State v. Torres , 41 Conn. App. 495 ( 1996 )

LANDAU, J.

The defendant, Victor Torres, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a)¹ and 53a-54a (a).² The defendant claims that the trial court improperly (1) denied his motions for judgment of acquittal and for a new trial, and (2) deprived him of his constitutional rights to freedom of association, due process, and a fair trial by admitting evidence that he was a member of a gang thereby allowing the jury to find him “guilty by association.”

The jury could reasonably have found the following facts. The defendant was a “regional commander” of a street gang known as the “Latin Kings.” For several weeks, the defendant’s gang was involved in an ongoing dispute with a rival gang known as “Los Solidos.” In the afternoon hours of September 26, 1993, the Latin Kings conducted an emergency meeting at Morales’ Cafe to discuss a recent incident in which a member of their gang was shot at by a member of the rival gang. During the meeting, Jose Martinez, a member of the gang and a witness for the state, served as a lookout. Although Martinez had attended nine prior gang meetings in which the defendant had been present, he did not attend the emergency meeting, nor did he know whether the defendant was there. At the meeting, the gang devised a plan to retaliate for the shooting incident by killing a member of Los Solidos.

After the meeting, Jose Velez, another gang member, instructed Martinez to keep watch for rival gang members from the roof of a four-story building located on East Clay Street. When Martinez arrived, four other gang members, including Velez, were already there. The group possessed an assortment of firearms including an M-16 rifle with a scope, a shotgun and several handguns. Velez had a portable CB radio that he used to maintain contact with other gang members, some of whom had remained at Morales’ Cafe, which was referred to by the gang as “sector one.” Other gang members were stationed in different locations throughout the area.

At approximately midnight, the victim, Ana Plaza, was returning to her home at 79 East Clay Street, which is located across the street from the building where the group stood lookout on the roof. Plaza was accompanied by her son, Obdulio, her daughter, Melissa, and her infant granddaughter. As Plaza and her family prepared to enter Plaza’s house, Velez and the others observed their actions from the rooftop. Velez had a brief conversation over the portable radio with an unknown individual about the activity at the Plaza residence. Immediately following that conversation, Velez instructed his people to fire at the Plaza family. At least three gang members immediately opened fire discharging several rounds of ammunition for a duration of approximately twenty seconds.

As a result of the gunfire, Ana Plaza was struck by a bullet in her hip and Melissa was struck by a bullet in her arm. As both women began screaming, Obdulio ran into the house and phoned the police and an ambulance. Meanwhile, the shooters fled from the roof of the building into a vacant apartment, stuffed their weapons into a duffel bag and ran from the area.

Approximately ten days later, the police arrested the defendant and several other members of the Latin Kings. In an oral statement to Detectives Robert Henderson and Mark Deal of the Waterbury police department, the defendant admitted that he was a member of the Latin Kings and that he held the rank of regional commander at the time of the shooting. Although the defendant denied any personal involvement in the shooting, he informed the police that several members of a gang called the “Nietas,” who were allied with his gang, were responsible for the shooting. The defendant stated that one of the shooters was called “Cano,” and that a Latin King called “Rambo” had helped with the disposal of the weapons used in the shooting.

In Ids first claim, the defendant asserts that the state failed to present sufficient evidence to support his conviction for conspiracy to commit murder. He argues that, although the evidence established that certain members of his gang planned to kill an unspecified rival gang member, the state failed to present sufficient evidence to prove that the defendant knew of or agreed to the plan. He argues that the state’s evidence failed to establish that he had the specific intent to conspire and the specific intent to commit murder, both of which are necessary elements of the charge of conspiracy. In contrast, the state posits that there was sufficient evidence from which the jury could infer both disputed elements of intent.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . .” (Citations omitted; internal quotation marks omitted.) State v. Goodrum, 39 Conn. App. 526, 531-32, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995). Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, 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 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. . . . Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. . . . Moreover, it is well settled that conspiracy is a specific intent crime, with the intent divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also they intended to commit the elements of the offense.” (Citations omitted; internal quotation marks omitted.) State v. Estrada, 28 Conn. App. 416, 420-21, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992).

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). In a conspiracy prosecution, when determining both a defendant’s specific intent to agree and his specific intent that the criminal acts be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop “a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain.” Id., 130.

Having stated these principles to guide us, we proceed with our analysis. The state argues that, from the evidence presented, the jury could conclude that the defendant’s intent to agree to the conspiracy and to kill a rival gang member was established beyond a reasonable doubt. The state contends that the evidence established that the defendant was in the vicinity of the occurrence that day, that he was a regional commander of the Latin Kings, that he had been present at several previous gang meetings that Martinez attended, and that the retaliatory plan to kill a member of Los Solidos was conceived at the emergency meeting. Because of the defendant’s position in the gang, his routine attendance at previous Latin Kings meetings, and the radical nature of the planned operation and its probable consequences, the state asserts that it was reasonable for the jury, in the exercise of common sense and ordinary intelligence and experience, to infer that the defendant had attended the earlier meeting at Morales’ Cafe.

The state further claims that even without drawing the specific inference that the defendant had attended the meeting, it was reasonable for the jury to have inferred that, because the defendant held the position of regional commander, he necessarily knew about the existing conflict between his gang and Los Solidos and the earlier shooting of a Latin Kings member by a Los Solidos member. This knowledge, coupled with Martinez’ testimony that he recognized the defendant’s voice coming over Velez’ portable radio shortly before the shooting, constituted circumstantial evidence sufficient to provide the jury a basis to infer that the defendant knew about the plan and acted in concert with the other gang members. The state finally contends that the jury could have reached the same inference as a result of the defendant’s statement to the police, which the state claims contained “inside information” regarding the identity of one of the shooters and of the person who disposed of the guns.

In summary, the state attempts to build its case on a foundation comprised of three facts: (1) The defendant was a regional commander in the Waterbury Latin Kings gang; (2) Martinez heard the defendant’s voice over Velez’ portable radio on the rooftop sometime during the evening of the occurrence; and (3) the defendant displayed inside knowledge of the shooting when he was interrogated by the police ten days later. The difficulty we have in accepting the state’s argument is the lack of predicate facts from which the jury could reasonably have drawn the appropriate permissive inferences that the defendant was present at the emergency meeting or was in communication with the rooftop shooters. Furthermore, there is nothing in the defendant’s oral statement to the police to allow the jury to infer that he had prior knowledge of the conspiracy.

“A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion. State v. Amarillo, 198 Conn. 285, 300-302, 503 A.2d 146 (1986); see also State v. Shine, 193 Conn. 632, 644-45, 479 A.2d 218 (1984); State v. Johnson, 185 Conn. 163, 167-69, 440 A.2d 858, aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Vasquez, 182 Conn. 242, 246-48, 438 A.2d 424 (1980). State v. Palmer, 206 Conn. 40, 47-48, 536 A.2d 936 (1988). . . . State v. Cooper, [227 Conn. 417, 442-43, 630 A.2d 1043 (1993)].” (Internal quotation marks omitted.) State v. Turmon, 34 Conn. App. 191, 200, 641 A.2d 138 (1994). “Where a group of facts is relied on for proof of an element of a crime it is the cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proven in accordance with that standard. It is only where a single fact is essential to proof of an element, however, that such evidence must support the inference of that fact beyond a reasonable doubt.” State v. Williams, 27 Conn. App. 654, 672-73, 610 A.2d 672, cert. denied, 223 Conn. 914, 614 A.2d 829 (1992).

Although the state asserts that Martinez’ testimony provided sufficient circumstantial evidence of the defendant’s conduct to establish its claims that “the defendant communicated with the rooftop shooters shortly before the shooting,” and that the defendant was present at the emergency meeting, there is nothing in the record to substantiate these claims. To the contrary, Martinez’ testimony is devoid of any information concerning the defendant’s conduct.

Martinez testified that he never saw, or communicated with, the defendant in any manner on the day of the shooting. Martinez did not attend the emergency meeting, nor did he have any knowledge of whether the defendant attended the meeting. Martinez stated that he did not receive any orders from the defendant concerning where, or for what reason, he was to be a lookout on the day of the shooting. Although Martinez claims to have heard the defendant’s voice emanate from Velez’ portable radio while the gang members were on the roof, he could not remember what time he heard the defendant’s voice nor did he ever testify to the nature, length, or substance of what the defendant allegedly said. Martinez was certain, however, that he and the other gang members had been on the rooftop “[f]or a couple of horns” prior to the shooting, and that, although a radio transmission immediately preceded Velez’ order to shoot, that transmission was not the one in which he claimed to have heard the defendant’s voice. On the basis of this evidence, we conclude that it was unreasonable for the jury to infer either that the defendant attended the meeting at Morales’ Cafe or that he communicated directly with the gang members who did the shooting.

Nevertheless, the state maintains that, because Martinez testified that he heard the defendant’s voice over the portable radio, there was proof that the defendant was present at one of the sectors established for purposes of the plan. This argument lacks merit because, although Martinez testified that the defendant’s voice emanated from sector one, he did not say how or why he believed that to be so, other than to say “[bejcause . . . that he was in section one.” Martinez admitted that he was not at sector one at all that night and that he “didn’t really hear what [the defendant] said.” Thus, 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.

Moreover, because Martinez was not at sector one that night and did not hear what the defendant allegedly stated to Velez over the radio, the state’s assertion that the defendant’s overheard voice was a “communication from the [command] post” is a mischaracterization of the evidence. 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 that sector one was the command post, that the defendant was ever at sector one, or that the defendant disclosed his location during the alleged transmission. The state’s assertion, therefore, does not provide an adequate basis to allow us to conclude that the jury could infer, beyond a reasonable doubt, that the defendant participated in the conspiracy. Indeed, on the sparse evidence presented, we conclude that there is no basis for any such inference to be drawn by the jury without resorting to speculation and guesswork. A suspicion of illegal activity on the part of the defendant does not satisfy the state’s burden of proving its case beyond a reasonable doubt. State v. Arbelo, 37 Conn. App. 156, 161-62, 655 A.2d 263 (1995).

The state points to the evidence that the defendant was a regional commander of the Latin Kings to buttress its contention that, by virtue of his gang membership and rank, knowledge of the conspiracy may be imputed to him. The state further argues that the presence of the defendant “at all of the previous meetings attended by Martinez” supports an inference that he was aware of the conspiracy. The record, however, does not justify these assertions. First, contrary to the state’s contention that the defendant always attended the gang meetings, Martinez testified that the defendant “sometimes was there but he didn’t conduct the meetings.” (Emphasis added.) Martinez also testified that the meetings he had attended in the past were all conducted by the president of the gang, an individual other than the defendant. Second, there is no evidence in the record describing either the role of a regional commander within the gang or the gang’s method of disseminating information to its members. When these factors are considered in conjunction with the lack of proof that the defendant attended the emergency meeting, we conclude that it was unreasonable for the jury to infer that the defendant necessarily knew about and intended to participate in the conspiracy solely on the basis of his gang membership and rank.

Finally, the state maintains that the defendant’s statements during custodial interrogation ten days after the incident were evidence of his prior knowledge of and participation in the conspiracy. We do not agree.

Our review of the record reveals that there was nothing of an inculpatory nature in the defendant’s responses to Detective Henderson’s questions despite Henderson’s opinion that the defendant “was reluctant to admit his involvement” in the conspiracy. To the contrary, Henderson testified that the defendant expressly denied any involvement in the conspiracy, and that the defendant could have learned whatever information he possessed about the shooting after it had occurred.

Henderson interrogated the defendant, and at least two other gang members, on October 6, 1993, nearly ten days after the shooting. Henderson testified that he did not take notes during the defendant’s statement nor did he tape-record the defendant’s statement. Relying solely on his memory of the defendant’s interrogation, Henderson prepared a supplemental police report the following day. Henderson testified that he could not remember whether he ever asked the defendant how he acquired the information he conveyed to the police concerning the shooting. As a result, Henderson’s testimony does not provide any indication that the defendant had prior knowledge of the conspiracy merely because he named one of the shooters and the person who disposed of the weapons.

Because the evidence established that there were at least six gang members on the roof and several others stationed in the area, the information the defendant told to Henderson was known to many people and was, therefore, not “inside information” exclusive only to the defendant, as characterized by the state. The record is devoid of any information regarding the source of the defendant’s knowledge and there is no basis for the jury reasonably to infer the defendant’s guilt based on his statements to the police. Thus, the state’s description of the defendant’s statements evincing inside information only presupposes the defendant’s participation in the conspiracy; it does not support a finding of guilt beyond a reasonable doubt.

We conclude that, when evaluated under the appropriate standard, the evidence in this case is insufficient to support the defendant’s conviction of conspiracy to commit murder.

The judgment is reversed and the case is remanded with direction to render judgment of acquittal.³

In this opinion LAVERY, J., concurred.

1 General Statutes § 53a-48 (a) provides: “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 or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

2 General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

3 In view of our remand, we do not reach the defendant’s second claim.