author: PALMER, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. VICTOR TORRES
    (SC 15513)
    Borden, Berdon, Norcott, Palmer and McDonald, Js.
    Argued April 30
    officially released August 19, 1997

      Harry Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John Davenport, assistant state’s attorney, for the appellant (state).

      Susan M. Hankins, assistant public defender, for the appellee (defendant).
   Opinion

PALMER, J.

The defendant, Victor Torres, was convicted after a jury trial of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a). The trial court rendered judgment sentencing the defendant to a term of imprisonment of fifteen years. The defendant appealed from the judgment of conviction to the Appellate Court, and a divided panel of that court reversed the trial court’s judgment on the ground that the evidence was insufficient to support the jury’s guilty verdict. State v. Torres, 41 Conn. App. 495, 676 A.2d 871 (1996). We granted the state’s petition for certification limited to the issue of whether the Appellate Court properly determined that the defendant’s conviction was not supported by the evidence. State v. Torres, 239 Conn. 902, 682 A.2d 1012 (1996). Because we conclude that the evidence was sufficient to sustain the jury’s verdict, we reverse the judgment of the Appellate Court.

The opinion of the Appellate Court describes many of the facts that the jury reasonably could have found. “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 ... 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 [in the two month period immediately preceding the shooting], 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 [in the city of Waterbury]. 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 [citizens band (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, [one of the victims], 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.” State v. Torres, supra, 41 Conn. App. 496-97.

At the conclusion of the trial, the jury found the defendant guilty of conspiracy to commit murder. The defendant thereafter moved for a judgment of acquittal, claiming that the evidence was insufficient to support the jury’s verdict. The trial court denied the defendant’s motion. The defendant appealed to the Appellate Court, which reversed his conviction on the ground that the jury’s verdict was not supported by the evidence. This certified appeal followed.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. James, 237 Conn. 390, 435, 678 A.2d 1338 (1996). “In this process of review, it does not dimmish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 617, 682 A.2d 972 (1996). Moreover, “[i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). “As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], 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.” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, supra, 196; see also State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

Furthermore, “[t]his court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” State v. Tomasko, 238 Conn. 253, 258, 681 A.2d 922 (1996). Accordingly, “[w]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) Id. Finally, “[i]n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Ford, supra, 230 Conn. 693; State v. Little, supra, 194 Conn. 674; see also State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985) (“[i]t is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom”).

Because the defendant was convicted of conspiracy to commit murder, we also must consider the essential elements of the crime of conspiracy. “To establish the crime of conspiracy [to commit murder . . . the state must show] that an agreement was made between two or more persons to engage in conduct constituting [the crime of murder] and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . While the state must prove an agreement [to commit murder], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 245-46, 690 A.2d 1370 (1997); State v. Taylor, 239 Conn. 481, 495-96, 687 A.2d 489 (1996).

Guided by these principles, we consider whether the Appellate Court properly determined that the evidence was insufficient to sustain the defendant’s conspiracy conviction. The defendant does not dispute either that members of the Latin Kings conspired to kill a member of the Los Solidos gang or that this illegal agreement culminated in the ambush of the victims on September 26,1993. Rather, the defendant contends that there was insufficient evidence to establish that he was part of the illicit plan. We agree with the state that the evidence adduced at trial, considered cumulatively and viewed in the light most favorable to sustaining the verdict, was sufficient to support the jury’s finding of guilt beyond a reasonable doubt.

The following additional facts, relevant to our resolution of this issue, reasonably could have been found by the jury. As a result of his investigation, Henderson learned that members of the Latin Kings had occupied various positions throughout Waterbury’s south end on the evening of the shooting in order to implement the gang’s plan to kill a Los Solidos gang member. Communication among the various locations was maintained through a CB channel on walkie-talkies, some of which Henderson subsequently retrieved. According to Martinez, the four other members of the Latin Kings assigned to the rooftop of the building on East Clay Street with Martinez were heavily armed with shotguns, handguns and automatic weapons. Martinez further testified that, while acting as a rooftop lookout, he had heard the defendant’s voice, among others, broadcast over Velez’ walkie-talkie. At approximately midnight, Velez, immediately after speaking with an unidentified person over his walkie-talkie, gave the order to fire at the victims.

Martinez also testified that the defendant was located at “sector one” at the time Martinez heard his voice over Velez’ walkie-talkie, and that “sector one” was Morales’ Cafe in Waterbury, one of the locations where members of the Latin Kings had been stationed in connection with the implementation of the plan. Martinez further indicated that, after the emergency meeting at which the illegal scheme was approved, members of the Latin Kings who had attended that meeting reviewed the plan with those gang members who, like Martinez, already had taken their positions and, consequently, were not present at the meeting.

In his interview with Henderson after the shooting, the defendant acknowledged that he was the regional commander of the Waterbury Latin Kings, and that he previously had served as the gang’s president and philosopher. On the basis of his conversation with the defendant, Henderson concluded that, although he was reluctant to implicate himself in the conspiracy, the defendant had demonstrated “a lot of knowledge” regarding the shooting and had revealed information concerning the crime that was not available to the general public at the time.

The jury, considering the cumulative weight of all the evidence, reasonably could have inferred that the defendant had joined with his fellow gang members in the conspiracy to kill a member of the Los Solidos. First, the testimony by Martinez and Henderson regarding the defendant’s rank in the organization, viewed in combination with the other evidence adduced at trial, supports such an inference. In light of the defendant’s rank as regional commander for the Waterbuiy Latin Kings, his attendance at numerous gang meetings in the months immediately preceding the shooting, and his presence at Morales’ Cafe in the hours leading up to the shooting, the jury reasonably could have inferred either that the defendant had attended the planning meeting or, alternatively, that he otherwise had participated in or approved of the scheme. The jury heard testimony regarding various leadership positions held by Latin King members, including those of president and regional commander, and that the gang met regularly as a group. The evidence also established that, in connection with the Latin Kings’ plan to retaliate against the Los Solidos, members of the Latin Kings had armed themselves with automatic weapons, deployed armed members at various “sectors,” and communicated with each other over portable radios. In view of this evidence, the jury reasonably could have inferred that the Latin Kings operated in a paramilitary fashion with a hierarchical chain of command. Consequently, the jury reasonably could have concluded that a scheme as important and well organized as the plan to Mil a rival gang member would not have been undertaken without the prior approval of the Latin King leadership, including its regional commander, who previously had served as its president and philosopher.

Other evidence supports the inference that the defendant was actively involved in the gang’s illegal operations on the night of the shooting. Martinez testified that the defendant was present at “sector one,” one of the locations where members of the conspiracy were stationed. The jury also heard testimony from Martinez that the defendant had communicated from “sector one” over Velez’ walkie-talkie during the hours leading up to, and culminating in, the shooting. It was reasonable for the jury to infer, therefore, that the defendant’s presence at “sector one” with other gang members involved in the plan was neither coincidental nor innocent, especially in view of the defendant’s rank in the organization. Moreover, because the evidence supported the inference that Velez and his confederates on the rooftop were waiting for authorization to begin shooting and, further, that such authorization had come over the walkie-talkie, it also would have been reasonable for the jury to have inferred that the Latin Kings’ use of walkie-talkies was integrally related to the conspiracy. Finally, the jury reasonably could have inferred that, in light of his position as regional commander, his presence at “sector one,” and his voice transmission over the radio system used by the conspirators to communicate with one another, the defendant had obtained the information which he later conveyed to Henderson regarding the illegal plan as a direct result of his participation in the conspiracy.

In concluding that the evidence was insufficient to support the guilty verdict, the Appellate Court identified several purported deficiencies in the testimony that the state claimed constituted circumstantial proof of the defendant’s involvement in the conspiracy. This evidence included: (1) the defendant’s voice communication over Velez’ walkie-talkie at some time prior to Velez’ order to shoot; (2) the defendant’s rank as regional commander of the Waterbury Latin Kings; and (3) the information provided by the defendant to Henderson regarding the perpetrators of the shooting. State v. Torres, supra, 41 Conn. App. 501. In concluding that the jury reasonably could have considered this evidence as a link in a chain of inferences leading to a finding that the defendant had been part of the conspiracy, Judge Schaller, in his dissent; see footnote 3 of this opinion; expressed the view that the majority improperly had “discredit[ed] the evidence that the jury chose to credit.” States. Torres, supra, 41 Conn. App. 506-507. For the following reasons, we agree with Judge Schaller.

First, the Appellate Court declined to accord any weight to Martinez’ testimony that he had heard the defendant’s voice over Velez’ walkie-talkie. Id., 502-503. Specifically, the Appellate Court concluded that this evidence was insufficient to establish either that the defendant had communicated directly with any of the gang members who fired the shots from the rooftop, or that the defendant was located at “sector one” when Martinez heard his voice transmission over Velez’ walkie-talkie. Id. In support of its first point, the Appellate Court relied on the fact that Martinez did not testify as to the time, nature, duration or substance of the communication. Id., 502. Even if we assume, arguendo, that Martinez’ testimony was inadequate to support an inference that the defendant had communicated directly with Velez, we note that the state was not required to prove that these individuals had communicated directly with each other in order to establish the defendant’s involvement in the Latin Kings’ illegal plan. Rather, the fact that the defendant’s voice was overheard on the radio system used by the conspirators to communicate with one another during the critical period leading up to the shooting, when viewed in combination with the other evidence, reasonably supports an inference that the defendant was part of the conspiracy.

We also disagree with the Appellate Court’s assertion that Martinez’ testimony regarding the defendant’s presence at “sector one” was not sufficiently rehable to be accorded any weight by the jury. The Appellate Court concluded that the jury could not reasonably have credited this evidence because Martinez failed to provide the basis for his knowledge of the defendant’s presence at “sector one” and, further, that there was no evidence that “sector one” was a command post. Id., 503. The defendant, however, never challenged the foundation of Martinez’ testimony that the defendant was located at “sector one.” Moreover, Martinez testified that he and the other Latin Kings who had not attended the emergency meeting were apprised of the details of the plan by gang members who had attended that meeting. Furthermore, the jury reasonably could have inferred that “sector one” was a command post because the name “sector one” suggests the primacy of that location and, according to Martinez, the defendant, the gang’s regional commander and past president and philosopher, was present there. In light of Martinez’ testimony that “sector one” was one of the locations where lookouts were stationed, however, it was not critical for the state to have established that “sector one” was a command post. Finally, although Martinez did not testify that the defendant had disclosed his location when he spoke over the walkie-talkie, we note that Martinez did indicate that fellow gang members who had attended the emergency meeting had provided Martinez with information regarding the illegal plan discussed at the meeting. The jury reasonably could have inferred that Martinez was told where the defendant would be located during this debriefing. Consequently, the jury reasonably could have credited Martinez’ testimony regarding both that the defendant was present at “sector one,” and that “sector one” was one of the designated sites from which the plan was to be implemented.

Second, the Appellate Court concluded that the jury could not reasonably have drawn any incriminatory inferences as a result of the defendant’s rank as regional commander of the Waterbury Latin Kings. Id., 504. In support of this conclusion, the Appellate Court noted that the evidence indicated that the defendant had not presided over the prior gang meetings attended by Martinez, and that there was no testimony regarding the specific role of the regional commander or the internal structure of the Latin Kings. Id. Because the reasonable inferences to be drawn from the defendant’s rank in the organization do not depend on either of these evidentiary lacunae, we do not agree with the Appellate Court that the jury was required -to ignore the defendant’s leadership role in the gang in determining whether he was a member of the conspiracy. The jury was entitled to use its common sense and judgment in evaluating the relationship, if any, between the defendant’s past and present positions in the Latin Kings and the likelihood of his involvement in the conspiracy. This is particularly true in view of the evidence adduced by the state establishing the hierarchical nature of the gang, and the organized manner in which the illegal plan was executed.

Finally, the Appellate Court found “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.” Id. The Appellate Court noted that “Henderson testified that the defendant expressly denied any involvement in the conspiracy, and that he could have learned whatever information he possessed about the shooting after it had occurred.” Id., 504-505. The Appellate Court concluded that the jury could not reasonably have inferred that the defendant’s knowledge about the crime derived from his involvement in the conspiracy, rather than from discussions with gang members after the incident. Id., 505. We disagree.

Henderson testified that, although the defendant was “reluctant to implicate himself in the actual shooting,” he both identified one of the shooters and provided detailed information regarding the disposal of the weapons used during the incident. “That the jury might have drawn other possible inferences from these facts is not sufficient to undermine its verdict, [because] proof of guilt must be established beyond a reasonable doubt, not beyond a possible doubt. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991); see also State v. Bruno, 236 Conn. 514, 545-46, 673 A.2d 1117 (1996). Consequently, in view of the defendant’s position as regional commander, his presence at “sector one,” and his voice communication over the radio used by the conspirator who relayed the order to shoot, we conclude that the jury reasonably could have inferred that the defendant’s knowledge of the details of the conspiracy derived from his direct participation in it.

“From the evidence presented, the jury reasonably could have found that the defendant held a series of leadership positions in the Waterbury branch of the Latin Kings, including president, culminating in his position as regional commander. He regularly attended the Latin Kings meetings, including all of the meetings at which Martinez had been present. On the day of the emergency meeting, held in the midst of a ‘war’ with a rival gang, he was present at the sector established as part of the conspiracy to shoot a member of Los Solidos, and he communicated before the shooting with Velez on the rooftop. Because no Latin Kings leaders were on the roof, and [because a radio] communication immediately preceded the shooting, the jury reasonably could have inferred that Latin Kings leaders were at sector one, where the defendant, who was a leader, was located. From the defendant’s leadership position, his regular attendance at meetings, the emergency nature of the situation and the fact that the defendant employed a [walkie-talkie] for communication, all of which were integral parts of the plan to commit the murder, and that the plan proceeded without interruption after the defendant’s communication with Velez, the jury reasonably could have inferred that the defendant knew of the plan to kill a member of Los Solidos, agreed to conspire to commit the murder, shared the intent to commit the murder and that a coconspirator committed an act in furtherance of the conspiracy.

“Having drawn those reasonable inferences concerning the defendant’s participation and shared intent, the defendant’s disclosure ten days later, in Henderson’s words, of ‘a lot of knowledge’ about the incident, not readily available ‘in the general public’ could have led to further reasonable inferences of the defendant’s guilt of the crime charged. The fact that the evidence was disputed or that other inferences could have been drawn is not relevant to our review. As long as evidence existed from which the jury reasonably could have found the facts and drawn the inferences leading to its guilty verdict, it is our obligation to defer to those findings and inferences in passing on this sufficiency challenge.” State v. Torres, supra, 41 Conn. App. 510-11 (Schaller, J., dissenting).

Consequently, although “no clear line of demarcation exists between a permissible inference and an impermissible speculation”; State v. Sivri, supra, 231 Conn. 165 (Peters, C. J., dissenting); we are persuaded that the inferences reasonably drawn from the evidence, taken together and viewed in the light most favorable to sustaining the jury’s verdict, supported the jury’s finding of guilt. In so concluding, “[w]e acknowledge that [our] reasoning requires us to posit a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain. That is essentially what circumstantial evidence means, however, and it is what our case law generally permits. We also acknowledge that this is not an easy case. We conclude, nonetheless, that it is a case in which the jury’s [conclusion that the defendant was a member of the conspiracy] was sufficiently supported by the circumstantial evidence.” Id., 130-31. Although another jury rationally could have reached a different conclusion, we cannot say that this particular jury verdict lacked sufficient support in the evidence. Accordingly, we conclude that the Appellate Court improperly reversed the judgment of conviction rendered by the trial court.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to consider the defendant’s remaining claims on appeal.

In this opinion BORDEN, NORCOTT and MCDONALD, Js., concurred.

BERDON, J.,

dissenting. I disagree with the majority because there was insufficient evidence to support the defendant’s conviction of conspiracy to commit murder. In my view, the defendant’s conviction boils down to a finding of “guilt by association.”

This case requires us to revisit a basic principle of constitutional law. Justice Brennan, in In re Winship, 397 U.S. 358, 362-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), writing for a majority, stated: “Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. . . . The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . . . The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” (Citations omitted; internal quotation marks omitted.) In addition, Justice Brennan wrote: “[Use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.

“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., 364.

“In determining whether the evidence is sufficient to sustain a verdict, we have said that the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . Each essential element of the crime charged must be established by proof beyond a reasonable doubt . . . and although it is within the province of the jury to draw reasonable logical inferences from the facts proven, they may not resort to speculation and conjecture. ... A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” (Citations omitted; internal quotation marks omitted.) State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984).

The evidence that the majority finds sufficient to support the defendant’s conviction is the same evidence that the Appellate Court concluded was insufficient to support a conviction. The Appellate Court summarized this evidence by indicating that “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) [Jose] Martinez [another Latin Kings gang member] heard the defendant’s voice over [gang member Jose] 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.” State v. Torres, 41 Conn. App. 495, 501, 676 A.2d 871 (1996).

When considering the state’s inference based case, the Appellate Court aptly explained that “[t]he 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.” Id.; see also State v. Sivri, 231 Conn. 115, 165, 646 A.2d 169 (1994) (Peters, C. J., dissenting) (“[w]hen there are no ascertainable facts from which the appropriate inferences may reasonably be drawn, the presumption of innocence requires a conviction to be set aside”); State v. Sivri, supra, 167 (Berdon, J., dissenting) (“[speculative evidence, no matter how cumulative, cannot support an inference or series of inferences upon which an element of a crime can be proven beyond a reasonable doubt”). In a lengthy and detailed decision, and after carefully scrutinizing all of the evidence, the Appellate Court “conclude[d] 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.” State v. Torres, supra, 41 Conn. App. 505. Due to the fact that there was insufficient evidence, the defendant in this case has not been proven guilty beyond a reasonable doubt and his conviction should be reversed. Because I agree with the Appellate Court’s reasoning and its result, I endorse that opinion and incorporate it herein.

Accordingly, I dissent.

       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.”

       General Statutes § 53a-54a (a) provides in relevant 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 . . . .”

       Judge Schaller dissented from the decision of the majority, concluding that the evidence was sufficient to sustain the defendant’s conviction. State v. Torres, 41 Conn. App. 495, 506-12, 676 A.2d 871 (1996).

       On appeal from the judgment of the trial court to the Appellate Court, the defendant also claimed that the trial court improperly admitted evidence of his gang membership because: (1) the prejudicial effect of that evidence outweighed its probative value; and (2) admission of the evidence deprived the defendant of his constitutionally protected rights to due process and freedom of association. The Appellate Court did not address these claims because it reversed the trial court’s judgment on the ground of evidentiary insufficiency. In light of the fact that the parties have not briefed these issues in this court, we decline to consider them, and the Appellate Court will be required to address them on remand.

       The defendant also had been charged with attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2), 53a-54a (a) and 53a-8 (a), and first degree assault in violation of General Statutes § 53a-59 (a) (1). Following the presentation of the state’s case, the trial court granted the defendant’s motion for judgment of acquittal with respect to those charges.

       Martinez was the state’s key witness at trial.

       Although Martinez did not hear what the defendant said on the walkietalkie, he unequivocally identified the defendant’s voice. Martinez stated that he had known the defendant for two months and had spent, in total, several hours in conversation with him.

       We note that the common meaning of the term “commander” is “one in an official position of command or control . . . Webster’s Third New International Dictionary.

       Henderson further testified that the defendant admitted his previous positions as president and philosopher of the Waterbury Latin Kings. Henderson’s testimony also corroborated Martinez’ testimony in certain key respects, including the reason why the Latin Kings were attempting to kill a rival gang member, the manner in which the ambush was accomplished, and the identity of the persons actually involved in the shooting.

       The Appellate Court also concluded that the record did not support the assertion that the defendant had attended each of the nine meetings that Martinez had attended. State v. Torres, supra, 41 Conn. App. 504. We disagree. While Martinez’ testimony was not always completely consistent, “ [ijnconsistencies do not render a witness’ testimony incredible as a matter of law. ... It is uniquely the province of the trier of fact ... to determine the import of the evidence by gauging the credibility of the witnesses.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 332-33, 662 A.2d 119 (1995). The trial transcript contains the following testimony by Martinez during redirect examination by the state:
      ‘‘[John Davenport, Assistant State’s Attorney:] In your statement you mentioned that you had been in about nine meetings with Latin Kings at the point you gave the statement; is that correct?

        “[Jose Martinez:] Yeah.
      “Q. Were many of the people you dealt with that night at those meetings as well?
      “A. Yeah.
      “Q. Yes. Was Victor Torres at those meetings?
      “A. When, before?
      “Q. Yeah, the one you spoke when you say the nine meetings that you had attended?
      “A. Yeah.
      “Q. He had been there before?
      “A. Yeah.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. CAROL TOMASKO
    (SC 15499)
    Berdon, Norcott, Katz, Palmer and Peters, Js.
    Argued June 3
    officially released August 19, 1997

      David J. Laudano, with whom, on the brief, was Raymond W. Ganim, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

The defendant, Carol Tomasko, appeals from the trial court’s denial of her motion for a new trial following the judgment of guilty of murder rendered against her after a jury trial. The defendant claimed that she was entitled to a new trial because: (1) during jury deliberations, one or more jurors improperly had considered information contained in a newspaper article regarding the trial proceedings; and (2) the state had withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). After a hearing, the trial court denied the defendant’s motion. We conclude that the trial court properly rejected the defendant’s claims and, accordingly, we affirm the trial court’s judgment.

I

The defendant first contends that the trial court improperly rejected her claim that her conviction of murder was tainted because jurors had discussed a newspaper account of the trial proceedings during their deliberations. We disagree.

The following facts are relevant to our resolution of this issue. The jury began its deliberations in the defendant’s trial on the afternoon of Tuesday, June 21, 1994. Deliberations continued until Monday, June 27, 1994, when the jury requested that the trial court reinstruct it on the principle of reasonable doubt and provide it with guidance on how to overcome an “impasse” that existed among its members. The trial court, as requested, reinstructed the jury on reasonable doubt and, further, gave the jury a “Chip Smith” instruction. Thereafter, the jury resumed deliberations and returned a guilty verdict on Tuesday, June 28, 1994.

At the hearing on the defendant’s motion for a new trial, juror Robert Schmidt testified that during the jury’s deliberations on Friday, June 24, 1994, an unnamed juror stated that he had heard that the trial judge was preparing a “Chip Smith” instruction to give to the jury. According to Schmidt, the jury had discussed the meaning of such an instruction for “the better half’ of its deliberations on Friday. Schmidt characterized the jurors’ conjecture regarding the meaning of the “Chip Smith” instruction as “basically incorrect.” Schmidt also testified, however, that he had understood the difference between the inaccurate information regarding the “Chip Smith” instruction that purportedly had been introduced to the jury by the unnamed juror, on the one hand, and the correct instruction subsequently given by the trial court, on the other. Furthermore, Schmidt acknowledged that his vote to convict the defendant had not been influenced by any premature discussions about the impending “Chip Smith” instruction. Finally, Schmidt stated that he had been the lone holdout both before and after the jurors’ Friday morning discussion regarding the newspaper article, and that he did not change his vote until Tuesday.

Merton Conley, the jury foreperson, also testified at the hearing. Conley stated that he could not recall any juror discussing a newspaper article about the trial. Moreover, Conley testified that he did not recall any discussions regarding the “Chip Smith” instruction on Friday, June 24, 1994, or at any other time prior to the “Chip Smith” instruction given by the trial court.

In its memorandum of decision on the defendant’s motion, the trial court concluded that even if it assumed, arguendo, that Schmidt’s testimony was completely accurate, Schmidt had testified that “he understood [the court’s ‘Chip Smith’] charge, and also that the court’s charge clearly showed that the previous speculation about what the charge might consist of was not accurate.” The trial court further concluded that “Schmidt was the lone holdout before, during and after these events. The other eleven jurors had already decided the defendant was guilty. It is impossible to see how the defendant’s case was harmed in any way. No evidence entered the jury room — only foolish speculation which did not sway [Schmidt] — or anyone else. . . . [Furthermore], there is no doubt that the volunteered speculation about an impending ‘Chip Smith’ charge did not affect the defendant in any way. Schmidt made it clear [that] he recognized the differences between the speculation and the actual charge. He testified [that] he based his actions on the actual charge, not on the earlier comments about it. The court finds that the incident, such as it was, was not harmful to the defendant. Not only did it have no effect on any jurors, but any [effect] it might have had [was] quickly and totally dissipated when the court gave the correct charge. The court is satisfied, beyond any reasonable doubt, that the defendant could not be, and was not, prejudiced by what is alleged to have occurred. . . . To the degree that anyone might have been confused by erroneous information, the court’s charge soon after gave the jury the proper information and quite successfully cleared the air. . . . [Thus, t]he incident in question did not in any way compromise [the defendant’s] right to a fair trial.” (Emphasis in original.)

Our review of the trial court’s conclusion regarding the defendant’s allegations of jury impropriety is guided by well established principles. “Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of juror misconduct will necessarily be fact specific. . . . It is the trial court that must, in the exercise of its discretion, weigh the relevant factors and determine the proper balance between them.” State v. Brown, 235 Conn. 502, 531-32, 668 A.2d 1288 (1995). Furthermore, where “the trial court was in no way responsible for the juror misconduct . . . we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct.” (Internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 628, 682 A.2d 972 (1996). In assessing whether a defendant has met this burden, we are mindful that “[d]ue process seeks to assure a defendant a fair trial, not a perfect one. . . . [T]he constitution does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. . . .” (Citations omitted; internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 87, 621 A.2d 728 (1993).

Applying these principles to the case before us, we conclude that the trial court properly rejected the defendant’s claim of juror misconduct. The testimony adduced at the hearing on the defendant’s motion for a new trial fully supports the trial court’s express finding that even if one or more jurors had speculated about the nature of the impending “Chip Smith” instruction in accordance with Schmidt’s testimony, no possible prejudice inured to the defendant as a result of any such speculation or discussion. Accordingly, we reject the defendant’s contention that she is entitled to a new trial on the basis of the information regarding the forthcoming “Chip Smith” instruction that the jury allegedly had considered during its deliberations.

II

The defendant also claims that the state withheld exculpatory evidence from her in violation of the due process clauses of the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. See Brady v. Maryland, supra, 373 U.S. 83; State v. Simms, 201 Conn. 395, 405, 518 A.2d 35 (1986). Specifically, the defendant contends that the state improperly suppressed: (1) a police report allegedly containing information tending to exculpate the defendant; and (2) audiotapes of police interviews with Thomas Marra, who claimed that the state inspectors conducting the interviews had accused him of murdering the victim, George Sabol. We conclude that the trial court properly rejected the defendant’s claims.

The following additional facts are relevant to our resolution of these claims. By letter dated May 12,1995, Marra notified the defendant’s counsel that inspectors from the Bridgeport state’s attorney’s office had accused Marra and another individual, James Kallman, of having murdered the victim. According to Marra’s letter, the inspectors had made this accusation during the course of interviews with him several years prior to the defendant’s arrest and trial. See footnote 13 of this opinion. The defendant, in her new trial, claimed that this information was exculpatory and, consequently, that the state’s failure to disclose it required a new trial.

Marra testified at the hearing on the defendant’s new trial motion, along with his attorney, Frank Riccio, and John Solomon, formerly an inspector with the Bridgeport state’s attorney’s office. Marra indicated that, commencing in October, 1985, he had been interviewed on several occasions by Solomon and various other police officials about a number of subjects, and that during one or more of these interviews, Solomon had accused Marra of having murdered the victim. Marra further testified that the police had indicated to him that they also suspected Kallman of the minder. Although he claimed that Solomon had accused him of the victim’s murder, Marra acknowledged that Solomon and the other police interviewers never indicated that they had any evidence to support a claim that Marra had been involved in the crime. Furthermore, Marra indicated that, in his view, the police, and Solomon in particular, suspected him of numerous crimes. On cross-examination, the state introduced impeachment evidence establishing that Marra had been convicted of eighty-nine separate felony offenses, including murder, kidnapping, fraud, larceny, tampering with a witness, tampering with evidence, and hindering prosecution.

Riccio, who testified that he was present during the police interviews of Marra, corroborated Marra’s testimony that the police had accused Marra and Kallman of the victim’s murder. Riccio also indicated, however, that Marra had been questioned about more than twenty homicides.

Solomon testified that he had interviewed Marra on several occasions regarding the victim’s murder, as well as many other homicides. He denied ever having accused Marra of murdering the victim, however, and indicated that he was “certain that [Marra] was never accused of that murder; nor to this day [did] I . . . ever suspect he was involved in it.” Solomon also indicated that Marra was not trustworthy because he had lied to Solomon “hundreds” of times.

Solomon further testified that Marra had given him only one piece of information regarding the victim’s murder, namely, that “Kallman and the [the victim’s] daughter . . . Mary Sabol [had broken] into the residence of a Gustave Curcio in Stratford” because “both of them suspected that Mr. Curcio [had] committed the murder; and they broke into that residence to look for a gun that may have been used in the murder.” Solomon testified that he had obtained the police report regarding the burglary after he had been informed of the incident, and that he had retained it in the Bridgeport state’s attorney’s office. With the exception of interviewing Mary Sabol about the burglary, Solomon did not otherwise follow up on the police report. Finally, Solomon testified that the audiotapes of his lengthy interviews with Marra were in the possession of the Bridgeport state’s attorney’s office.

Against this factual background, we apply the well established legal principles that govern our resolution of the defendant’s claims. “We have long recognized the common-law duty of the prosecutor to ensure that all evidence tending to aid in ascertaining the truth be laid before the court, even though such evidence is not consistent with the prosecution’s contention that the accused is guilty. . . . Moreover, [t]he state is constitutionally obligated to disclose certain information to a defendant. The principles of due process require the prosecution to disclose exculpatory evidence that is material to a defendant’s guilt or punishment. Brady v. Maryland, supra, [373 U.S.] 87.” (Citations omitted; internal quotation marks omitted.) State v. Rasmussen, supra, 225 Conn. 90. In order to prove a violation of the state’s obligation to disclose exculpatory evidence under Brady, “the defendant bears a ‘heavy’ burden to establish: ‘(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.’ ” State v. McIntyre, 242 Conn. 318, 323, 699 A.2d 911 (1997); see also State v. Correa, 241 Conn. 322, 360-61, 696 A.2d 944 (1997); State v. Esposito, 235 Conn. 802, 813, 670 A.2d 301 (1996).

“Favorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about [a defendant’s] guilt . . . and this doubt must be one that did not otherwise exist.” (Citations omitted; internal quotation marks omitted.) State v. Green, 194 Conn. 258, 265, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 361; see also State v. Esposito, supra, 235 Conn. 814-15. Furthermore, “[t]he determination of materiality has been said to be inevitably fact-bound and like other factual issues is committed to the trial court in the first instance.” (Internal quotation marks omitted.) State v. Correa, supra, 361.

A

The defendant first claims that the trial court improperly rejected her claim that she is entitled to a new trial because the state failed to disclose the police report regarding the burglary of Curcio’s home by Kallman and Mary Sabol. We disagree.

In its memorandum of decision on the defendant’s motion for a new trial, the trial court properly characterized Kallman’s and Mary Sabol’s suspicion that Curcio may have killed the victim as nothing more than uncorroborated speculation. At the time of the hearing on her motion for a new trial, the defendant was aware that Kallman and Mary Sabol apparently harbored some suspicion that Curcio, rather than the defendant, had killed the victim. The defendant, however, did not elicit any testimony from Kallman or Mary Sabol regarding the factual basis for their suspicion, nor did the defendant indicate that either Kallman or Mary Sabol was unavailable to testify to explain what information, if any, they had concerning Curcio’s role in the killing that had prompted them to burglarize Curcio’s home. In such circumstances, it is difficult to see how the information contained in the police report would have been admissible at the defendant’s trial, let alone how it would have been of sufficient import to warrant a new trial. Moreover, the trial court also noted that the defendant herself had testified at her trial that she was present when her daughter, Meyer, the state’s key witness against the defendant, had killed the victim; see footnote 4 of this opinion; and, therefore, that Kallman’s and Mary Sabol’s unconfirmed speculation regarding another possible killer could not possibly have been material to the defendant’s case. We conclude, therefore, that the trial court properly rejected the defendant’s claim that she is entitled to a new trial on the ground that the state failed to provide her with a copy of the police report regarding the burglary of Curcio’s home.

B

The defendant also maintains that the trial court improperly failed to order a new trial on the ground that the audiotapes of the police interviews with Marra constituted exculpatory evidence, and, therefore, that the state’s suppression of that evidence violated Brady. We are not persuaded.

The trial court, in crediting Solomon’s testimony that he did not recall ever accusing Marra of the victim’s murder, indicated that “[t]he better view is that [this] accusation was not made.” The court also concluded, however, that even if Solomon had accused Marra of the victim’s murder, that accusation was not based on any evidence linking Marra to the crime; indeed, Solomon testified without contradiction that he never believed that Marra actually had committed the crime. The court further stated that, assuming, arguendo, that Solomon had, in fact, accused Marra of the victim’s murder, he undoubtedly had done so as an investigative technique designed to elicit from a “notorious criminal” whatever information Marra might have had about that and numerous other homicides. Moreover, in reaching its conclusion that, in the circumstances of this case, such an unsubstantiated accusation was neither favorable to the defense nor material to the outcome of the trial, the court noted that the allegedly exculpatory evidence conflicted directly with the defendant’s own trial testimony that Meyer had killed the victim. We conclude, therefore, that the trial court properly determined that even if Solomon had accused Marra of having committed the murder, the defendant failed to meet her burden of establishing under Brady either that any such accusation might have led the jury to entertain a reasonable doubt regarding the defendant’s guilt or that the state’s failure to disclose the accusation was sufficient to undermine confidence in the jury’s verdict.

The judgment is affirmed.

In this opinion NORCOTT, KATZ and PETERS, Js., concurred.

BERDON, J.,

concurring. I agree with the result reached by the majority and its reasoning. Although the giving of a “Chip Smith” jury instruction has not been challenged by the defendant in this case; see footnote 6 of the majority opinion; I am troubled by the continued use of that powerful instruction, which urges jurors in the minority to listen to those in the majority.

As I stated in my dissent in State v. Beliveau, 237 Conn. 576, 598 n.1, 678 A.2d 924 (1996): “Jury instructions that encourage jurors to reach a verdict similar to the Chip Smith charge; State v. Smith, 49 Conn. 376, 386 (1881); like its federal counteipart, the Allen charge; Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896); have been criticized as inherently coercive in that they are unbalanced in favor of the majority position. People v. Gainer, 19 Cal. 3d 835, 566 P.2d 997, 139 Cal. Rptr. 861 (1977); Burnette v. State, 280 Md. 88, 371 A.2d 663 (1977); Kersey v. State, 525 S.W.2d 139 (Tenn. 1975); 75B Am. Jur. 2d 351, Trial § 1589 (1992). Many courts have abandoned Allen-type charges in favor of a standard instruction recommended by the American Bar Association, which provides:

“The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

“It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, for the mere purpose of returning a verdict. 75B Am. Jur. 2d, supra, 352-53.” (Internal quotation marks omitted.) In my view, Connecticut trial courts should utilize the instruction recommended by the American Bar Association.

       The defendant has appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       The defendant filed her original motion for a new trial on October 20, 1995. She subsequently filed an amended motion for anew trial on November 21, 1995. All references herein to the motion are to the amended motion for a new trial.

       The defendant filed her motion for a new trial while her appeal from her murder conviction was pending. We affirmed the defendant’s murder conviction; see State v. Tomasko, 238 Conn. 253, 681 A.2d 922 (1996); shortly after the trial court had rendered its decision on the defendant’s new trial motion.

       The defendant was convicted of the murder of the victim, her husband, George Sabol. The facts underlying the defendant’s conviction are summarized in State v. Tomasko, 238 Conn. 253, 255-56, 681 A.2d 922 (1996). “On September 14, 1981, the defendant lived in Stratford with [the victim], and her daughter, Suzette Meyer. The defendant and the victim shared a history of marital strife. On the night of the murder, the defendant and the victim were arguing because the victim had been arrested for driving an unregistered motor vehicle, and the victim had accused the defendant of having informed the police. In the course of the argument, the defendant threw a beer bottle at the victim, who had been drinking. Meyer, who was sitting at the kitchen table across from the victim, was looking down when she heard a loud noise. When Meyer looked up, she saw that the defendant was standing near the doorway holding a small handgun, and that the victim was slumped in his seat at the kitchen table. The victim died from a single gunshot wound to the back of the head.
      “Although Meyer did not actually see the defendant pull the trigger, she testified that the defendant had been moving around during the course of the argument and, at one point, had entered Meyer’s bedroom. Meyer and the victim’s son both testified that the defendant customarily carried the handgun in her pocketbook, which she normally kept in Meyer’s bedroom.
      “After the shooting, the defendant held the gun to Meyer’s head and told her to help clean up the blood from the floor. While Meyer was cleaning the floor, the defendant dragged the victim’s body out the back door and into the yard. Meyer then assisted the defendant in lifting the victim’s body into a pickup truck. Thereafter, the defendant, with Meyer as a passenger, began driving the pickup truck through Stratford. Because the truck developed mechanical problems, the defendant drove the truck to the house of her brother, Ellsworth Hull, where the engine stopped running. Hull, who never noticed the victim’s body in the bed of the truck, was unable to jump start the vehicle. Hull then drove Meyer and the defendant home. Meyer never saw the victim’s body again. One week later, Meyer learned that the victim’s body had been found floating in Long Island Sound.
      “Because Meyer feared for her life as a result of the defendant’s threats, she did not tell the police about the incident until 1992. On September 2, 1992, after reading an article in the local newspaper about the unsolved murder, Meyer told Hull, in whose home she was then living, about the murder. Meyer contacted the police that same day and implicated the defendant. After an investigation in which Meyer assisted the police, the defendant was arrested [charged and convicted of] murder.” Id.

       The jury submitted a note to the trial court that provided in relevant part: “(1) Please give us a definition of a hung jury. Please be specific. How do we resolve our current impass[e].
      “(2) Please explain reasonable doubt. We are having difficulty with the definition of reasonable doubt. . . .”

       “A ‘Chip Smith’ instruction reminds the jurors that they must act unanimously, while also encouraging a deadlocked jury to reach unanimity. See State v. Smith, 49 Conn. 376 (1881); see also 5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 4.8.” State v. Sawyer, 227 Conn. 566, 581 n.10, 630 A.2d 1064 (1993). The trial court gave the following “Chip Smith” instruction:
      “Now, astohowyougo about breaking an impasse, which is the other thing you wanted to know, I believe, let me just read to you what I have written.
      “In the overall scheme of things, ladies and gentlemen, you still have not deliberated very long compared to some cases.
      “So, I want to give you some further instructions.
      “One of the most important policies behind our legal system is the bringing of finality to legal conflict, both civil and criminal.
      “It’s important both for the state and for the defendant who, without finality, continues to have charges hanging over her, with the expectation of future expenses for counsel fees.
      “Everyone needs to know where they stand vis-a-vis the law.
      “Because of th[is] need for finality, because a second trial may impose great hardship and expense on the parties, and perhaps more importantly, because there is no reason to believe that another jury will view the evidence more clearly or accurately than you can, the court wants you to make a continued effort to see if you can resolve this case within the framework of the instructions already given.
      “To help you, I want to give you some additional instructions.
      “And I emphasize now, they are not to be coercive or to force a verdict that does violence to individual judgment. You cannot allow that.
      “They are designed to help you consider your own positions and to weigh them against the positions of other jurors, and to help you reconsider individual conclusions in the light of contrary arguments.
      “These instructions, as I noted, are additional to the prior instructions.
      “They are not in lieu of the original instructions.
      “And, as I told you, I will be happy to repeat any part of those prior instructions that you feel will help you.
      “Up to now, ladies and gentleman, you have not been able to reach a unanimous verdict.
      “I'm sure you realize that this is not the first time that this has occurred in the trial of a case.
      '“And under these circumstances when it becomes clear that you’re having some difficulty, rather than terminating procedures, I want to give you some additional instructions and ask you to return and resume your deliberations.
      “Now, although the verdict to which each juror agrees must, of course, be his or her own conclusion and not a mere acquiescence in the conclusions of his fellows, yet in order to bring twelve minds to a unanimous result, the jurors should examine with candor the questions submitted to them and with due regard and deference to the opinions of each other.
      “In conferring together, the jury ought to pay proper respect to each other’s opinions and listen with candor to each other’s arguments.
      “If much the larger number of the panel are for conviction, a dissenting juror should consider whether the doubt in his or her mind is a reasonable one, which makes no impression upon the minds of so many other men and women equally honest, equally intelligent, and who have heard the same evidence with the same attention and with equal desire to arrive at the truth, and out of the same sanction of the same oath.
      “On the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the conclusion of a judgment which is not concurred in by most of those with whom they are associated on the jury, and distrust the weight or sufficiency of that evidence on which they rely, which fails to carry conviction in the minds of their fellows.
      “I tell you this to get you to further consider the opinions of your fellow jurors in your deliberations.
      “I ask you now to return to the jury room and to return to the task at hand which is to try to arrive at a verdict.”
      The defendant has not challenged the propriety of this instruction on appeal.

       The fact that the trial court was considering giving the jury a “Chip Smith” instruction was contained in a local newspaper account of the trial proceedings. The brother of the unnamed juror allegedly had read the article and conveyed the information to that juror. The jury’s alleged consideration of the newspaper account first came to the defendant’s attention by virtue of a magazine article about the case in which Schmidt was identified as a holdout juror.

       In the trial court’s memorandum of decision on the defendant’s motion for a new trial, the court characterized Schmidt’s testimony as indicating that the jurors, on the basis of the information provided to them by the unnamed juror, had speculated that the “Chip Smith” instruction “meant that the minority had to give in to the majority.” The trial court further observed that the subject newspaper article, which had appeared in the Connecticut Post, “actually stated that the charge requested ‘those in the minority to strongly consider [the] majority opinion.’ ”

       Schmidt testified in relevant part as follows:
      “[Raymond W. Ganim, Defense Counsel]: All right. By the time that he voted on the case itself he had the correct information, it that — is that what’s being said?
      “The Court: You heard that.
      “[Schmidt]: That’s correct.
      “The Court: That’s correct.
      “Mr. Ganim: And that you were making your decision based upon the information that was given in the Chip Smith charge, is that right?

        “[Schmidt]: That’s correct.
      “Mr. Ganim: The correct one that was given to you by the judge, is that right?
      “[Schmidt]: That’s correct.
      “Mr. Ganim: Rather than the incorrect information that was given when the individual juror came into the courtroom or into the jury room and indicated that there was going to be a Chip Smith charge, is that correct?
      “[Schmidt]: That’s correct.”

       Schmidt testified in relevant part as follows:
      “The Court: .... Is that a correct assumption, that the day before [the incorrect information was received], Thursday, it was eleven to one?
      “[Schmidt]: That’s correct.
      “The Court: And it was still eleven to one on Friday?
      “[Schmidt]: That’s correct.
      “The Court: And on Monday it was still eleven to one?
      “[Schmidt]: That’s correct.
      “The Court: And then Tuesday it became twelve?
      “[Schmidt]: That’s correct.”

       It is noteworthy that the trial court expressly found “Conley [to be] a believable witness” and, by contrast, assumed, arguendo, the accuracy of Schmidt’s testimony.

       The defendant also claims that the trial court unduly limited the scope of the inquiry into what effect, if any, the jury’s purported improper speculation about the meaning of the “Chip Smith” instruction had on the verdict. Specifically, the defendant claims that the trial court improperly truncated the examination of Schmidt by refusing to allow questions regarding the actual thought processes of the jurors. Because the defendant failed to raise this claim in the trial court, we are not bound to consider it. Our review of the record, moreover, reveals that the trial court conducted Schmidt’s examination in accordance with Practice Book § 871, which provides that “Mpon an inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. Subject to these limitations, a juror’s testimony or affidavit shall be received when it concerns any misconduct which by law permits a jury to be impeached.” Finally, Schmidt testified that his vote to convict the defendant was not influenced by any misunderstanding of the “Chip Smith” instruction. We, therefore, reject the defendant’s claim.

       The text of Marra’s letter provides in relevant part: “I have some information that might be able to help [the defendant] out with her case. I was interview[ed] in 1985, 1986 [and] 1990 by members of the state[’s] attomey[’s] office in Bridgeport regarding the murder of [the victim].
      “Myself and James [Kallman], were both prime suspeet[s] in that murder, as well as several other murders in the Bridgeport area. James [Kallman] is Mary Sabol[’s] husband. Mary Sabol testifped] in this case for the state against [the defendant].
      “The inspector at the time thought that [the victim] was Mary[’s] brother 'instead of her father. Mary Sabol was also questioned by members of the state[’s] attomey[’s] office regarding her knowledge of [Kallman’s] involvement in a number of other murders with me. Members of the state[’s] attorney's] offices [were] convince[d] that me and [Kallman] killed [the victim].

        “In July, 1994, I was interview[ed] by a special homicide task force in N[ew] Y[ork] and a member of [the] federal street gang task force from [Connecticut] at the state police [barrack] in [Rhode Island] about some other unsolved murders in [the New York and] New Haven area, involving [Kallman] and myself. And I told these people that [the defendant] had nothing to do with the murder of [the victim], that [Kallman] and I committed this murder.
      “I did not know that [the defendant] went to trial on this case until I heard it on the news, and [Kallman] told me that Mary testified] in this case and he didn’t let her out of his sight during the trial.
      “Everything I told you in this letter can be verified] and I’ll take a [polygraph] test on this information [also].”

       Marra’s May 12, 1995 letter includes the assertion that he had told New York and Connecticut law enforcement authorities that he and Kallman actually had murdered the victim. According to Marra’s letter, he had provided this information to police authorities “[i]n July, 1994.” See footnote 13 of this opinion. The defendant, however, was convicted of the murder in June, 1994, prior to the date Marra claims to have confessed to committing that crime himself. The defendant has not raised any claim on this appeal regarding Marra’s purported confession to the murder in his May 12, 1995 letter. Furthermore, at the hearing on the defendant’s motion for a new trial, Marra refused to answer the state’s inquiries regarding his claimed involvement in the victim’s murder, choosing instead to invoke his fifth amendment privilege against self-incrimination as to all such questions.

       Marra testified that “Solomon banged on the table [and said:] T know God damn well you killed [the victim]; I’m going to nail you for this crime; and we’re going to give you the death penalty on all these murders.’ ”

       Marra also acknowledged that, during these interviews, he neither admitted any involvement in the victim’s murder nor implicated Kallman in that crime.

       As Marra put it, “[i]n . . . Solomon’s eyes I was a suspect in shooting the pope back then.”

       In its memorandum of decision, the trial court noted that Marra “is presently serving [a prison term of] one hundred twenty years for [his] kidnapping and murder convictions.”

       Solomon testified: “I would never talk to . . . Marra unless I [was] on tape with him; and I found . . . Marra to tell hundreds of lies about things. He’s admitted to more murders than ... I can believe possible.” Solomon also stated that, on a number of occasions, Marra had confessed to murders and otherwise provided the police with information that either could not be corroborated or conflicted directly with facts already known to the police.

       Solomon also testified that Marra never admitted any involvement in the murder of the victim. See footnote 14 of this opinion.

       The defendant moved for production of the audiotapes of the police interviews with Marra and the police report concerning the burglary of Curcio’s residence.

       At trial, the defendant claimed that Meyer had murdered the victim. The defendant testified that she and the victim had been arguing in front of Meyer and that the victim had thrown the defendant to the floor and was kicking her when she heard a loud noise and the victim collapsed. The defendant expressed her opinion that Meyer had shot the victim to prevent him from harming the defendant. Conversely, Meyer testified that the defendant had killed the victim. Physical evidence and testimony by additional witnesses supported the fact that one of the two women did indeed kill the victim. Thus, as the trial court stated in its memorandum of decision, “[q]uite clearly, there were two people present with the deceased at the time of [his] murder: the defendant and [Meyer]. The jury believed [Meyer’s] testimony that her mother committed the murder; [it] rejected the defendant’s testimony that her daughter did it. There is no reasonable doubt that one of the two was the killer.”

       Although the defendant concedes that the suspicion held by Kallman and Mary Sabol that Curcio might have killed the victim conflicts with the defendant’s own trial testimony that Meyer had shot and killed the victim; see footnote 22 of this opinion; the defendant nevertheless maintains that she was entitled to the information contained in the police report regarding the burglary of Curcio’s home because that information might have led the defendant to pursue a completely different trial strategy that obviated the need for her testimony. Even if we assume, for the sake of argument, that the defendant’s claim regarding a change in trial strategy is sufficiently concrete to implicate the materiality prong of the Brady test, we nevertheless would have to reject the defendant’s claim because, as we have indicated, a mere uncorroborated suspicion that a third party might have killed the victim is simply too speculative to satisfy the materiality requirement.
      At oral argument before this court, the defendant also claimed that she might have been able to use the information contained in the police report to impeach the trial testimony of Mary Sabol. “It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused.” (Internal quotation marks omitted.) State v. McPhail, 213 Conn. 161, 167, 567 A.2d 812 (1989); see also State v. Esposito, supra, 235 Conn. 815-16. We conclude, however, that the defendant has failed to establish that this evidence reasonably could have been used for impeachment purposes. Mary Sabol was called as a witness by the defendant, and her testimony was limited to the substance of a dinner conversation that she had had with the victim shortly before his death, during which the victim had indicated that he was upset with both Meyer and the defendant. Mary Sabol was not a key witness, and her limited testimony was not particularly helpful either to the defendant or to the state. More importantly, her testimony did not touch upon any subject that could have been contradicted by any information contained in the police report of the burglary of the Curcio residence. Accordingly, we reject the defendant’s claim that that report could have aided the defendant in her examination of Mary Sabol.

       The trial court stated in relevant part as follows: “[E]ven if the court were to credit Marra’s testimony [regarding the accusations], that would not help the defendant. Even taking [Marra’s] testimony at face value, there is nothing to indicate that someone other than the defendant committed this crime. The fact that the police might have made accusations does not prove that they had any evidence. [In Marra, t]hey were dealing with a notorious criminal. Every attorney who seriously practiced criminal law knows that police investigators often bluff those they think may have information, in the hope that if they shake the tree hard enough, something may fall out. of it. The fact that no warrant was ever served on Marra regarding the [victim’s] killing corroborates the view that the police had no such evidence. Moreover, the death penalty, with which Marra claimed Solomon threatened him, was never applicable to [this] case, which . . . Solomon surely knew. The better view is that the accusation was not made. But even if it was, it is of no consequence for the purposes of this case. There is simply no evidence produced by the defense that the police suppressed evidence that someone other than the defendant committed this murder.”