Connecticut v. Gary

869 A.2d 1236 (Conn. 2005)

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Nature of the Case

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Facts

Hector Santiago, a patrol officer with the police, testified that in the early morning hours of May 21, 2000, he and two other officers were patrolling the general area of the Live Wire Club (club). The club operates after 2 a.m. as an 'after-hours' club at which dancing, but not drinking, is allowed. Approximately 150 people were waiting outside the club when it opened. Blackman, a police sergeant, and Santiago's supervisor arrived in his patrol car at approximately 3 a.m. As Santiago approached the car, and started to report the night's events to Blackman, Santiago heard what he described as a loud 'clapping sound as if a balloon popped' coming from inside the club. A large number of people ran out of both the front and back doors of the club. Santiago heard some of the people saying that someone had been shot. He saw a woman holding her hands in front of her face and yelling, 'Oh my God, they shot him in the head.' Santiago approached the woman and saw that she had blood on her. Santiago and a number of other officers then entered the rear entrance of the club and saw a man lying on the floor. He had a bullet wound above his right eye and was not moving or able to speak. Medical personnel arrived and the victim was taken to the hospital. Detectives found a shell casing in an alcove near the rear door. The casing was an 'RP 380' caliber. A '380' is a semiautomatic handgun and discharges the shell casing automatically when it is fired. Luis Duarte was employed as a bouncer at the club and to his knowledge, no one entered the club with a weapon that night. Hines testified that he went to the club with the victim and Samuel Mabry. He saw D outside the club. The club was extremely crowded, it was difficult to move around and strobe lights were flashing. Hines made his way to the back of the club and heard two gunshots. Hines testified that he 'felt the pressure' of a bullet passing him. Although he was standing about three feet behind the victim when the shots were fired, he did not see D, the gun, or a muzzle flash. Mabry went to the club with Hines and the victim. They saw D, who was a friend, outside the club. D gave a gun to the victim, who concealed it in his crotch area. All of them entered the club through the front door. D, Mabry, and the victim walked to the back of the club. Mabry heard D ask the victim to return his gun. Jemar Sanders started 'talking trash' to D. Mabry stepped between D and Sanders and told D to 'leave it alone.' Mabry and D then turned away from Sanders toward the front of the club. Sanders hit D in the back of the head with his fist. D bent over and turned back toward Sanders. De had a pistol in his hand and 'took the shot.' The bullet struck the victim. At the time of the shooting, Mabry had been between the defendant and Sanders and the victim had been standing to the side. Mabry was close enough to touch Dt and the victim was two or three feet away and had grabbed Sanders. D raised the gun to shoulder height before shooting it and the gun was about two feet from Mabry when it was fired. Mabry told the police that the shooting had been accidental. Sanders testified that he punched D in the face. The defendant then backed up and drew 'a little gun .' The gun fired immediately. Sanders testified that he was standing directly in front of D. The victim, who was standing between Sanders and D, was struck by the bullet. It was so crowded in the club that it was hard to move, but Sanders 'dove' under the people dancing on the stage and crawled and ran out of the club. D was charged with murder in violation of § 53a-54a. At trial, the state sought to prove the murder charge under a theory of transferred intent. P sought to prove that the defendant had intended to kill Sanders and, acting with that intent, killed the victim. D made a motion for judgment of acquittal on the ground that there was insufficient evidence for the jury reasonably to conclude beyond a reasonable doubt that D had been in possession of a firearm. The trial court denied the motion. The jury found D guilty. D appealed.