State v. Foster

The defendant, Michael Foster, was convicted in a jury trial of kidnapping in the second degree in violation of General Statutes § 53a-94, assault in the third degree in violation of General Statutes § 53a-61, and being an accessory to criminally negligent homicide in violation of General Statutes §§ 53a-8 and 53a-58. He received an effective sentence of ten years, suspended after six years and five years probation. He claims on appeal that the trial court erred: (1) in instructing the jury on the crime of being an accessory to criminally negligent homicide and in denying his posttrial motions for judgment of acquittal and in arrest of judgment; (2) in denying his motion for judgment of acquittal on the third count because there was insufficient evidence to support a conviction; and (3) in instructing the jury on the essential elements of kidnapping in the second degree. We find no error.

The jury could reasonably have found the following facts. In June, 1982, the defendant was living with his girlfriend and their child in an apartment near the Martin Luther King School in Hartford. At approximately 7:30 p.m. in the evening of June 16,1982, while walking near the school, the defendant’s girlfriend was robbed and raped by a young black male who held a straight-edged razor to her throat. During the one half hour encounter, she observed her attacker’s features and later that night described him and the clothes *522he was wearing to the police. She also described the assailant, with specific identifiable features, to the defendant.

The defendant, who was “bitter” about the attack, purposely went looking for his girlfriend’s attacker. On June 22, 1982, the defendant and a friend, Otha Cannon, after visiting with the defendant’s girlfriend for a short period of time, went walking in the vicinity where the rape and robbery had occurred. Near the Martin Luther King School, the defendant saw a man he thought matched the description of the assailant. After telling Cannon “[t]his is the guy who raped my lady,” the defendant and Cannon confronted the suspected rapist, later identified as William Jack Middleton, in an alleyway next to the school. Upon being approached, Middleton became frightened and denied any involvement in the robbery or rape. He attempted to flee and a fight ensued; the defendant beat Middleton about the face, eye, chest and head with his fist and a blunt instrument, knocking him to the ground. The defendant, desiring to bring his girlfriend to the scene to make an identification, told Middleton to “wait here” while he left to get her. Although Middleton agreed to wait, the defendant, suspecting that he might flee, gave a knife to Cannon and told him to stay with Middleton to prevent his escape. Thereafter, while waiting for the defendant to return, Middleton, as he was reaching for something in his pocket, apparently charged at Cannon. As Middleton ran toward him, Cannon held out the knife that the defendant had given him and fatally stabbed Middleton. The victim had a straight-edged razor in his pocket which was later identified by the defendant’s girlfriend as the one wielded by her assailant during the rape incident.

The defendant was charged, by an information, with one count of second degree kidnapping, one count of second degree assault, one count of first degree man*523slaughter, one count of carrying a dangerous weapon, one count of hindering prosecution in the first degree, one count of being an accessory to second degree kidnapping, one count of being an accessory to second degree assault, and one count of being an accessory to first degree manslaughter.

Prior to the beginning of the state’s case, the trial court granted the defendant’s motion to dismiss the count of hindering prosecution in the first degree and a substituted count of hindering prosecution in the second degree. Subsequently, at the close of the state’s case-in-chief, the defendant moved for a judgment of acquittal, which the trial court granted as to the count of carrying a dangerous weapon. The state then filed a substitute amended information charging the defendant with kidnapping in the second degree in violation of General Statutes § 53a-94 (a),1 assault in the second degree in violation of General Statutes § 53a-60 (a) (2),2 manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3),3 being an accessory to kidnapping in the second degree in violation of General Statutes §§ 53a-84 and 53a-94 (a), being an accessory to *524assault in the second degree in violation of General Statutes §§ 53a-8 and 53a-60 (a) (2), and being an accessory to manslaughter in the first degree in violation of General Statutes §§ 53a-8 and 53a-55 (a) (3).

The court instructed the jury on each count in the substitute amended information. In its charge on the count of manslaughter in the first degree, the court instructed the jury on the lesser included offenses of manslaughter in the second degree' and criminally negligent homicide.5 The court further instructed the jury as to the liability of an accessory.

During its deliberations, the jury requested that the court “explain accessory to manslaughter and lesser degrees.” The court then restated the elements of manslaughter in the first and second degrees and the elements of criminally negligent homicide, and accessorial liability. The defendant subsequently took an exception to the court’s charge. The jury later asked the court again to explain accessory to manslaughter, at which time the judge reinstructed the jury as to the essential elements of the charge, including the lesser included offenses. The defendant again duly excepted.

The jury found the defendant guilty of kidnapping in the second degree, assault in the third degree in violation of General Statutes § 53a-61,6 as a lesser included *525offense of second degree assault, and being an accessory to criminally negligent homicide in violation of General Statutes §§ 53a-8 and 53a-58,7 as a lesser included offense of being an accessory to first degree manslaughter. Thereafter, the defendant filed motions for acquittal and in arrest of judgment,8 claiming, inter alia, that there was no such crime as being an accessory to criminally negligent homicide. The trial court denied both motions. The defendant appealed.

I

The defendant first claims that the trial court erred (1) in instructing the jury as to the crime of being an accessory to criminally negligent homicide, and (2) in denying his posttrial motions for judgment of acquittal and in arrest of judgment. We disagree.

General Statutes § 53a-8 provides in relevant part that “[a] person, acting with the mental state required for the commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . as if he were the principal offender.” We have previously stated that a conviction under § 53a-8 requires proof of a dual intent, i.e., “that the accessory have the intent to aid the principal and that in so *526aiding he intend to commit the offense with which he is charged.” (Emphasis in original.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979); see State v. Cramp, 201 Conn. 489, 495, 518 A.2d 378 (1986); State v. Fleming, 198 Conn. 255, 271, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Nardini, 187 Conn. 513, 531, 447 A.2d 396 (1982).

Citing this “dual intent” requirement, and relying on State v. Almeda, 189 Conn. 303, 455 A.2d 1326 (1983),9 and State v. Beccia, 199 Conn. 1, 505 A.2d 683 (1986),10 cases which held that persons cannot attempt *527or conspire to commit an offense that requires an unintended result, the defendant argues that a person cannot be convicted as an accessory to criminally negligent homicide. He reasons that because accessorial liability requires an accused, in aiding a principal, to “intend to commit the offense with which he is charged” and because criminally negligent homicide requires that an unintended death occur, the crime of being an accessory to criminally negligent homicide is a logical impossibility in that it would require a defendant, in aiding another, to intend to commit a crime in which an unintended result occurs.

We find the defendant’s argument unpersuasive. The defendant’s reliance upon Almeda and Beccia, and the concept of “dual intent,” is misplaced. Attempt and conspiratorial liability differ substantially from the liability imposed on an accessory. First, both attempt and conspiracy are offenses in and of themselves, while accessorial liability is not. Attempt is a distinct, inchoate offense and a defendant may be punished for attempting to commit a substantive offense without actually committing the crime. General Statutes §§ 53a-49, 53a-51; see State v. Trent, 182 Conn. 595, 600, 438 A.2d 796 (1981). Likewise, conspiracy has been recognized as being a crime distinct from the commission of the substantive offense. See General Statutes § 53a-48. “We have repeatedly held that conspiracy is a common-law crime and punishable as such under the statutes relating to the punishment of high crimes and misdemeanors. The commission of the substantive offense and a conspiracy to commit it are separate and distinct crimes. . . . The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from all other crimes.” State v. Johnson, 162 Conn. 215, 218-19, 292 A.2d 903 (1972); see State v. Crump, supra, 497; State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985).

*528There is, however, no such crime as “being an accessory.” State v. Edwards, 201 Conn. 125, 130, 513 A.2d 669 (1986); State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985); State v. Baker, supra. 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.” State v. Baker, supra; State v. Edwards, supra, 131.

Second, the intent required for attempt or conspiratorial liability is distinguishable from the requisite intent for accessorial liability. A careful examination of the relevant statutes reveals the distinction. Under § 53a-49 (a), “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. ” (Emphasis added.) Similarly, under § 53a-48 (a), “[a] person is guilty of conspiracy when, with the 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 . . . .” (Emphasis added.)

Intentional conduct is defined as conduct “with respect to a result or to conduct described by a statute defining an offense when [a person’s] conscious objective is to cause such a result or to engage in such conduct.” (Emphasis added.) General Statutes § 53a-3 (11). Thus, to be guilty of attempt, a defendant’s conscious objective must be to cause the result which would constitute the substantive crime. A person cannot attempt to commit a crime which requires that an unintended *529result occur, such as involuntary manslaughter, because it is logically impossible for one to intend to bring about an unintended result.11 State v. Almeda, supra. Similarly, to be guilty of conspiracy, the defendant, upon entering an agreement, must intend that his conduct achieve the requisite criminal result. When the substantive crime requires an unintended result, a person cannot conspire to commit that crime because it is logically impossible to agree to achieve a specific result unintentionally.12 State v. Beccia, supra.

Contrary to the defendant’s assertions, and unlike attempt or conspiratorial liability, accessorial liability does not require that a defendant act with the conscious objective to cause the result described by a statute. Although we have stated that the defendant, in intentionally aiding another, must have the intent to commit the substantive offense; State v. Crump, supra; State v. Fleming, supra; State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983); State v. Nardini, supra; this language must be read in context. All the cases which speak of this “dual intent” involve crimes that require a defendant to act with a specific intent to com*530mit the crime. See State v. Crump, supra, 495 (accessory to robbery in the second degree requiring the defendant to have the intent to commit larceny, i.e., the intent to deprive another of property); State v. Fleming, supra, 271 (accessory to felony murder, underlying felony being robbery, requiring defendant to have intent to commit larceny); State v. Vincent, 194 Conn. 198, 206-207, 479 A.2d 237 (1984) (accessory to robbery in the third degree, requiring intent to deprive another of property); State v. Haddad, supra (accessory to burglary requiring specific intent to commit a crime upon entering a building); State v. Nardini, supra, 531 (accessory to arson requiring specific intent to damage or destroy building); State v. Harrison, supra, 694, 698 (accessory to attempted robbery and accessory to larceny). Because the substantive crime with which the person was charged in those cases required that the accessory specifically intend to act or bring about a result, it is logical to state that the accessory, in aiding another, must have “intend[ed] to commit the offense with which he is charged.”

Section 53a-8, however, is not limited to cases where the substantive crime requires the specific intent to bring about a result.13 General Statutes § 53a-8 merely *531requires that a defendant have the mental state required for the commission of a crime while intentionally aiding another. “When the commission of an offense . . . or some element of an offense, requires a particular mental state, such mental state is ordinarily designated ... by the use of the terms ‘intentionally,’ ‘knowingly,’ ‘recklessly,’ or ‘criminal negligence’ . . . .” General Statutes § 53a-5. Accordingly, an accessory may be liable in aiding another if he acts intentionally, knowingly, recklessly or with criminal negligence toward the result, depending on the mental state required by the substantive crime. When a crime requires that a person act with criminal negligence, an accessory is liable if he acts “with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” General Statutes § 53a-3 (14).

This interpretation is consistent with the underlying principles of accessorial liability. Such 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. State v. McCalpine, 190 Conn. 822, 832, 463 A.2d 545 (1983). “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 criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate or consummate it.” State *532v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967); see State v. Crump, supra, 494; State v. Vincent, supra, 207. Thus, accessorial liability is predicated upon the actor’s state of mind at the time of his actions, and whether that state of mind is commensurate to the state of mind required for the commission of the offense. If a person, in intentionally aiding another, acts with the mental culpability required for the commission of a crime—be it “intentional” or “criminally negligent”— he is liable for the commission of that crime.

Moreover, because accessorial liability is not a distinct crime, but only an alternative means by which a substantive crime may be committed, it would be illogical to impose liability on the perpetrator of the crime, while precluding liability for an accessory, even though both possess the mental state required for the commission of the crime. Connecticut “long ago adopted the rule that there is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility. See State v. Gargano, 99 Conn. 103, 109, 121 A. 657 (1923); State v. Hamlin, 47 Conn. 95, 118 (1879); General Statutes (1875 Rev.) p. 545. The modern approach ‘is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. Such is the view taken in the Model Penal Code, which provides that a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he solicits the other person to commit it, or aids or agrees or attempts to aid the other person in planning or committing it, or (having a legal duty to prevent the crime) fails to make the proper effort to prevent it.’ LaFave & Scott, Criminal Law (1972) § 63, p. 501; see also Model Penal Code (1985) § 2.06, com*533ment 6.14 Connecticut has taken the same approach through General Statutes § 53a-8. See State v. Baker, supra.” State v. Harris, supra.

Therefore, a person may be held liable as an accessory to a criminally negligent act if he has the requisite culpable mental state for the commission of the substantive offense, and he intentionally aids another in the crime. For the above reasons, we find that being an accessory to criminally negligent homicide is a cognizable crime under Connecticut law. Accordingly, the trial court did not err either in instructing the jury with respect to the crime or in denying the defendant’s post-trial motions.

*534II

The defendant next contends that even if the crime of being an accessory to criminally negligent homicide does exist, there was insufficient evidence to support a verdict of guilty and therefore the trial court erred in denying his motion for judgment of acquittal. We disagree.

In addressing a claim challenging the sufficiency of the evidence, we undertake a two part evaluation. “ ‘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. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, *53579 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985).” State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986); see State v. Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986); State v. Cavallo, 200 Conn. 664, 673, 513 A.2d 646 (1986).

To establish the crime of being an accessory to criminally negligent homicide, it is incumbent that the state prove beyond a reasonable doubt that the defendant, in intentionally aiding another to engage in the commission of the offense, failed to perceive a substantial and unjustifiable risk that death will occur, and that such death did occur. See General Statutes § 53a-3 (14). In the present case, the state introduced evidence that the defendant was “bitter” about the alleged rape and robbery of his girlfriend and was purposely looking for the perpetrator. The defendant, while walking in the vicinity where the rape and robbery had occurred, saw a man who matched the description of his girlfriend’s assailant. The defendant and his companion, Cannon, followed the man, the victim Middleton, behind a building and confronted him in an alleyway. The defendant proceeded to question Middleton regarding the alleged rape and robbery. When Middleton attempted to leave, the defendant pushed him back and told him that he wanted to find out if he was the rapist. Middleton again tried to leave, but a fight ensued, and the defendant proceeded to beat Middleton about the face, eye, chest and head with his fist and a blunt instrument, finally knocking him to the ground. After the fight, the defendant told Middleton to wait at the schoolyard while he went to get his girlfriend to confirm his belief that Middleton had committed the rape. Although Middleton agreed to wait, the defendant handed Cannon a knife to prevent Middleton from *536escaping. While the defendant was gone, Middleton was stabbed in the chest and subsequently died as the result of the stab wound.

In a review of the evidence before the jury, it is understood that much of the relevant evidence may be circumstantial. State v. Simino, supra, 117; State v. Braxton, supra. “There is, of course, no legal distinction between direct and circumstantial evidence as far as probative force is concerned. State v. Wilson, 178 Conn. 427, 434, 423 A.2d 72 (1979). ‘It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).” State v. Crump, supra, 495. What amounts to criminal negligence depends entirely on the circumstances of the particular conduct. Whether, under the circumstances, the defendant, in acting, failed to perceive a substantial and unjustifiable risk that a death would occur and whether that failure constituted a gross deviation from the standard of conduct that a reasonable person would observe is left to the trier of fact. See General Statutes § 53a-3 (14); see also People v. Abbott, 84 App. Div. 2d 11, 14, 445 N.Y.S.2d 344 (1981).

From the evidence presented, the jury could reasonably have found that the defendant intentionally had aided Cannon by giving him the knife. Additionally, the jury could reasonably have inferred that, in handing Cannon the knife to prevent Middleton from escaping, the defendant had failed to perceive a substantial and unjustifiable risk that death would occur. Contrary to the defendant’s claim, there was sufficient evidence to support the conviction. Because the jury could have found the defendant guilty beyond a reasonable doubt if it found the state’s evidence credible, the trial court did not err in denying the defendant’s motion for judgment of acquittal.

*537III

In his final claim, the defendant maintains that he is entitled to a new trial because the trial court’s instructions on the essential elements of kidnapping in the second degree violated his due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant claims that the court’s instructions regarding the charge of kidnapping, and more specifically, in defining the terms “restrain” and “abduct,” were misleading and inadequate, thus diluting the presumption of innocence and allowing a conviction on something less than proof beyond a reasonable doubt of each essential element of the crime with which he was charged. We disagree.

Initially, we note that the defendant did not except to any part of the court’s instruction on this charge at trial, but raises this issue for the first time on appeal. A claim not raised at trial is reviewable only if the record adequately supports a claim that the defendant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Although the state argues that there has been no clear deprivation of a fundamental constitutional right and fair trial, we will review the defendant’s claim, because the failure to instruct the jury adequately on each essential element of the crime charged may have resulted in a violation of the defendant’s due process rights implicating the fairness of his trial. State v. Fleming, supra, 269-70; State v. Sinclair, 197 Conn. 574, 580, 500 A.2d 539 (1985).

“It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond *538a reasonable doubt in order to obtain a conviction. In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). An instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).

“It is well established, however, that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812 [cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84] (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977).” State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Thus, an error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Fleming, supra, 269; State v. Sinclair, supra, 581; State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

The defendant first challenges the court’s instruction with regard to the definition of “restrain.” The trial court instructed the jury that “[t]here can be in this case no kidnapping unless you find that [the victim] was abducted. To abduct means to restrain a person with intent to prevent his liberation .... Restrain means *539to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty .... So you cannot find kidnapping until you find it established that there was such restriction of movement and that it has been done intentionally; that it has been [done] without right or authority of law and it has had the effect of interfering substantially with the victim’s liberty . . . .” The defendant claims that the court inadequately explained that the state must prove that the defendant had to have the conscious objective to interfere substantially with the victim’s liberty, and that the court misled the jury by instructing them that the restraint “has the effect of interfering substantially with the victim’s liberty,” in that it permitted the jury to find the defendant guilty even if the interference was nothing more than an unintended by-product of the defendant’s intentional acts. A careful examination of the entire charge belies the defendant’s contentions. When the charge is reviewed in its entirety, it is obvious that the court had more than adequately explained the meaning of “restraint,”15 and it is clear from such a review that *540the jury was not misled into concluding that the defendant need not intend to interfere substantially with the victim’s liberty.

The defendant also challenges the trial court’s instruction with respect to the definition of “abd