November 30, 2015.
Substitute information charging the defendant with the crimes
of robbery in the first degree, conspiracy to commit robbery
in the first degree, robbery in the second degree and
conspiracy to commit robbery in the second degree, brought to
the Superior Court in the judicial district of Fairfield and
tried to the jury before Thim, J.; verdict and judgment of
guilty of conspiracy to commit robbery in the first degree
and conspiracy to commit robbery in the second degree;
thereafter, the court denied the defendant's motion for a
judgment of acquittal, and the defendant appealed to this
defendant was convicted, after a jury trial, of conspiracy to
commit robbery in the first degree and conspiracy to commit
robbery in the second degree. The defendant's conviction
stemmed from an incident in which he and three conspirators,
J, T, and B, robbed the victim, the owner of a store. The
defendant claimed at trial that he and B were merely present
when J acted alone and threatened the victim with a gun. When
the police arrived, they found B behind the wheel of a
vehicle in front of the store, the defendant and T were
passengers, and J was fleeing the scene on foot. Following
both the close of the state's case and the jury's
guilty verdict, the trial court denied the defendant's
motions for judgment of acquittal challenging the sufficiency
of the evidence. The court merged the conspiracy convictions
and rendered judgment thereon, from which the defendant
appealed to this court.
defendant could not prevail on his claim that the trial court
improperly denied his motions for judgment of acquittal in
which he challenged the sufficiency of the evidence: contrary
to the defendant's claim that no one identified him as
having been present in the store during the robbery, the
victim testified that four men entered the store and
identified T and B by name, it was undisputed that J was the
third man who carried the gun and fled on foot, and a police
officer testified that the defendant was among the three men
she found in the vehicle in front of the store when she
arrived on the scene shortly after the robbery, such that the
jury could have found beyond a reasonable doubt that the
defendant was the fourth man who entered the store; moreover,
the jury did not have to resort to speculation or conjecture
to find that the defendant agreed with the others to commit
the robbery, as the state proved beyond reasonable doubt that
J was armed with a deadly weapon when he threatened the use
of force to compel the victim to give J money and that he was
aided by other persons, including the defendant, who stood
beside the victim when J demanded money, such that there was
sufficient evidence by which the jury could have found that
the defendant agreed with the others to rob the victim.
defendant's unpreserved claim that the trial court
improperly failed to instruct the jury that it must find that
he had the specific intent that the robbery would involve the
display or threatened use of a deadly weapon failed under the
third prong of State v. Golding (231 Conn. 233, 647
A.2d 342), as the alleged constitutional violation concerning
an essential element of the crime did not exist; the trial
court's instructions properly guided the jury to consider
the issues when it instructed that the defendant intended
that the conduct constituting robbery in the first degree be
performed and the coconspirators understood that a
participant in the crime was armed with a deadly weapon in
violation of statute (§ § 53a-48 [a] and 53a-134
[a]), and that the defendant intended that the conduct
constituting robbery in the second degree be performed and
the coconspirators understood that the person who took the
property would be aided by another person actually present in
violation of statute (§ 53a-48 [a] and [Rev. to 2011]
§ 53a-135 [a]).
court found unavailing the defendant's claim that his
right to due process was violated because the prosecutor
allegedly argued facts not in evidence during his rebuttal
argument by stating that four men, including the defendant
and B, had robbed the victim; the prosecutor's statements
fairly summarized the testimony of eyewitnesses and the jury
was presumed to have followed the trial court's
instruction that the jury's recollection of the facts
controlled and not the facts that counsel may have argued.
Jay Black, assigned counsel, for the appellant (defendant).
Mattei, assistant state's attorney, with whom, on the
brief, were John C. Smriga, state's attorney, and Joseph
P. Harry, senior assistant state's attorney, for the
Keller and Pellegrino, Js. LAVINE, J. In this opinion the
other judges concurred.
Conn.App. 57] LAVINE, J.
defendant, Jacques Louis, appeals from the judgment of
conviction, rendered after a jury trial, of one count of
conspiracy to commit robbery in the first degree with a
deadly weapon in violation of General Statutes § §
53a-48 (a) and 53a-134 (a) (2) and [163
Conn.App. 58] one count of conspiracy to commit robbery in
the second degree in violation of § 53a-48 and General
Statutes (Rev. to 2011) § 53a-135 (a) (1). On appeal,
the defendant claims that the trial court improperly (1)
denied his motions for judgment of acquittal and (2) charged
the jury with respect to conspiracy in violation of State
v. Pond, 315 Conn. 451, 108 A.3d 1083 (2015), and that
(3) the prosecutor denied him a fair trial by arguing facts
not in evidence. We affirm the judgment of the trial court.
jury reasonably could have found the following facts. On
December 28, 2011, at approximately 8:15 p.m., the defendant,
Jean Barjon, Tinesse Tilus, and Guailletemps Jean-Philippe
(conspirators) together entered the Caribbean-American Market
(market) on Wood Avenue in Bridgeport. They called for the
owner, Rene Adolph, who was in the kitchen cooking, to come
out. Adolph recognized Tilus and Barjon, but not the
defendant and Jean-Philippe, who stood on either side of him.
The conspirators demanded money from Adolph, and
Jean-Philippe displayed a firearm. Adolph, fearing for his
life, ran from the market to the laundry next door and called
out for help. The defendant, Barjon, and Tilus chased Adolph,
who held the door to the laundry closed as the defendant
attempted to open it. Margarita Avcolt, a laundry employee,
observed the activity, and telephoned the police. She saw one
man trying to open the door and two others standing a "
Conn.App. 59] Meanwhile, Jean-Philippe, who had remained in
the market, walked into the walled-in area occupied by the
cashier, Ramon Tavares. Jean-Philippe displayed his gun and
ordered Tavares to give him money. Jean-Philippe took the
money Tavares gave him, as well as his phone.
the laundry, Adolph saw a police cruiser passing by so he ran
out and flagged down Officer Elizabeth Santoro. The three
conspirators, who had followed Adolph to the laundry, ran and
got into a car. Adolph pointed to the three conspirators in
the car, who were getting ready to " take off."
Adolph told Santoro that the men had tried to rob him. He
also pointed to Jean-Philippe who by that time was running
away from the market on Wood Avenue. Adolph saw him "
toss the gun." Santoro was able to detain Jean-Philippe,
and told Barjon, the driver of the car not to move. Tilus and
the defendant were passengers in the car. According to
Santoro, all of the conspirators were dressed in suits as if
they were going somewhere.
Christopher Martin arrived on the scene as backup for
Santoro. Martin seized $635 from Jean-Philippe and found a
loaded, operable firearm that Jean-Philippe had discarded
near a trash receptacle. A firearms expert, Marshall
Robinson, examined the gun that Martin recovered and the
casings it ejected when fired. As part of his investigation,
Robinson learned that the gun had been used to fire
cartridges in an incident in New Jersey. Both the defendant
and Jean-Philippe were from New Jersey.
defendant and Barjon were each charged with robbery in the
first degree, conspiracy to commit robbery in the first
degree, robbery in the second degree, and conspiracy to
commit robbery in the second degree and stood trial together.
The defendant's theory of defense was that he was "
merely present" at the time [163 Conn.App. 60] of the
robbery and that Adolph's testimony was not believable.
Barjon also claimed that he merely was present at the time of
the robbery, that Adolph was not credible, and that
Jean-Philippe acted alone in order to collect an unpaid debt
from Adolph, who allegedly ran an illegal lottery from the
jury was unable to reach a unanimous verdict with respect to
the charges of robbery in the first degree and robbery in the
second degree against the defendant, but the jury found
him guilty of conspiracy to commit robbery in the first and
second degree. At sentencing, the court merged the conspiracy
convictions and sentenced the defendant to twelve years in
prison, suspended after six years, and five years of
defendant claims that the court violated his right to due
process by denying his (1) motion for a judgment of acquittal
at the close of the state's case and (2) motion for
judgment of acquittal notwithstanding the jury's verdict.
He claims that there is no evidence that he was present in
the market where the robbery occurred, and therefore, the
court should not have permitted the case to go to the jury.
He also argues that there is no evidence that he agreed to
rob Adolph and that he intended to commit robbery in either
the first or second degree, specifically to display or
threaten the use of a deadly weapon in the case of conspiracy
to commit robbery in the second degree. We do not agree.
Conn.App. 61] The following additional procedural history is
relevant to the defendant's claim. After the state
rested, the defense counsel, Charles Kurmay, moved for a
judgment of acquittal, claiming that there was insufficient
evidence that the defendant was present when Jean-Philippe
took money from Tavares and no evidence that the defendant
agreed to commit a robbery. The court denied the motion
stating that Adolph's testimony alone was sufficient for
the jury to find the defendant guilty. The defendant
elected not to present any evidence.
jury found the defendant guilty of conspiracy to commit
robbery in the first and in the second degree. Prior to
sentencing, the defendant filed a " motion for judgment
of acquittal after mistrial" on the charge of robbery in
the first degree on the ground of insufficient evidence. He
also sought a judgment of acquittal notwithstanding the
verdict on the ground that there was insufficient evidence ...