timely appearances," see United States v. Martino, 759 F.2d 998, 1003 (2d Cir. 1985).
The dividing line between "mere presence at the scene of the crime," on the one hand, and a series of "timely appearances," must be located by judgment rather than mathematics in any given case. But the common-sense standard articulated by Ian Fleming's memorable villain, Auric Goldfinger, is helpful in this regard. "Mr. Bond, they have a saying in Chicago: `Once is happenstance. Twice is coincidence. The third time it's enemy action.'" Ian Fleming, Goldfinger 204 (1959).
There was plenty of "enemy action" here. The totality of the evidence — including Rosado's many "timely appearances" at places closely associated with the crime — was sufficient to allow the jury to find that Rosado agreed with one or more of the other conspirators to take part in that action.
The evidence presented was, as mentioned, less than overwhelming on this issue. Different people, hearing and assessing the same evidence, might draw different inferences and come to different factual conclusions. But hearing and assessing the evidence, drawing inferences, and coming to factual conclusions was the job of the jury — a jury chosen by the defendant as well as by the State. "It's an uphill battle to overturn a jury verdict. Assessing credibility of witnesses and interpreting the evidence are tasks ordinarily left to the jury." United States v. Corson, No. 08-2094, slip op. at 2 (7th Cir. August 27, 2009).
The motion for judgment of acquittal is denied.
A pre-sentence investigation report is ordered. The defendant will be sentenced at 10:00 A.M. on Friday, November 6, 2009.