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State v. Harper

Court of Appeals of Connecticut

August 7, 2018

STATE OF CONNECTICUT
v.
MARQUIS J. HARPER

          Argued April 17, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of conspiracy to commit robbery in the first degree and attempt to commit robbery in the first degree as an accessory, brought to the Superior Court in the judicial district of New Haven and tried to the jury before the court, Alander, J.; thereafter, the trial court granted a motion for a judgment of acquittal as to the conspiracy count; verdict and judgment of guilty of attempt to commit robbery in the first degree as an accessory, from which the defendant appealed to this court. Affirmed.

          Temmy Ann Miller, assigned counsel, with whom, on the brief, was Owen Firestone, for the appellant (defendant).

          Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and John P. Doyle, Jr., senior assistant state's attorney, for the appellee (state).

          Alvord, Elgo and Pellegrino, Js.

          OPINION

          ELGO, J.

         The defendant, Marquis J. Harper, appeals from the judgment of conviction, rendered after a jury trial, of one count of attempt to commit robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a), 53a-49 (a) (2) and 53a-134 (a) (2). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to sustain his conviction and (2) the court improperly declined to furnish a jury unanimity instruction requested by the defendant. We disagree and, accordingly, affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant, Kevin Blackman, Marquis Winfrey, and Anthony Carmichael were smoking marijuana together in Hamden on the evening of July 1, 2010. When they later discussed how to obtain more marijuana, the defendant proposed robbing the victim, John Belcher. The defendant assured the others that the victim had marijuana at his residence.[1]

         At that time, the four individuals were inside the defendant's vehicle. The defendant then placed a telephone call to the victim and confirmed that he was home. During that call, the defendant identified himself to the victim, who had never received a telephone call from the defendant. When that brief conversation concluded, the defendant drove his vehicle toward the victim's residence. Carmichael was seated in the front passenger seat, while Blackman and Winfrey were in the back of the vehicle.

         The defendant parked his vehicle on Fawn Ridge Drive in Hamden, a dead end street 986 feet from the victim's residence. He positioned his vehicle on a corner pointed in the direction of Woodin Street; to do so, the defendant had to turn around his vehicle on that dead end street. The defendant, at that time, informed the others that he ‘‘just was the driver'' and would stay with the vehicle.

         While the defendant remained in the vehicle, Black-man, Winfrey, and Carmichael exited and walked to the victim's residence. Blackman and Winfrey wore black masks that concealed everything but their eyes. Black-man also wore what Winfrey testified was a ‘‘White Sox hat'' and carried a firearm as he approached the residence. Kevin Russell, a friend of the victim, was exiting the residence as the men arrived. From his kitchen, the victim watched as a masked individual approached and began ‘‘tussling back and forth'' with Russell. The victim came outside and noticed that the assailant was holding a gun. As he looked for an object to strike him with, the victim saw ‘‘a flash and [heard] a loud noise'' and then fell face down to the ground. The victim sustained a gunshot wound to the neck, which ultimately left him paralyzed from the chest down. Attrial, Winfrey testified that he witnessed Black-man shoot the victim.

         The assailants immediately fled the scene. Carmichael returned to the defendant's waiting car and the defendant began to drive away. The defendant also picked Blackman up as he was leaving the area and drove him home. Winfrey, who lived nearby on Fawn Ridge Drive, ran home on foot.

         During their criminal investigation, the police recovered a Chicago White Sox baseball cap from the scene of the crime. Subsequent testing at the state forensic laboratory confirmed the presence of DNA belonging to Blackman on the cap. Blackman thereafter was arrested and charged with various crimes stemming from his involvement in the attempted robbery.[2] Winfrey also was arrested after the police learned of his alleged involvement in that incident. While in police custody, Winfrey provided a statement admitting his involvement therein. Winfrey, at that time, indicated that the defendant, Blackman, and Carmichael also were involved.[3]

         When the police interviewed the defendant, he initially denied having any involvement in the attempted robbery and asked ‘‘who made a statement against him, what was said in the statement, and what other evidence [the police] had to implicate his involvement.'' Approximately thirty-seven minutes into that interview, the defendant admitted that he had driven Blackman, Winfrey, and Carmichael to Fawn Ridge Drive, but maintained that he did so ‘‘without knowledge of what was going to happen.''

         The defendant was arrested and charged with conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2) and attempt to commit robbery in the first degree as an accessory in violation of §§ 53a-8 (a), 53a-49 (a) (2) and 53a-134 (a) (2). A jury trial followed. After the state rested its case-in-chief, the defendant moved for a judgment of acquittal on the conspiracy count, claiming that the evidence was insufficient because there was no evidence, direct or circumstantial, that the defendant had agreed or intended that his coconspirators would use a firearm during the robbery. See State v.Pond, 315 Conn. 451, 489, 108 A.3d 1083 (2015). In response, the state conceded that although a firearm was used in the attempted robbery of the victim, ‘‘there wasn't any evidence that [the defendant] knew that there was a firearm present.'' The court agreed with the defendant, stating that because no such evidence was introduced at trial, the jury could not reasonably find ...


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