State v. Gonzalez

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STATE OF CONNECTICUT v. JASON GONZALEZ
(SC 18991)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued January 10—officially released April 15, 2014
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Richard J. Colangelo, Jr., senior assistant
state’s attorney, for the appellant (state).
Glenn W. Falk, assigned counsel, for the appellee
(defendant).
Opinion
ROBINSON, J. The sole issue in this certified appeal
is whether there is sufficient evidence to support the
jury’s verdict that the defendant, Jason Gonzalez, com-
mitted manslaughter in the first degree with a firearm
as an accessory in violation of General Statutes §§ 53a-
8 (a)1 and 53a-55a (a),2 in connection with a shooting
that occurred during an altercation in Norwalk’s
Roodner Court housing complex (Roodner Court) on
Christmas night in 2007. The state appeals, upon our
grant of its petition for certification,3 from the judgment
of the Appellate Court reversing in part the trial court’s
judgment of conviction and remanding the case to that
court with direction to render judgment of acquittal on
the charge of manslaughter in the first degree with a
firearm as an accessory, the charge that enhanced the
defendant’s sentence in accordance with General Stat-
utes § 53-202k.4 State v. Gonzalez, 135 Conn. App. 101,
102–103, 41 A.3d 340 (2012). On appeal, the state con-
tends that the Appellate Court improperly concluded
that there was insufficient evidence to prove beyond a
reasonable doubt that the defendant had acted as an
accessory by intentionally aiding Donald Wilson, the
person who fired the fatal shots. Guided by, inter alia,
our recent decision in State v. Bennett, 307 Conn. 758,
59 A.3d 221 (2013), we conclude that the record contains
insufficient evidence to prove that the defendant inten-
tionally aided Wilson in committing the homicide.
Accordingly, we affirm the judgment of the Appellate
Court.
The record reveals the following relevant facts, which
the jury reasonably could have found, and procedural
history. On the night of December 25, 2007, Kenny Jack-
son was in a third floor apartment in Roodner Court’s
building thirteen, celebrating Christmas by having
drinks with friends. Shortly before 11 p.m., Jackson left
the apartment and went downstairs to the first floor of
the building in an attempt to purchase marijuana and
crack cocaine. In the first floor hallway, Jackson
encountered several people, including the defendant
and Wilson. Jackson asked them, ‘‘who’s straight,’’
which is street slang for ‘‘[w]ho’s got drugs,’’ to which
Wilson replied that ‘‘he [had] something.’’ Jackson then
went with Wilson to a balcony in the second floor hall-
way to consummate the drug sale.
While Jackson and Wilson were in the second floor
hallway, the victim, Larry Paulk, a longtime acquain-
tance of Jackson, exited his mother’s apartment, where
his family had gathered for a Christmas celebration,
and ‘‘star[ed]’’ at the men, leading Jackson to sense that
the victim was bothered by the drug sale occurring
there. Jackson and Wilson then left the second floor
and went to the back door on the first floor of the
building to complete the sale out of the victim’s view.
Shortly thereafter, the victim came downstairs and
around the corner toward that back doorway; Jackson
asked Wilson to ‘‘[w]ait until he leaves’’ before making
the sale. The victim then walked down the hallway
toward the building’s front door. Jackson and Wilson
then moved in that same direction, at which point the
defendant was waiting by the front door. As the victim
left the building, the defendant said ‘‘Merry Christmas.’’
The victim, however, ignored him, leading the defen-
dant to call the victim an ‘‘asshole.’’ The victim then
turned, reentered the building, and confronted the
defendant in the vestibule area, where two young
women also were present.
Although Jackson attempted to defuse the brewing
confrontation by saying, ‘‘Larry, he didn’t say anything
to you,’’ the defendant drew a Glock semiautomatic
handgun and pointed it at the victim, stating, ‘‘Yeah, I
didn’t say anything. I didn’t say anything to you.’’ While
the two men were standing face-to-face, the victim then
grabbed at the handgun in the defendant’s hand, and
they began to wrestle, prompting Jackson to flee from
the building to the nearby streets. Shortly thereafter,
while in flight, Jackson heard a gunshot; he did not see
who fired the gun. Jackson then flagged down James
Wright, a Norwalk police officer, for assistance.
In the meantime, Fred Paulk (Fred), the victim’s
brother, who was also attending his family’s Christmas
celebration, heard two gunshots approximately three
minutes after the victim left the second floor apartment.
Fred then ran to the balcony and saw the victim wres-
tling with the defendant on the ground in the first floor
hallway, while one of the young women held the defen-
dant around the waist, telling him to stop fighting. Fred
then saw Wilson standing in the front doorway pointing
the defendant’s gun, which had fallen to the floor during
the struggle, at the victim.5 When the victim broke loose
from the struggle, he fell back against the wall with
mailboxes for the building, and the defendant and the
woman fell toward the door. Despite Fred’s pleas, Wil-
son fired two shots at the victim at close range; one,
the fatal shot, struck him in the chest, and the other
struck him in the elbow and upper arm before the bullet
lodged in the victim’s chest wall. Wilson then grabbed
the defendant by his shirt, and dragged him out of the
building moving backward like he ‘‘was using him as a
shield,’’ with one hand, while pointing the gun with the
other. Fred yelled at Wilson as he and the defendant
ran away, threatening to kill him. The police arrived at
the scene shortly thereafter.6
The defendant and Wilson were subsequently
arrested.7 The state charged the defendant in a four
count amended information with manslaughter in the
first degree with a firearm as an accessory in violation
of §§ 53a-8 (a) and 53a-55a (a), criminal possession of
a firearm in violation of General Statutes § 53a-217 (a)
(1),8 carrying a pistol without a permit in violation of
General Statutes § 29-35 (a), and sought the sentence
enhancement pursuant to § 53-202k for having commit-
ted a class A, B or C felony with a firearm. The case
was tried to a jury. Following the trial court’s denial of
the defendant’s motions for acquittal,9 the jury returned
a verdict finding the defendant guilty on all counts. The
trial court rendered a judgment of guilty in accordance
with the jury’s verdict, and sentenced the defendant to
a total effective sentence of forty-five years imprison-
ment, of which ten years was a mandatory minimum.10
The defendant appealed from the manslaughter con-
viction and the associated sentence enhancement11 to
the Appellate Court, claiming, inter alia,12 that there was
insufficient evidence that he had ‘‘solicited, requested,
commanded, importuned or intentionally aided’’ Wilson
in the commission of the homicide. State v. Gonzalez,
supra, 135 Conn. App. 103. In a unanimous opinion, the
Appellate Court agreed with the defendant, and rejected
the state’s argument that ‘‘the defendant was properly
convicted upon sufficient evidence, both direct and cir-
cumstantial, and from the ‘intricate chain of eminently
reasonable and logical inferences flowing from the evi-
dence.’ ’’ Id., 108–109. The Appellate Court determined
that the ‘‘record is devoid of any evidence that the
defendant solicited, requested, commanded, impor-
tuned or intentionally aided Wilson in the commission
of the crime of manslaughter. Moreover, there were no
facts before the jury from which it reasonably could
have inferred that the defendant engaged in such con-
duct. The testimony adduced at trial indicated that the
defendant pointed a gun at the victim, and the two then
began struggling for the weapon. The record contains
no evidence, however, as to how the gun came into
Wilson’s possession, nor any evidence of any conduct
by the defendant which reasonably could be interpreted
as assisting Wilson.’’13 Id., 109. The court further noted
that, ‘‘[a]lthough the defendant brandished a gun at the
victim, the evidence suggests that this event occurred
independently of the drug transaction. There was no
evidence that the defendant participated at all in the
drug transaction.’’14 Id., 110. Thus, the Appellate Court
concluded that ‘‘the jury could not have inferred reason-
ably and logically that there was sufficient evidence to
convict the defendant of manslaughter in the first
degree with a firearm as an accessory.’’ Id., 113. Accord-
ingly, the Appellate Court reversed the trial court’s judg-
ment ‘‘with respect to the defendant’s conviction of
manslaughter in the first degree with a firearm as an
accessory and with respect to the sentence enhance-
ment pursuant to § 53-202k,’’ and remanded the case
to that court ‘‘with direction to render judgment of
acquittal on that charge and to resentence the defendant
on the remaining charges . . . .’’ Id. The Appellate
Court affirmed the trial court’s judgment ‘‘in all other
respects.’’ Id. This certified appeal followed. See foot-
note 3 of this opinion.
On appeal to this court, the state claims that, under
the well established standard of review applicable to
sufficiency of the evidence claims, the jury’s verdict is
supported by a ‘‘chain of reasonable and logical infer-
ences from the evidence that established the defen-
dant’s guilt beyond a reasonable doubt.’’ The state
posits that, from the evidence adduced at trial, the jury
reasonably could have inferred that the defendant acted
to aid Wilson because: (1) given the correlation between
guns and the narcotics trade, Wilson and the defendant
‘‘were operating together to sell drugs inside . . .
Roodner Court,’’ and the ‘‘defendant was armed with
a firearm in order to protect Wilson and their drug
enterprise’’; and (2) citing State v. Turner, 252 Conn.
714, 751 A.2d 372 (2000), the defendant was the party
who had ‘‘aided Wilson in shooting the victim by [pro-
viding the weapon and] introducing it into the situa-
tion,’’ including by pointing the gun at the victim. The
state argues that, ‘‘[p]ut another way, this incident was
really about a concerned citizen interrupting a drug
deal, and his being shot by the second dealer or accom-
plice after the first one—the defendant—initially drew
a gun on the citizen.’’ The state further contends that
the Appellate Court’s conclusion to the contrary
resulted from an improper application of the standard
of review that allowed it to ‘‘suggest that it was equally
reasonable for the jury to draw inferences from the
evidence that were consistent with a finding of inno-
cence,’’ namely, that: (1) ‘‘the defendant was merely
present in the hallway with Wilson and not associated
with the drug trade’’; and (2) ‘‘Wilson acquired the gun
in the midst of the struggle between the victim and
the defendant and not because the defendant gave the
weapon to him.’’
In response, the defendant contends that there was
no evidence that he solicited, requested, importuned or
intentionally aided Wilson by giving him the gun, as the
state’s theory of the case was that Wilson picked up
the gun after it was dropped during the struggle between
the victim and the defendant. See footnote 5 of this
opinion. Noting the conceptual difference between
accessorial liability under § 53a-8, and conspiratorial
liability under the Pinkerton doctrine,15 the defendant
relies on our recent decision in State v. Bennett, supra,
307 Conn. 758, and emphasizes that the state did not
plead or prove that Wilson and the defendant had
engaged in a conspiracy to sell drugs in Roodner Court,
with the victim’s shooting being a foreseeable result of
that conspiracy. Particularly given the lack of evidence
of any ‘‘coordination or preconcert’’ between Wilson
and the defendant, the defendant posits that the sole
reason he drew the gun on the victim was their ‘‘petty
verbal dispute, not to protect anyone’s drug business.’’
Further, the defendant argues that his ‘‘conduct after
the shooting yields no facts or inferences revealing any
intent to aid the principal as part of an ongoing criminal
enterprise,’’ again contrasting Bennett and noting that
Wilson had dragged him out of the building, using him as
a human shield. Finally, the defendant cites numerous
sister state decisions from Kentucky, Missouri, and Vir-
ginia16 as illustrative of the propositions that, under
an accessorial theory of liability, absent evidence of
‘‘prearrangement, mutual understanding, or concerted
action, a defendant cannot be held liable as an acces-
sory unless he encourages the principal by some overt
act or oral expression to commit the crime charged,’’
and that ‘‘the accused cannot be convicted of the inde-
pendent crime of a confederate not committed in the
execution of a common design, even if the defendant
is involved in some other criminal activity.’’ We agree
with the defendant, and conclude that the Appellate
Court properly determined that there was insufficient
evidence to support his conviction for manslaughter in
the first degree with a firearm as an accessory.17
‘‘In reviewing a sufficiency of the evidence claim, 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 con-
strued 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. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] 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. . . . Moreover,
[w]here a group of facts are relied upon for proof of
an element of the crime it is their 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 proved in accordance
with that standard. It is only where a single fact is
essential to proof of an element, however, such as iden-
tification by means of fingerprint evidence, that such
evidence must support the inference of that fact beyond
a reasonable doubt. . . .
‘‘As we have often noted, however, proof beyond
a reasonable doubt does not mean proof beyond all
possible doubt . . . nor does proof beyond a reason-
able doubt require acceptance of every hypothesis of
innocence posed by the defendant that, had it been
found credible by the trier, would have resulted in an
acquittal. . . . 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. . . . Furthermore,
[i]t is immaterial to the probative force of the evidence
that it consists, in whole or in part, of circumstantial
rather than direct evidence.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) State v.
Otto, 305 Conn. 51, 65–66, 43 A.3d 629 (2012).
In order to convict the defendant of manslaughter in
the first degree with a firearm as an accessory in viola-
tion of §§ 53a-8 (a) and 53a-55a (a), ‘‘the state must
prove that the defendant, acting with the intent to cause
serious physical injury to another person, intentionally
aided a principal offender in causing the death of such
person or of a third person, and that the principal, in
committing the act, used, carried or threatened to use
a firearm.’’ State v. Gonzalez, 300 Conn. 490, 496, 15
A.3d 1049 (2011). The state must prove ‘‘a dual intent
. . . namely, that the defendant intended to inflict seri-
ous physical injury and that he intended to aid the
principal in doing so. . . . When a defendant is charged
with a violation of § 53a-55a as an accessory, the state
need not prove that the defendant intended the use,
carrying or threatened use of the firearm. . . . Proof
of the intent element is satisfied if the principal in fact
used the firearm.’’ (Citations omitted; internal quotation
marks omitted.) Id., 510.
Further, consistent with well established ‘‘underlying
principles of accessorial liability,’’ the state must prove
that the defendant acted as an accessory by soliciting,
requesting, commanding, importuning or intentionally
aiding Wilson in causing the victim’s death. State v.
Foster, 202 Conn. 520, 531, 522 A.2d 277 (1987); see
also State v. Gonzalez, supra, 300 Conn. 496. This is
because accessorial ‘‘liability is designed to punish one
who intentionally aids another in the commission of a
crime and not one whose innocent acts in fact aid one
who commits an offense. . . . Mere presence as an
inactive companion, passive acquiescence, or the doing
of innocent acts which may in fact aid the one who
commits the crime must be distinguished from the crim-
inal intent and community of unlawful purpose shared
by one who knowingly and wilfully assists the perpetra-
tor of the offense in the acts which prepare for, facilitate
or consummate it.’’ (Citation omitted; internal quotation
marks omitted.) State v. Foster, supra, 531.
Having reviewed the record in the present case, we
agree with the defendant, and conclude that the Appel-
late Court properly determined that the evidence did
not establish beyond a reasonable doubt that he acted
as Wilson’s accessory. First, as the state conceded at
oral argument before this court, there is no evidence of
words or other conduct that amounted to the defendant
commanding, directing, soliciting, requesting, or
importuning Wilson to shoot the victim—including dur-
ing their struggle.18 Second, and consistent with the
state’s theory at trial that the gun had dropped to the
ground during the scuffle between the defendant and
the victim; see footnote 5 of this opinion; the record
simply lacks evidence to support inferences that the
defendant had intentionally aided Wilson by in some
way deliberately putting the gun in his hand during that
struggle, or otherwise assisting him in the commission
of the shooting or the flight therefrom. To the contrary,
the evidence suggests that the defendant’s presence
had the effect of impeding Wilson’s flight, insofar as
Wilson dragged the defendant out and used him as a
human shield in the process. Thus, although the defen-
dant was by no means an innocent bystander in the
chain of events that lead to the victim’s death, the evi-
dence is nevertheless insufficient to prove his guilt
beyond a reasonable doubt under an accessory theory
of criminal liability.
The state, however, reiterates its trial theory; see
footnote 5 of this opinion; that the jury reasonably could
have inferred that the defendant acted intentionally to
aid Wilson given the correlation between drug dealing
and guns, the fact that the defendant introduced the
gun into the situation, and that it was apparent that
they were ‘‘operating together to sell drugs’’ at Roodner
Court. We disagree. In our view, the state’s broadly
conceived ‘‘cahoots’’ argument is a belated attempt to
substitute conspiratorial liability under the Pinkerton
doctrine for the proof necessary to establish guilt as
an accessory. We recently explained the critical differ-
ences between these concepts in State v. Bennett,
supra, 307 Conn. 764, noting that, because ‘‘the present
case involves sufficiency of proof to assign criminal
responsibility to the defendant for a fatal injury inflicted
by another, it is useful to be mindful of the substantive
differences between the three theories under which
such vicarious liability may arise: felony murder under
[General Statutes] § 53a-54c; Pinkerton liability; and
accessorial liability under § 53a-8.’’ (Footnote omitted.)
After explaining felony murder liability under § 53a-
54c,19 we noted that, under ‘‘the Pinkerton doctrine
. . . a defendant may not be convicted of murder unless
one of his criminal associates, acting foreseeably and
in furtherance of the conspiracy, caused the victim’s
death with the intent to do so. . . . Thus . . . under
Pinkerton, a coconspirator’s intent to kill may be
imputed to a defendant who does not share that intent
. . . . The rationale for liability under this theory is
that [w]hen the defendant has played a necessary part
in setting in motion a discrete course of criminal con-
duct . . . he cannot reasonably complain that it is
unfair to hold him vicariously liable . . . for the natural
and probable results of that conduct that, although he
did not intend, he should have foreseen. . . .
‘‘[T]o be guilty as an accessory one must share the
criminal intent and community of unlawful purpose
with the perpetrator of the crime and one must know-
ingly and wilfully assist the perpetrator in the acts which
prepare for, facilitate or consummate it. . . . Thus,
[u]nlike coconspirator liability under Pinkerton . . .
accessorial liability pursuant to § 53a-8 requires the
defendant to have the specific mental state required for
the commission of the substantive crime. . . . [A]cces-
sorial liability is not a distinct crime, but only an alterna-
tive means by which a substantive crime may be
committed . . . . Consequently, to establish a per-
son’s culpability as an accessory to a particular offense,
the state must prove that the accessory, like the princi-
pal, had committed each and every element of the
offense. . . . Each such element must be proved
beyond a reasonable doubt.’’ (Citations omitted; empha-
sis omitted; footnote omitted; internal quotation marks
omitted.) Id., 764–65.
Observing the differences between these theories, we
concluded in Bennett that, with respect to accessory
liability, there was insufficient evidence that the defen-
dant in that case intended to kill the occupant of an
apartment during a home invasion to steal drugs and/
or cash when there was no evidence that the defendant
knew the victim or what the defendant had said or
done during a brief conversation prior to the principal
shooting the victim; the defendant also had carried a
loaded gun to the scene, and thereafter continued the
robbery by threatening the victim’s girlfriend at gun-
point while demanding to know where the victim kept
money and drugs.20 See id., 766–68. In so concluding,
we observed that ‘‘the evidence in the present case
would have made a strong case for murder under a
theory of Pinkerton liability, but falls short of the requi-
site proof for accessorial liability. Therefore, because
the state did not advance a theory of liability under the
Pinkerton doctrine, and the state did not prove beyond
a reasonable doubt that the defendant intended to cause
[the victim’s] death, the defendant’s conviction for mur-
der as an accessory cannot stand.’’ Id., 774; see also
id., 770 (‘‘[a]lthough it is reasonable to infer from the
defendant’s entry into [the] bedroom [of the victim’s
girlfriend] with a loaded gun immediately following the
shooting, simultaneously with [the principal], that the
defendant was in close proximity when [the principal]
shot [the victim] and that he was in possession of a
loaded gun at that time, it would be sheer speculation
to conclude that the defendant threatened [the victim]
with the gun or engaged in any act preceding the shoot-
ing that aided, encouraged or facilitated the shooting’’
[emphasis omitted]).
In the present case, as in Bennett, the state did not
undertake to plead and prove the existence of a conspir-
acy between the defendant and Wilson—including one
related to the sale of drugs in Roodner Court—much
less that the victim’s death was the natural and probable
result of any such conduct. Thus, although the state
relies on the concept of ‘‘cahoots’’ to sustain the defen-
dant’s conviction arising from his role in the victim’s
death, absent proper pleading and proof of conspiracy
in accordance with the Pinkerton doctrine, such allega-
tions or evidence nevertheless do not excuse the state
from having to prove that the defendant intentionally
aided Wilson with respect to the specific act that caused
the victim’s death. See State v. Gonzalez, supra, 300
Conn. 510 n.21 (‘‘[t]he state still must prove that the
defendant committed or helped to commit all elements
of the underlying substantive crime for liability to attach
under § 53a-8; in contrast, under the Pinkerton doctrine,
the state is relieved of that burden, but instead must
prove the existence and scope of a criminal conspiracy
in order for liability to attach’’); see also State v. Bennett,
supra, 307 Conn. 771 (‘‘although a foreseeable risk of
death to a victim in the course of a crime is a basis on
which felony murder and Pinkerton liability may be
established, foreseeability is not commensurate with
the conscious objective to cause death required for
accessorial liability’’).
Moreover, the state’s failure to plead and prove the
defendant’s liability under the Pinkerton doctrine
undermines its reliance on this court’s decisions in State
v. Cooper, 227 Conn. 417, 426 n.5, 630 A.2d 1043 (1993),
and State v. Delossantos, 211 Conn. 258, 281, 559 A.2d
164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L.
Ed. 2d 142 (1989), which note the well established corre-
lation between drug dealing and firearms, to support
the reasonableness of the inferences drawn by the jury.
First, the state’s reliance on these cases is misplaced
because neither utilizes the correlation between drug
dealing and firearms by itself to establish an element
of a crime. See State v. Cooper, supra, 425–26 and 426
n.5 (trial court properly admitted prior misconduct evi-
dence of drug dealing by defendant in order to prove
that victim was shot because he had interfered with
defendant’s narcotics sale, given ‘‘the predilection of
those selling drugs outside familiar territory to carry
weapons to protect themselves and their merchan-
dise’’);21 State v. Delossantos, supra, 280–81 (presence
of loaded handgun owned by defendant, without permit,
in car that he was driving relevant to prove his knowing
possession of narcotics present in that car). Second,
and consistent with Bennett, the defendant’s possession
of the loaded gun in proximity to Wilson and his drugs,
in addition to his possible role as a lookout during
Wilson’s attempt to consummate the drug transaction
with Jackson, could well have been probative circum-
stantial evidence of the existence of a conspiracy
between them to sell drugs at Roodner Court, of which
the death of an interfering party could be a foreseeable,
natural, and probable consequence. Because the state
did not, however, prosecute the defendant under a Pin-
kerton theory of criminal liability, the defendant’s pos-
session of a gun in conjunction with Wilson’s narcotics
activities does not, by itself, support an inference of
intentional assistance in Wilson’s commission of the
homicide in the present case. Cf. State v. Abreu, 106
Conn. App. 278, 286, 941 A.2d 974 (concluding that
‘‘well established correlation between drug dealing and
firearms’’ is ‘‘insufficient to substantiate a belief that [a
drug dealer] is armed or dangerous at the time he is
killed,’’ and noting lack of evidence that ‘‘the victim
was armed when the defendant shot him or even that
the defendant had ever seen or known the victim to be
in possession of a firearm’’), cert. denied, 286 Conn.
919, 946 A.2d 1249 (2008).
Finally, like the Appellate Court, we also disagree
with the state’s reliance on, inter alia, State v. Turner,
supra, 252 Conn. 714, in support of its contention that
sufficient evidence of the defendant’s conduct as an
accessory existed because the jury ‘‘had before it cir-
cumstantial evidence . . . from which it could infer
that all three shots were fired from one handgun and
that only one handgun was used to shoot the victim,
i.e., the handgun that the victim introduced into the
dispute.’’ See State v. Gonzalez, supra, 135 Conn. App.
111–12. Turner is distinguishable because the defen-
dant in that case apparently provided the murder
weapon to the principal in an exchange that occurred
well in advance of the shooting therein. See State v.
Turner, supra, 749–50. In comparison, the record in the
present case contains no evidence that the defendant
did anything before or during the fracas that occurred
prior to the shooting to give the gun to Wilson. More-
over, Turner featured far more evidence of acts by the
defendant therein that constituted the actions of an
accessory, including driving the getaway car and
‘‘ ‘dancing around’ ’’ across the street from where the
victim and his friends stood in order to distract them
from the approaching shooter. See id., 749; see also
State v. Foster, supra, 202 Conn. 535–36 (sufficient evi-
dence that defendant was accessory to criminally negli-
gent homicide when he gave knife to principal, who
had accompanied him in locating victim, with direction
to use it to keep victim from escaping); State v. Harris,
49 Conn. App. 121, 132, 714 A.2d 12 (1998) (sufficient
evidence that defendant was accessory to manslaughter
in first degree when he commanded gang members to
shoot competing drug dealer in buttocks to scare him,
supplied gun, helped locate victim, and helped shooter
flee and destroy evidence). The evidentiary vacuum that
exists in the present case with respect to the defendant’s
role in placing the gun in Wilson’s hands or otherwise
assisting him in the commission of the homicide stands
in sharp contrast, then, to the factual records before
this court and the Appellate Court in Turner, Foster, and
Harris.22 Accordingly, we conclude that the Appellate
Court properly determined that the defendant’s convic-
tion for manslaughter in the first degree with a firearm
as an accessory was not supported by evidence suffi-
cient to prove his guilt beyond a reasonable doubt.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
General Statutes § 53a-8 (a) provides: ‘‘A person, acting with the mental
state required for commission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person to engage in conduct
which constitutes an offense shall be criminally liable for such conduct and
may be prosecuted and punished as if he were the principal offender.’’
2
General Statutes § 53a-55a (a) provides: ‘‘A person is guilty of manslaugh-
ter in the first degree with a firearm when he commits manslaughter in the
first degree as provided in section 53a-55, and in the commission of such
offense he uses, or is armed with and threatens the use of or displays or
represents by his words or conduct that he possesses a pistol, revolver,
shotgun, machine gun, rifle or other firearm. No person shall be found guilty
of manslaughter in the first degree and manslaughter in the first degree
with a firearm upon the same transaction but such person may be charged
and prosecuted for both such offenses upon the same information.’’
General Statutes § 53a-55, in turn, provides in relevant part: ‘‘(a) A person
is guilty of manslaughter in the first degree when: (1) With intent to cause
serious physical injury to another person, he causes the death of such person
or of a third person . . . .’’
3
We granted the state’s petition for certification to appeal limited to
the following issue: ‘‘Did the Appellate Court properly determine that the
evidence was insufficient to support the jury’s verdict that the defendant
was guilty, as an accessory, of manslaughter in the first degree with a
firearm?’’ State v. Gonzalez, 305 Conn. 915, 916, 46 A.3d 171 (2012).
4
General Statutes § 53-202k provides: ‘‘Any person who commits any class
A, B or C felony and in the commission of such felony uses, or is armed
with and threatens the use of, or displays, or represents by his words or
conduct that he possesses any firearm, as defined in section 53a-3, except
an assault weapon, as defined in section 53-202a, shall be imprisoned for a
term of five years, which shall not be suspended or reduced and shall
be in addition and consecutive to any term of imprisonment imposed for
conviction of such felony.’’
5
Three cartridge casings and one bullet were recovered from the scene.
Gerard Petillo, a forensic science examiner with the firearm and tool mark
section of the state forensics laboratory, testified he had examined bullets
and cartridge casings recovered from the scene and later from the victim’s
body, and determined that: (1) all of the casings were fired by the same
gun, which was a semiautomatic firearm manufactured by Glock; and (2) the
bullets had been fired by a .40 caliber Glock, but it could not be determined
whether they had come from the same gun.
We note that the state’s theory of the case, as demonstrated by its closing
arguments, was that the defendant’s intent to cause the victim serious physi-
cal injury was proven by: (1) the altercation between the defendant and the
victim; and (2) the fact that the defendant pointed a loaded gun at the victim.
With respect to proving that the defendant intentionally aided Wilson in
killing the victim, the state relied on inferences from the facts that: (1)
Petillo’s testimony demonstrated that a single gun had been used, which
had been introduced into the altercation by the defendant; and (2) Wilson
and the defendant were working together to sell drugs that night. Further,
the state posited that the gun discharged during the struggle between the
victim and the defendant, with one bullet making a second loud noise when
it struck the metal apartment door. The gun was then dropped on the ground
during the altercation, at which point Wilson picked it up and fired two
shots at the victim from close range.
6
Vidal Gonez, a Norwalk police officer, responded to a radio dispatch,
transmitted at 11:13 p.m., reporting shots fired at Roodner Court. Upon his
arrival, he saw one officer securing the doorway to building thirteen, and
another performing CPR on the victim.
7
Wilson was ultimately convicted of murder in violation of General Stat-
utes § 53a-54a for his role in causing the victim’s death. See State v. Wilson,
308 Conn. 412, 417, 64 A.3d 91 (2013).
8
Although § 53a-217 has been the subject of recent amendments; see, e.g.,
Public Acts 2013, No. 13-3, § 44; those amendments have no bearing on the
merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute.
9
After the close of the state’s case-in-chief, the defendant moved for a
judgment of acquittal on the first and fourth counts of the information,
namely manslaughter in the first degree and the associated felony enhance-
ment. The trial court denied the motion for acquittal, agreeing with the state
that there was sufficient evidence to send the case to the jury because: (1)
the necessary intent, namely to cause serious physical injury, could be found
in the defendant’s action of pointing the firearm at the victim; and (2) with
respect to whether the defendant had acted as Wilson’s accessory, ‘‘[i]t’s
clear that [the defendant and] Wilson were together engaged in some illicit
activity in the building there.’’
The defendant renewed this motion after presenting his own case, relying
on his introduction into evidence of prior inconsistent statements by Jack-
son, which the defendant argued rendered Jackson’s testimony incredible.
The trial court denied the defendant’s second motion as well.
10
A specific breakdown of the defendant’s total effective sentence is set
forth in the Appellate Court opinion. See State v. Gonzalez, supra, 135 Conn.
App. 105–106.
11
The defendant did not challenge his firearms convictions arising from
his violations of §§ 29-35 (a) and 53a-217. See State v. Gonzalez, supra, 135
Conn. App. 102 n.1.
12
The defendant also claimed that: (1) prosecutorial impropriety during
closing arguments deprived him of a fair trial; and (2) there was insufficient
evidence that he intended to cause serious physical injury to the victim.
The Appellate Court did not reach these claims because of its conclusion
that there was insufficient evidence that he had acted as an accessory. See
State v. Gonzalez, supra, 135 Conn. App. 103 nn.4 and 5.
13
The Appellate Court further concluded that ‘‘the evidence does not
support a reasonable inference that the defendant aided Wilson merely by
introducing the weapon into the situation.’’ State v. Gonzalez, supra, 135
Conn. App. 111. The court disagreed with the state’s reliance on State v.
Turner, 252 Conn. 714, 751 A.2d 372 (2000), deeming Turner ‘‘inapposite’’
based on its facts, and noting that, although the ‘‘defendant pointed a gun
at the victim and then struggled for control of the weapon, this conduct
alone does not support a reasonable inference that he, by so acting, intention-
ally aided the principal in killing the victim.’’ State v. Gonzalez, supra, 111;
see also id., 112 (‘‘There is no evidence, however, that would support a
reasonable inference that the defendant gave the weapon to Wilson. Unlike
in Turner, where the defendant gave the principal the weapon in advance
of the crime, in [the present] case the most the evidence suggests is that
Wilson acquired the weapon in the midst of the struggle between the victim
and the defendant.’’).
14
The Appellate Court disagreed with the state’s argument that: ‘‘Wilson
and the defendant were associated in the drug trade, that the victim was
interfering with a drug transaction and that the defendant aided Wilson in
shooting the victim by ‘providing the weapon and introducing it into the
situation.’ ’’ State v. Gonzalez, supra, 135 Conn. App. 109. The court observed
that the ‘‘only circumstantial evidence suggesting that the defendant was
associated in the drug trade with Wilson was that they were together when
Wilson told Jackson that he would sell him drugs and that the defendant
possessed a gun and pointed it at the victim,’’ and emphasized that, as a
matter of law, the ‘‘defendant’s presence near Wilson at the time Jackson
inquired about purchasing drugs is insufficient to establish his involvement
in the transaction.’’ Id., 109–10, citing, State v. Fair, 118 Conn. App. 357,
362, 983 A.2d 63 (2009).
15
Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S. Ct. 1180, 90 L.
Ed. 1489 (1946). We note that ‘‘[t]his court first recognized the theory of
liability set forth in Pinkerton as a matter of our state’s law in State v.
Walton, 227 Conn. 32, 40–54, 630 A.2d 990 (1993) . . . .’’ (Citation omitted.)
State v. Bennett, supra, 307 Conn. 764 n.1.
16
Specifically, the defendant points us to Flowers v. Commonwealth, 278
Ky. 518, 128 S.W.2d 961 (App. 1939), Combs v. Commonwealth, 224 Ky. 653,
6 S.W.2d 1082 (1928), State v. Rector, 126 Mo. 328, 23 S.W. 1074 (1894), and
Kemp v. Commonwealth, 80 Va. 443 (1885).
17
We note that the defendant renews, as an alternate ground for affirming
the judgment of the Appellate Court; see Practice Book § 84-11 (c); his
claim that there was insufficient evidence that he intended to cause serious
physical injury to the victim, as is required by § 53a-55a (a). See footnote
12 of this opinion. Like the Appellate Court, we need not reach this claim
because of our conclusion that there was insufficient evidence to prove that
the defendant acted as an accessory under § 53a-8 (a).
18
We note that, at oral argument before this court, some of the discussion
with respect to whether sufficient evidence existed to prove the intentional
act element of § 53a-8, was colored by whether there was sufficient evidence
as to the defendant’s intent to cause the victim serious physical injury under
§§ 53a-55a and 53a-55, which is raised as an alternate ground for affirming
the judgment of the Appellate Court. See footnotes 12 and 17 of this opinion.
Although our analysis herein is confined to the proof of intentional aiding
required by § 53a-8, we acknowledge that there often is substantial eviden-
tiary overlap with respect to the proof of these different elements. See, e.g.,
State v. Bennett, supra, 307 Conn. 768–69 (The court noted that that intent
to kill could reasonably be inferred in cases wherein ‘‘the defendant had
engaged in some act to prepare for, aid, encourage, facilitate or consummate
the murder . . . . In some cases, the defendant participated in the killing
by inflicting, or attempting to inflict, harm on the victim while the principal
inflicted the fatal injury, or the evidence was unclear as to whether the
defendant actually inflicted the fatal injury. . . . In cases lacking such proof,
the defendant otherwise actively participated in the murder through acts
beneficial to the principal such as identifying the victim, taking the principal
to the victim, distracting the victim, acting as a lookout to prevent interrup-
tion to the murder or facilitating the principal’s escape. . . . Oftentimes,
evidence of a motive to kill had been established.’’ [Citations omitted; foot-
note omitted.]).
19
We explained that the ‘‘felony murder statute reflects a legislative deter-
mination that certain crimes, such as robbery, create a foreseeable risk of
death to a victim of, or bystander to, the crime and, accordingly, imposes
criminal liability not only on the person who caused the death, but also on
any other participant to the underlying felony. . . . [A] defendant may be
convicted of felony murder even if neither he nor his confederates had any
intent to kill . . . .’’ (Citation omitted; emphasis omitted; internal quotation
marks omitted.) State v. Bennett, supra, 307 Conn. 764.
20
We further noted that: ‘‘There also is no evidence to support an inference
that the defendant aided or encouraged [the principal] with respect to the
fatal act or that the defendant threatened [the victim] directly in any manner.
Although the defendant threatened [the victim’s girlfriend] by placing a gun
to her head, which conveyed an implied threat to kill her if she did not
cooperate, there is no evidence from which we can infer that he intended
to follow through on that threat. The defendant never discharged his gun,
even when encountering another witness to the crime, [the victim’s mother],
while fleeing the scene.’’ (Footnote omitted.) State v. Bennett, supra, 307
Conn. 773–74.
21
We further note that the two decisions of the United States Court of
Appeals for the Eighth Circuit cited in State v. Cooper, supra, 227 Conn.
426 n.5, for the proposition that ‘‘[t]here is a well established correlation
between drug dealing and firearms,’’ similarly do not use that correlation
by itself to establish a fact critical to an offense’s act element. See United
States v. Simon, 767 F.2d 524, 526–27 (8th Cir. 1985) (admission of narcotics-
dealing activities relevant to establish that defendant illegally possessed
firearm); United States v. Milham, 590 F.2d 717, 721 (8th Cir. 1979) (evidence
of gun seized from defendant’s van relevant to impeach his testimony that
he was traveling for legitimate business purposes, not narcotics trafficking).
22
We note that neither the parties’ briefs nor our independent research
has revealed a case, from Connecticut or elsewhere, closely on point with
the facts adduced in the record in the present case. We observe, however,
that the defendant accurately cites several sister state cases compiled in
an annotation from American Law Reports; annot., 12 A.L.R. 275, § 7 (1921
and Cum. Supp. 2013); as illustrative of the nature of the proof required to
sustain a conviction under an accessory theory of liability. Compare Combs
v. Commonwealth, 224 Ky. 653, 658, 6 S.W.2d 1082 (1928) (insufficient
evidence of aiding and abetting when defendant and his principal were
fighting with victim and his friends, one of whom dropped pistol, and princi-
pal picked up pistol and shot victim), and State v. Rector, 126 Mo. 328, 341,
23 S.W. 1074 (1894) (insufficient evidence of aiding and abetting when
principal grabbed garden hoe from defendant’s hands, brought for scraping
purposes, and struck victim with it during fight that took place while cleaning
shanty), and Kemp v. Commonwealth, 80 Va. 443, 452–53 (1885) (insufficient
evidence of aiding and abetting during street fight when principal struck
victim with axe that was on ground, and defendant ‘‘had no knowledge that
the axe was there, no knowledge of the murderous use of such an instrument
by [principal] until after the fatal blow was struck, and in no way aided in
or assented to its use’’), with Flowers v. Commonwealth, 278 Ky. 518, 519–20,
128 S.W.2d 961 (App. 1939) (sufficient evidence of aiding and abetting murder
when principal took gun from hip pocket of defendant and shot victim
following argument, given that jury could have credited evidence that defen-
dant and principal had conversed shortly before argument, defendant had
shown principal gun in his pocket, and said to principal ‘‘ ‘[m]ake him give
‘em up’ ’’).
We also find instructive the nuanced analysis by the United States Court
of Appeals for the Ninth Circuit in United States v. Andrews, 75 F.3d 552
(9th Cir.), cert. denied, 517 U.S. 1239, 116 S. Ct. 1890, 135 L. Ed. 2d 183
(1996), a case located by our independent research with facts more incrimi-
nating than the present case, yet concluding that there was insufficient
evidence of aiding and abetting. By way of illustration, armed with rifles
supplied by their father, the defendant in Andrews had gone with his sister,
in a vehicle driven by a friend, to the scene of the altercation, intending to
‘‘ ‘get’ ’’ a man who had punched the sister in an earlier altercation by
‘‘ ‘trashing his car.’ ’’ Id., 554. Once at the altercation, the defendant shot
and killed the man as he stepped out of his truck, leading to the defendant’s
conviction for murder as a principal. Id. The defendant’s sister then fired
her gun into a parked car that was present at the scene, striking its occupants
and leading to the defendant’s convictions for an additional count of murder
and attempted voluntary manslaughter, both under an accessory theory. Id.
The Ninth Circuit concluded that there was insufficient evidence to support
the defendant’s convictions of aiding and abetting murder and attempted
manslaughter, both based on an accessory theory of criminal liability, arising
from his sister’s act shooting into the occupied parked car. Id., 556. The
court observed that, with respect to those counts, the defendant ‘‘did not
give [his sister] the shotgun, drive her to the scene, encourage her to shoot,
or in any other obvious way assist her in shooting the victims in the car’’;
id., 555; despite the fact that he was armed, accompanied her to the scene of
the crime, and was present there, because ‘‘any agreement or understanding
between [the sister and the defendant] involved only ‘getting’ [the man who
had punched her] and ‘trashing’ his car.’’ Id., 556.