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State v. Louis

Appellate Court of Connecticut

February 9, 2016

STATE OF CONNECTICUT
v.
JACQUES LOUIS

         Argued 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 court.

          SYLLABUS

         The 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.

          Held :

         1. The 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.

         2. The 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]).

         3. This 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.

         Alan Jay Black, assigned counsel, for the appellant (defendant).

         Adam E. 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 appellee (state).

         Lavine, Keller and Pellegrino, Js. LAVINE, J. In this opinion the other judges concurred.

          OPINION

          [163 Conn.App. 57] LAVINE, J.

          The 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)[1] and 53a-134 (a) (2)[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).[3] 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.

         The 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 " meter" away.

          [163 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.

         Back at 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.

         Officer 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.

         The 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 market.[4]

         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,[5] 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 probation.

         I

         The 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.[6] We do not agree.

          [163 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.[7] The defendant elected not to present any evidence.

         The 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 ...


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