Argued
April 11, 2019
Procedural
History
Information
charging the defendant with the crimes of felony murder,
robbery in the first degree, and conspiracy to commit robbery
in the first degree, brought to the Superior Court in the
judicial district of Hartford, geographical area number
fourteen, and tried to the jury before Baldini, J.;
verdict and judgment of guilty, from which the defendant
appealed. Affirmed.
Pamela
S. Nagy, assigned counsel, for the appellant (defendant).
Laurie
N. Feldman, special deputy assistant state's attorney,
with whom, on the brief, were Gail P. Hardy, state's
attorney, and David L. Zagaja, senior assistant state's
attorney, for the appellee (state).
Lavine, Elgo and Pellegrino, Js.
OPINION
PELLEGRINO, J.
The
defendant, Rashad Moon, appeals from the judgment of
conviction, rendered after a jury trial, of felony murder in
violation of General Statutes § 53a-54c, robbery in the
first degree in violation of General Statutes § 53a-134
(a) (2), and conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-48 and
53a-134 (a) (2). On appeal, the defendant claims that the
trial court improperly (1) instructed the jury on accomplice
liability, (2) failed to poll the jurors on the
defendant's affirmative defense, (3) admitted into
evidence two spent shell casings that were unconnected to the
crime, and (4) instructed the jury on conspiracy to commit
robbery in the first degree without instructing it on the
intent required for robbery in the first degree. We disagree
and, accordingly, affirm the judgment of the trial court.
On the
basis of the evidence adduced at trial, the jury reasonably
could have found the following facts. In May, 2013, the
victim, Felix DeJesus, and his fiancee´ posted two
T-Mobile Springboard tablets for sale on Craigslist. The
Craigslist posting stated that the tablets were being sold
for $300 each or $500 for both of them and included the
victim's phone number. On May 8, 2013, at approximately 7
p.m., a prospective buyer of the tablets called the victim.
The prospective buyer said that he did not have a car and
asked the victim to meet him in Hartford so that he could
purchase the tablets. The victim agreed to travel to Hartford
and, shortly after 7 p.m., the victim left his home in
Cromwell with the tablets.
At
approximately 7:45 p.m., a resident of the neighborhood where
the crime occurred, Gloria Therrien, observed the victim park
his car in front of 16 Allendale Road. From inside her home,
Therrien saw two men approach the car and stand at its
driver's side window. One of the men spoke to the victim
through the front driver's side window while the other
man stood next to him. Therrien heard a gunshot and saw the
two men run away from the car, using a cut through that
connected Allendale Road to Catherine Street. Therrien then
went outside and walked toward the victim's car. She
observed that the car windows were open and that the victim
was in the driver's seat of the car ‘‘jerking
. . . and gurgling.'' Therrien asked some children
who were nearby to call 911 and report that someone had been
shot.
The
police arrived at the scene at approximately 8 p.m. When
Jeffrey Moody, an officer with the Hartford Police Department
(department), arrived, he saw the victim's car and
noticed that its engine was running and that the victim was
inside. Moody approached the car and found the victim
unresponsive. Thereafter, emergency services took the victim
to Hartford Hospital, where he died of a single gunshot wound
to the head at approximately 3:46 a.m.
Chris
Reeder, a detective with the department, arrived at the scene
at approximately 8:30 p.m., after the victim had been taken
to Hartford Hospital. Reeder searched the interior of the
victim's car and found a T-Mobile Springboard Tablet and
a white Samsung cell phone. The police took possession of
both items.
On May
9, 2013, the police extracted data from the cell phone, which
they determined had belonged to the victim. The data
extracted from the cell phone included a series of text
messages and phone calls between the victim and a cell phone
number that belonged to Marvin Mathis, an individual who
resided near the scene of the crime. Around the time of the
murder, there were text messages between Mathis and the
victim in which Mathis instructed the victim to meet him at
16 Allen-dale Road.
That
same day, Reeder went to speak with Mathis at his home on
Allendale Road. Mathis denied having any knowledge of the
shooting and stated that he was asleep at home when the crime
occurred. Mathis also stated that he was with the defendant
from approximately 6 to 7:30 p.m. on the night of the
shooting and that while they were together, the defendant
borrowed his phone.
Mathis
allowed Reeder to view his cell phone and the text messages
on the device. The text messages on Mathis' cell phone
matched the text messages that the police had extracted from
the victim's cell phone. Mathis, however, denied sending
the messages and stated that the defendant must have sent
them. Reeder also observed that the call log on Mathis'
cell phone revealed that, at approximately the time of the
shooting, there were calls between Mathis and the defendant.
On May 8, 2013, there were calls between the defendant and
Mathis at 6:02, 7:51, 7:52 and 9:53 p.m.
On May
12, 2013, Reeder spoke with the defendant and the
defendant's girlfriend, Brittany Hegwood. Hegwood
informed the police that on the night of the shooting, she
witnessed Mathis and the defendant walk ‘‘down
Catherine Street toward Hillside [Avenue]'' together
and that when the defendant returned approximately five
minutes later he stated ‘‘[Mathis] just shot
somebody.''
The
defendant also provided the police with a statement in which
he admitted that he was with Mathis on the night of the
shooting and that he went with Mathis to meet the victim. The
defendant stated that Mathis told the defendant that he was
going to buy ‘‘some stuff'' from the
victim. The defendant further stated that he stood
approximately thirty feet away from the victim's car
while Mathis spoke with the victim through the driver's
side window. The defendant stated that he looked away from
Mathis and heard a gunshot, at which point he and Mathis ran
away from the car to the defendant's house on Catherine
Street.
As part
of their investigation, the police obtained a search warrant
for the defendant's cell phone records. The
defendant's cell phone records revealed calls between the
defendant and a phone number belonging to an individual by
the name of Jahvon Thompson on May 10 and 14, 2013.
On May
23, 2014, approximately one year after the shooting,
Thompson, who was under arrest at the time, spoke with
Reeder. Thompson informed Reeder that he and the defendant
initially had planned to rob the victim because they
‘‘were broke.'' Thompson further stated
that ‘‘a day or two'' before the crime
he, the defendant, and Mathis were together and that the
defendant was texting the victim on Mathis' phone.
Thompson stated that ultimately he did not participate in the
robbery because ‘‘something came up.''
Additionally,
in May of 2014, an individual by the name of Tyrell Hightower
left three messages on a police tip line, in which he
indicated that he had information about a homicide that had
occurred on Allendale Road one year earlier. On June 2, 2014,
Reeder met with Hightower at Hartford Correctional Center,
where Hightower was incarcerated. During the meeting,
High-tower informed Reeder that the defendant had confessed
to him that he and Mathis were involved in the murder of the
victim. Hightower further stated that the defendant had
informed him that it was a ‘‘robbery that went
bad'' and that Mathis had shot the victim.
In late
June of 2014, the police arrested the defendant. After a jury
trial, the defendant was convicted of felony murder, robbery
in the first degree, and conspiracy to commit robbery in the
first degree. The court sentenced the defendant to a total
effective sentence of forty-nine years of incarceration. This
appeal followed. Additional facts and procedural history will
be set forth as necessary.
I
The
defendant first claims that ‘‘[t]he trial court
committed harmful error when, for the first time during
deliberations, [in response to a question from the jury] it
instructed the jurors that [the] defendant could be convicted
of robbery even if another person was the one to use force .
. . .'' The defendant argues that the court's
supplemental instruction suggested a verdict in favor of the
state, deprived him of the opportunity to defend against this
theory of liability and violated his right to have the jurors
properly instructed on the law. We disagree.
We
begin with the applicable standard of review and the legal
principles relevant to this claim. ‘‘[I]ndividual
jury instructions should not be judged in artificial
isolation . . . but must be viewed in the context of the
overall charge. . . . The pertinent test is whether the
charge, read in its entirety, fairly presents the case to the
jury in such a way that injustice is not done to either party
under the established rules of law. . . . Thus, [t]he whole
charge must be considered from the standpoint of its effect
on the [jurors] in guiding them to the proper verdict . . .
and not critically dissected in a microscopic search for
possible error. . . . Accordingly, [i]n reviewing a
constitutional challenge to the trial court's
instruction, we must consider the jury charge as a whole to
determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we must
consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and ample
for the guidance of the jury. . . . A challenge to the
validity of jury instructions presents a question of law over
which [we have] plenary review.'' (Internal quotation
marks omitted.) State v. Berrios, 187 Conn.App. 661,
705-706, 203 A.3d 571, cert. denied, 331 Conn. 917, 204 A.3d
1159 (2019). This standard of review also applies to
supplemental instructions. State v. Miller, 36
Conn.App. 506, 515, 651 A.2d 1318, cert. denied, 232 Conn.
912, 654 A.2d 357 (1995).
Practice
Book § 42-27 provides: ‘‘If the jury, after
retiring for deliberations, requests additional instructions,
the judicial authority, after providing notice to the parties
and an opportunity for suggestions by counsel, shall recall
the jury to the courtroom and give additional instructions
necessary to respond properly to the request or to direct the
jury's attention to a portion of the original
instructions.''
The
following additional facts and procedural history are
relevant to this claim. Count two of the information charging
the defendant alleged: ‘‘[O]n or about May 8,
2013 at 8:00 p.m. on Allendale Road in Hartford . . . while
in the course of the commission of a robbery and in immediate
flight therefrom, [the defendant] or another participant in
the crime was armed with a deadly weapon.''
During
closing argument, the state argued that the defendant was one
of the two participants in the robbery and that it was
legally irrelevant whether he or Mathis shot the victim. The
prosecutor stated: ‘‘The one issue you have to
analyze . . . is was [the defendant] a participant in the
robbery . . . .''
After
closing arguments, the court instructed the jury on the law
relevant to the case, including the charge of robbery in the
first degree.[1] The court began its instruction on robbery
in the first degree by providing: ‘‘The defendant
is charged in count two with robbery in the first degree in
violation of General Statutes § 53a-134 (a) (2). The
statute defining this offense reads in pertinent part as
follows: A person is guilty of robbery in the first degree
when in the course of the commission of the crime of robbery,
or immediate flight therefrom, he, or another participant in
the crime, is armed with a deadly weapon.''
The
court stated the following with regard to the elements of
robbery: ‘‘[T]he following are elements of
robbery: (a) that the defendant was committing a larceny; (b)
that the larceny was accomplished by the use, or threatened
immediate use, of physical force upon another person; (c) for
the purpose of preventing or overcoming resistance to the
taking of the property, or to the retention thereof
immediately after the taking, or compelling the owner of such
property or another person to deliver up the
property.''[2]
Under
the heading ‘‘(b) Use or Threat of Use of
Physical Force, '' the court provided:
‘‘The second element of robbery is that the
larceny was accomplished by the use or threatened use of
physical force.''[3]
Under
the heading ‘‘conclusion, '' the court
provided: ‘‘In summary, the state must prove
beyond a reasonable doubt the following elements of robbery
in the first degree: (1) the defendant was committing a
larceny, and (2) that he used physical force or threatened
the use of physical force for the purpose of preventing or
overcoming resistance to the taking of property or to the
retention of property immediately after the taking or
compelling the owner of the property or another person to
deliver up the property or to engage in other conduct that
aids in the commission of larceny; and (3) that in the course
of the commission of the robbery or immediate flight from the
crime, the defendant or another participant in the crime was
armed with a deadly weapon.''[4] (Emphasis added.)
The
court provided the jurors with a paper copy of the jury
instructions for their use during deliberations. During
deliberations, the jury sent the court the following note:
‘‘Does ‘the use or threat of use of
physical force' element of robbery in the first degree
require a finding that the defendant personally used or
threatened the use of force or is it sufficient as to the
‘use or threat of ...