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STATE OF CONNECTICUT v. ALBERTO VASQUEZ
(AC 30889)
DiPentima, C. J., and Gruendel and Bear, Js.
Argued November 8, 2011âofficially released February 28, 2012
(Appeal from Superior Court, judicial district of
Tolland, Solomon, J.)
Christine Perra Rapillo, executive assistant public
defender, for the appellant (defendant).
Emily Graner Sexton, special deputy assistant stateâs
attorney, with whom, on the brief, was Matthew G.
Gedansky, stateâs attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Alberto Vasquez, appeals
from the judgment of conviction, following a jury trial,
of robbery in the third degree in violation of General
Statutes § 53a-136 and conspiracy to commit robbery
in the third degree in violation of General Statutes
§§ 53a-48 (a) and 53a-136. The defendant claims that
the trial court improperly (1) denied his motion for a
judgment of acquittal, (2) instructed the jury (a) by
refusing to give his requested instruction regarding
accomplice testimony, (b) with respect to his alibi
defense, (c) regarding consciousness of guilt evidence
and (d) by failing to provide a unanimity instruction, (3)
denied his motion for a mistrial based on prosecutorial
impropriety and (4) denied his motion to suppress his
statement to the police. We affirm the judgment of the
trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of this appeal. At some point prior to the early
morning of October 17, 2006, the defendant devised a
plan to rob the Mr. Sparkle carwash in the Rockville
section of Vernon (carwash). The defendant enlisted
the help of his friend, Jose Bultron, and his brother,
Angelo Vasquez, to execute his plan. Bultron was familiar with the layout of the carwash and its employees,
having worked previously at another Mr. Sparkle
facility.
On the morning of October 17, 2006, Bultron and
Angelo Vasquez entered the carwash office while the
defendant waited in his vehicle on an adjacent street,
outside of view. Once inside, Bultron grabbed the sole
carwash employee on duty at the time, Gregory Havens,
and placed him under guard in a bathroom. Bultron
warned Havens that if he moved or tried anything, Bultronâs ââboyââ would shoot. After taking money from the
register, Bultron and Angelo Vasquez left the carwash.
Outside, they entered the defendantâs waiting vehicle
and, with the defendant driving, fled the area.
The defendant became a suspect during the subsequent police investigation. On March 28, 2007, the police
approached Bultronâs former girlfriend, Eileen Vasquez,
and asked her to contact the defendant.1 The police
recorded her telephone conversation with the defendant, during which he admitted to having planned the
carwash robbery and referred to the crime as ââmotherfuckinâ armed robbery.ââ
Approximately six months after the robbery, on April
11, 2007, the police executed a warrant for the defendantâs arrest at his Hartford home. The police posted
officers at the front and back of the home and entered
it after speaking with a female occupant. A subsequent
search of the home uncovered the defendant hiding in
a bedroom closet. The defendant thereafter was trans-
ported to the Vernon police station for questioning.
After initially denying participation in the robbery, the
defendant conceded his involvement in ââthe Rockville
stick upââ as a getaway driver.
The defendant was charged in a three count substitute information with robbery in the first degree in
violation of General Statutes § 53a-134 (a) (4), robbery
in the first degree as an accessory in violation of General
Statutes §§ 53a-8 and 53a-134 (a) (4) and conspiracy to
commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4). On October 14, 2008, after the close of the stateâs evidence, the
defendant moved for a judgment of acquittal, arguing
that the state had failed to prove his requisite mental
state for the crimes charged. The court denied the
motion.
The jury subsequently returned a verdict finding the
defendant guilty of the lesser included offenses of robbery in the third degree and conspiracy to commit robbery in the third degree, and the court rendered
judgment accordingly. On February 19, 2009, the defendant was sentenced to a total effective term of ten years
incarceration, execution suspended after eight years
and nine months, followed by three years of probation.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the court improperly
denied his motion for a judgment of acquittal. Specifically, the defendant argues that the state failed to prove
that he used or agreed to use a weapon in the commission of the robbery, which was an essential element of
each of the crimes for which he had been charged.
Because we determine that the defendant was not
aggrieved by the courtâs denial of his motion, we decline
to review this claim.
ââ[P]roof of aggrievement is . . . an essential prerequisite to the courtâs jurisdiction of the subject matter
of the appeal. . . . Ordinarily, a party that prevails in
the trial court is not aggrieved.ââ (Internal quotation
marks omitted.) State v. Sanders, 86 Conn. App. 757,
763â64, 862 A.2d 857 (2005). ââThe test of aggrievement
is whether a party claiming aggrievement can demonstrate a specific personal and legal interest in the subject matter of the courtâs decision and whether that
interest has been specially and injuriously affected by
the decision.ââ State v. Talton, 209 Conn. 133, 137, 547
A.2d 543 (1988).
In claiming that the court improperly denied his
motion for a judgment of acquittal on the charges of
robbery in the first degree, robbery in the first degree
as an accessory and conspiracy to commit robbery in
the first degree, the defendant contends that ââthe state
presented no evidence . . . to support a finding that
the use of a weapon in the course of the robbery was
part of the agreement between [the defendant] and . . .
Bultron . . . .ââ The defendant, however, was not convicted of any of those offenses but, ultimately, was
convicted of the lesser included offenses of robbery in
the third degree and conspiracy to commit robbery
in the third degree. Neither of those lesser included
offenses requires evidence of an agreement to use a
weapon. The defendant does not contest the sufficiency
of the evidence supporting the lesser included offenses
of which he was convicted. Instead, he predicates his
claim solely on the issue of lack of evidence of an
agreement to use a weapon.2 Accordingly, we decline
to review the defendantâs claim because his appeal challenges the sufficiency of the evidence as to offenses
for which he ultimately was acquitted.3 See State v.
DâHaity, 99 Conn. App. 375, 391, 914 A.2d 570, cert.
denied, 282 Conn. 912, 924 A.2d 137 (2007); see also
State v. Hampton, 293 Conn. 435, 444 n.7, 988 A.2d 167
(2009); State v. Sweeney, 104 Conn. App. 582, 591 n.4,
935 A.2d 178 (2007).
II
The defendant next claims that the court improperly
instructed the jury. Specifically, he contends that the
court erred in (1) refusing to give the jury his requested
instruction regarding accomplice testimony, (2)
instructing the jury on his alibi defense, (3) instructing
the jury regarding consciousness of guilt evidence and
(4) failing to provide a unanimity instruction. In addition, the defendant claims that the cumulative effect of
the courtâs erroneous instructions deprived him of a
fair trial. We disagree with the defendant and will
address his claims in turn.
As a preliminary matter, we set forth the standard
of review applicable to our analysis of jury instructions.
ââThe standard of review for claims of instructional
impropriety is well established. [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 courtâs
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.ââ (Internal quotation
marks omitted.) State v. Flores, 301 Conn. 77, 93, 17
A.3d 1025 (2011).
A
First, the defendant claims that the court improperly
failed to provide the jury his requested instruction on
accomplice testimony. The defendant contends that he
was entitled to have the jury instructed specifically that
it could consider Bultronâs possible interest in obtaining
a benefit from the state in exchange for his testimony.
The defendant argues that by ââfailing to instruct on
the accompliceâs motive to lie, the court violated the
defendantâs right to due process and a fair trial.ââ We
are not persuaded.
The following additional facts are relevant to the
defendantâs claim. At trial, Bultron provided testimony
implicating the defendant in the robbery, including testimony that the defendant was involved in planning the
crime and had driven the getaway car. The defendant
requested subsequently that the court instruct the jury
that Bultron had been sentenced to a long prison term
and, accordingly, may have been motivated to lie to
curry favor with the prosecutor and to receive a sentence modification.4 At the charging conference, the
court concluded that a specific instruction highlighting
Bultronâs alleged interest in a sentence modification
would not be warranted under the evidence presented,
where Bultron was ââa sentenced prisoner with no offers
from the state.ââ
In its charge to the jury on the issue of accomplice
testimony, the court stated: ââ[Y]ou heard testimony
from a witness who, by his own testimony, participated
in the criminal conduct charged in this case. Such a
witness is known in the law as an accomplice. In this
case the accomplice is . . . Bultron. In weighing the
testimony of an accomplice who is a self-confessed
criminal you should consider that fact.
ââIt may be that you would not believe a person who
has committed a crime as readily as you would believe
a person of good character. The amount of moral wrong
involved in the participation of the witness in the crime
should be weighed.
ââTherefore, you must look with particular care at
the testimony of an accomplice and scrutinize it very
carefully before you accept it. There are many offenses
that are of such a character that the only persons capable of giving useful testimony are those who are themselves implicated in the crime. It is for you to decide
what credibility you will give to a witness who has
admitted his involvement in criminal wrongdoing.
ââWhether you will believe or disbelieve the testimony
of a person who by his own admission has committed
or contributed to the crime charged by the state. Like
all other questions of credibility this is a question you
must decide based on all the evidence presented to
you.ââ
Additionally, the court provided the following
instruction regarding the credibility of witnesses generally: ââIn deciding what the facts are you must consider
all of the evidence. In doing this you must decide which
testimony to believe and which testimony not to believe.
You may believe all, none or any part of any witnesses testimony.
ââIn making that decision you may take into account
a number of factors including . . . did the witness have
any personal, financial, professional or other interest
in the outcome of this case or any bias or prejudice
concerning any party or any matter involved in this
case.ââ
ââGenerally, a [criminal] defendant is not entitled to
an instruction singling out any of the stateâs witnesses
and highlighting his or her possible motive for testifying
falsely. . . . This court has held, however, that a special credibility instruction is required for three types of
witnesses, namely, complaining witnesses, accomplices
and jailhouse informants.ââ (Citation omitted; internal
quotation marks omitted.) State v. Diaz, 302 Conn. 93,
101â102, 25 A.3d 594 (2011). ââWith regard to accomplice
witnesses, we have stated that, [w]here it is warranted
by the evidence, it is the courtâs duty to caution the
jury to scrutinize carefully the testimony if the jury
finds that the witness intentionally assisted in the commission, or if [he] assisted or aided or abetted in the
commission, of the offense with which the defendant
is charged. . . . [I]n order for one to be an accomplice
there must be mutuality of intent and community of
unlawful purpose. . . .
ââWith respect to the credibility of accomplices, we
have observed that the inherent unreliability of accomplice testimony ordinarily requires a particular caution
to the jury [because] . . . [t]he conditions of character
and interest most inconsistent with a credible witness,
very frequently, but not always, attend an accomplice
when he testifies. When those conditions exist, it is
the duty of the [court] to specially caution the jury.ââ
(Citations omitted; internal quotation marks omitted.)
State v. Patterson, 276 Conn. 452, 468, 886 A.2d 777
(2005). An accompliceâs possible interest in favorable
treatment previously has been held to constitute a condition of character and interest justifying an accomplice
witness charge. See State v. Brown, 187 Conn. 602,
613, 447 A.2d 734 (1982); State v. Ruth, 181 Conn. 187,
195â96, 435 A.2d 3 (1980).
This is not a case where the court failed to provide
any instruction specifically cautioning the jury regarding an accompliceâs motives or interests. Compare State
v. Santiago, 103 Conn. App. 406, 417, 931 A.2d 298 (trial
courtâs failure to give accomplice instruction harmless
under plain error analysis), cert. denied, 284 Conn. 937,
937 A.2d 695 (2007). With respect to the defendantâs
claim of Bultronâs alleged interest in favorable treatment as a result of his testimony, we note that, as of
the date of the trial, there was no evidence that the
state had provided or offered to provide him with any
cooperation or recommendation concerning a sentence
modification or that any motion for a sentence modification had been filed. Moreover, in declining to provide
the defendantâs specific requested charge, the court
noted that Bultron already had been sentenced for his
involvement in the robbery. Additionally, defense counsel questioned Bultron extensively regarding his potential interest in favorable state treatment during crossexamination.
Reviewing the charge as a whole, we conclude that
the jury was cautioned adequately regarding the possible unreliability of Bultronâs testimony. The court
explained to the jury that they must look at Bultronâs
testimony ââwith particular careââ and ââscrutinize it very
carefully.ââ In addition, the court noted that the jury
should consider the fact that Bultron is a self-confessed
criminal when weighing his testimony. Furthermore,
the court admonished the jury that it should consider
possible personal interests of witnesses generally in
weighing their testimony.
ââThe fact that the charge did not follow precisely
that requested by the defendant does not constitute
error where the point is covered fairly in the charge.ââ
State v. Estep, 186 Conn. 648, 653, 443 A.2d 483 (1982).
Here, the court described Bultron as an accomplice and
ââself-confessed criminal,ââ and it expressly cautioned
the jury, inter alia, to ââlook with particular care at the
testimony of an accomplice and scrutinize it very carefully before you accept it.ââ Additionally, the court
instructed the jury that in making its decision to decide
which testimony to believe and which testimony not to
believe the jury could ââtake into account a number of
factors including . . . did the witness have any personal, financial, professional or other interest in the
outcome of this case or any bias or prejudice concerning
any party or any matter involved in this case.ââ Accordingly, we conclude that the court did not err in failing
to provide the specific instruction requested by the
defendant. Cf. State v. Colon, 272 Conn. 106, 227â28, 864
A.2d 666 (2004) (failure to give requested accomplice
charge not improper where evidence was insufficient
that witness was accessory and court gave general
instruction highlighting witnessesâ potential biases and
motives), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163
L. Ed. 2d 116 (2005).
B
Second, the defendant claims that the court improperly instructed the jury as to the stateâs burden of proof
regarding his alibi defense. In particular, the defendant
contends that the trial courtâs characterization of alibi
evidence as âârebuttalââ evidence, coupled with its failure
to instruct the jury that the state needed to disprove
his alibi beyond a reasonable doubt, improperly diluted
the burden of proof necessary for a conviction. We do
not agree.
ââ[W]here an alibi is asserted and relied upon as a
defense, the accused is entitled to have the jury
instructed that the evidence offered by him upon that
subject is to be considered by [it] in connection with
all the rest, in determining whether he was present, and
if a reasonable doubt upon that point exists, it is [its]
duty to acquit.ââ (Internal quotation marks omitted.)
State v. Milardo, 224 Conn. 397, 407, 618 A.2d 1347
(1993).
The court charged the jury on the issue of the defendantâs alibi defense as follows: ââ[T]he defendant has
presented evidence that he was at home on Alden Street
in Hartford at the time of this offense. This is what is
commonly known as an alibi defense. This is a rebuttal
by the defendant of the stateâs attempt to prove that
the defendant was present at the scene of the crime
and committed or participated in the acts charged.
ââIt is up to the state to prove the defendantâs guilt
beyond a reasonable doubt which includes all of the
elements of a crime including the defendantâs presence
at a stated place and the defendantâs committing or
participating in certain acts at that place at a given
time. The alibi evidence that the evidence hasâthat
the defendant has placed before you seeks to convince
you that the defendant was elsewhere at the time and,
therefore, could not possibly have committed the
acts charged.
ââWhether the defendant was or was not present at
the scene of the crime and therefore could or could
not have done what the defendant has been charged
with doing is for you to decide considering all of the
facts in the case. Remember the defendant does not
have to prove his claim that he was elsewhere.
ââIt is sufficient if on considering all of the evidence
there arises in your minds a reasonable doubt as to the
defendantâs presence at the scene of the crime when
it was committed. If you have such a doubt then the
defendant is entitled to be found not guilty.ââ
ââ[T]he trial court was not required to instruct the
jury explicitly that the state must disprove his alibi
defense beyond a reasonable doubt.ââ State v. Milardo,
supra, 224 Conn. 407. Reviewing the charge as a whole,
we conclude that the instruction on the issue of the
defendantâs alibi defense was not improper. Specifically, the court noted that the state must ââprove the
defendantâs guilt beyond a reasonable doubt . . .
including the defendantâs presence at a stated place
. . . .ââ Moreover, the court instructed the jury that ââthe
defendant does not have to prove his claim that he
was elsewhere.ââ
We do not parse individual elements of a jury charge
in an attempt to manufacture error. State v. Flores,
supra, 301 Conn. 93. Rather, we examine the charge as
a whole to determine the practical effect the language
had on the jury. The charge on the defendantâs alibi
defense was sufficiently correct in law, adequately
guided the jury and was appropriately adapted to the
issues of the present matter. Moreover, the court did
not err in characterizing the defendantâs alibi evidence
as a âârebuttalââ of the stateâs evidence. See State v.
Evans, 205 Conn. 528, 537, 534 A.2d 1159 (1987) (ââ[a]libi
evidence, although commonly called a defense, is
merely a rebuttal of the stateâs evidenceââ [internal quotation marks omitted]), cert. denied, 485 U.S. 988, 108
S. Ct. 1292, 99 L. Ed. 2d 502 (1988).
C
Third, the defendant claims that the court improperly
instructed the jury that it could consider certain evidence as consciousness of guilt. Specifically, he argues
that the court should not have instructed the jury that
it could consider his act of hiding in his daughterâs
closet when the police entered his home pursuant to
an arrest warrant as evidence of flight and thus consciousness of guilt. Moreover, the defendant argues that
the court improperly instructed the jury that it could
consider his statements concerning his whereabouts on
the day of the crime as evidence of consciousness of
guilt if it determined such statements were false. We
disagree.
The police executed a warrant for the defendantâs
arrest in April, 2007, nearly six months after the commission of the robbery. After posting officers at the front
and back of the defendantâs Hartford home, the police
knocked on the front door. An occupant of the home
informed the police that the defendant was not present.
A subsequent search of the home uncovered the defendant hiding in his daughterâs bedroom closet.
With regard to his presence in his daughterâs closet
when the police executed a warrant for his arrest, the
defendant argues that ââthe totality of the evidence does
not support that the behavior displayed consciousness
of guilt for the crimes charged.ââ The defendant notes
that the police executed the arrest warrant several
months after the underlying crime and that ââ[t]here was
no actual evidence that he was hiding [from the police]
in the closet, just that he was removed from the closet
by the police.ââ
We review a trial courtâs decision to give a consciousness of guilt instruction under an abuse of discretion
standard. State v. Luther, 114 Conn. App. 799, 817, 971
A.2d 781, cert. denied, 293 Conn. 907, 978 A.2d 1112
(2009). ââEvidence that an accused has taken some kind
of evasive action to avoid detection for a crime, such
as flight, concealment of evidence, or a false statement,
is ordinarily the basis for a [jury] charge on the inference
of consciousness of guilt.ââ (Internal quotation marks
omitted.) State v. Mack, 129 Conn. App. 127, 134, 19 A.3d
689, cert. denied, 302 Conn. 908, 23 A.3d 1245 (2011).
Here, there was evidence from which a jury could
infer that the defendant sought to evade capture by the
police for his involvement in the carwash robbery. The
defendant had been questioned by the police concerning the robbery on multiple occasions prior to his arrest.
Additionally, the defendant had spoken with Eileen Vasquez concerning his involvement in the robbery a few
weeks before his arrest. In executing the arrest warrant
at the defendantâs home, the police posted officers at
the front and rear of the home, knocked loudly on the
front door and entered after speaking with a female
occupant. A subsequent search of the home uncovered
the defendant, who had been concealed in a closet in
his daughterâs bedroom.
Even if the defendantâs presence in the closet at the
time of the police search could be susceptible to an
innocent explanation, we require only that there be
relevant evidence to support a consciousness of guilt
instruction. See State v. Luther, supra, 114 Conn. App.
818 (ââ[a]lthough the evidence might support an innocent explanation as well as an inference of guilt, the
only requirement is that the evidence be relevantââ).
Moreover, an ambiguity regarding the defendantâs
motiveâi.e., the possibility that he was hiding from
the police for a reason unassociated with the carwash
robberyâdoes not invalidate the courtâs action in this
case. See State v. Middlebrook, 51 Conn. App. 711, 720â
21, 725 A.2d 351 (once evidence sufficient to infer consciousness of guilt admitted, jury left to consider any
ambiguity), cert. denied, 248 Conn. 910, 731 A.2d 310
(1999). Because the evidence that the defendant concealed himself from the police was relevant to a jury
instruction concerning consciousness of guilt, we conclude that the issuance of such instruction was not an
abuse of discretion. See State v. Williams, 27 Conn.
App. 654, 664, 610 A.2d 672 (upholding jury charge and
noting that ââ[c]oncealment, when unexplained, may
tend to prove a consciousness of guiltââ), cert. denied,
223 Conn. 914, 614 A.2d 829 (1992).
With regard to the defendantâs statements concerning
his whereabouts on the day of the crime, the record
indicates that the defendant had informed the police
on three occasionsâOctober 19 and November 16,
2006, and April 11, 2007âthat he was not present at
the carwash at the time of the robbery but, rather, that
he was at his home in Hartford. The defendant argues
that his presence at the carwash at the time of the
robbery was the critical issue in the present matter.
Thus, the defendant contends, instructing the jury that
it could consider inconsistencies in his testimony was
highly prejudicial.
The courtâs consciousness of guilt instruction as
applicable to alleged false statements provided: ââ[A]
personâs false statement as to his whereabouts at the
time of the offense when unexplained may indicate
consciousness of guilt if the facts and circumstances
support it. . . . If you find the evidence proves such
acts and you also find that the acts were influenced by
the criminal act and not by any other reason, you may,
but are not required, to infer from the evidence the
defendant was acting from a guilty conscience.ââ
ââEvidence that an accused had made false statements
tending to exculpate him from involvement in the
crimes charged has commonly been deemed to support
a jury charge on consciousness of guilt.ââ (Internal quotation marks omitted.) State v. Hinds, 86 Conn. App.
557, 565, 861 A.2d 1219 (2004), cert. denied, 273 Conn.
915, 871 A.2d 372 (2005). ââThe trial court, however,
should admit only that evidence where its probative
value outweighs its prejudicial effect. . . . In seeking
to introduce evidence of a defendantâs consciousness
of guilt, [i]t is relevant to show the conduct of an
accused . . . as well as any statement made by him
subsequent to an alleged criminal act, which may be
inferred to have been influenced by the criminal act.ââ
(Internal quotation marks omitted.) State v. Riser, 70
Conn. App. 543, 548, 800 A.2d 564 (2002).
Here, there is evidence in the record that, in response
to police questioning on three separate occasions, the
defendant denied involvement in the robbery and indicated that he was at home in Hartford at the time of
the incident. Such statements clearly are exculpatory
and, moreover, reasonably can be inferred to have been
influenced by the criminal acts at issue in the present
matter. Because the defendantâs presence at the carwash was an important component of the stateâs case,
the probative value of the statements outweighed their
prejudicial effect. Accordingly, we cannot conclude that
the court abused its discretion in providing the
instruction.
D
In framing his final claim of instructional error, the
defendant states in his main brief that the ââtrial court
should have given an instruction that [the] jury needed
to be unanimous on whether [the] defendant was guilty
as a principal under the Pinkerton doctrine of accessory
liability or as a coconspirator.ââ In his reply brief, however, the defendant claims that the ââtrial court should
have given a more specific instruction that the jury
needed to return a unanimous verdict on whether the
defendant was guilty as a principal or a coconspirator.ââ
The following additional facts aid in clarifying the
defendantâs claim. The defendant filed a request to
charge seeking, in part, a specific unanimity charge.5
The defendant cited the case of United States v. Gipson,
553 F.2d 453 (5th Cir. 1977), in support of his proposed
unanimity instruction.
The courtâs initial jury charge included specific
instructions on the first three counts of the information,
which charged robbery in the first degree, robbery in the
first degree as an accessory and conspiracy to commit
robbery in the first degree, respectively. The jury was
also instructed as to lesser included offenses and the
court provided an instruction on the application of the
Pinkerton doctrine.6 The defendant objected to the
courtâs charge. Later, during deliberation, the jury conveyed a question to the court, which the court characterized as saying ââif we found in the first count robbery
in the third degree can there be accessory or conspiracy
in the first degree? Does that same degree follow for
the remaining counts?ââ
In response to the jury inquiry, the court merged the
first and second counts of the information, charging
robbery in the first degree and robbery in the first
degree as an accessory, and provided counsel for both
parties with a proposed supplemental jury instruction.
The defendant objected to both the merger of the counts
and to the courtâs proposed instruction on the ground
that it failed to properly instruct on ââunanimity as to
whether it is an accessory or principal based upon that
. . . original request I made [at the initial charging conference] based on the old case of [United States v.
Gipson, supra, 553 F.2d 453] . . . .ââ The court then
instructed the jury as follows: ââIn determining whether
the defendant is guilty or not guilty of robbery in the
first degree you may not mix and match the defendantâs
culpability, if any, as a participant or an accessory on
the one hand and culpability under the Pinkerton doctrine on the other hand. You canât have some of you
finding one as an accessory or principal and becoming
unanimous by others finding under Pinkerton.
ââIn other words, to arrive at a guiltyâa verdict of
guilty of robbery in the first degree, you must all be
unanimous that the defendant was a participant in or
accessory to that crime or, alternatively, you must all
be unanimous that he is guilty of the crime under the
Pinkerton doctrine, but you canât mix and match those
two to achieve unanimity.ââ7
The defendant argues that application of the Pinkerton doctrine involves the resolution of complex legal
issues that are likely to confuse a jury. He contends
that ââ[c]learly the jurors in this case were confused, as
they came back with a question about whether they
could find a defendant guilty of a different âlevelâ of
offense for the principal/accessory and conspiracy
charges. The courtâs response, which indicated that they
needed to be unanimous on the conspiracy charge but
not as to principal versus accessory [was] highly confusing and likely to lead the jury to believe that they [did]
not need to return a unanimous verdict.ââ
We note that the defendant conceded during oral
argument before this court that he is not arguing that
unanimity was required as between principal and accessorial liability. Thus, we construe the defendantâs claim
as stating that the courtâs instruction to the jury insufficiently conveyed that it needed to be unanimous as
to whether the defendant was guilty of robbery as a
participant, either as a principal or as an accessory, or
guilty under the Pinkerton doctrine.
ââA party may preserve for appeal a claim that a jury
instruction was improper either by submitting a written
request to charge or by taking an exception to the
charge as given.ââ Pestey v. Cushman, 259 Conn. 345,
372â73, 788 A.2d 496 (2002). The defendant objected at
trial to both the merger of the counts and the courtâs
proposed postmerger instruction on the ground that
such instruction failed to provide for a unanimity charge
as between principal and accessory liability. We note
that the defendant does not challenge the merger of
the counts on appeal. Rather, he now seeks to attack
the courtâs jury instruction on the ground that it failed
to provide a unanimity charge as between liability as
a principal or accessory, on the one hand, and liability
under Pinkerton, on the other. Because, on appeal, the
defendant attacks the courtâs instruction on a ground
different from that advanced at trial, we decline to
review his claim.8 State v. Boyd, 295 Conn. 707, 758,
992 A.2d 1071 (2010) (ââ[t]o review [a] claim, which has
been articulated for the first time on appeal and not
before the trial court, would result in a trial by ambuscade of the trial judgeââ [internal quotation marks omitted]), cert. denied,
U.S. , 131 S. Ct. 1474, 179 L.
Ed. 2d 314 (2011).
III
The defendant further claims that the court improperly refused to grant his motion for a mistrial based
on the prosecutorâs improper comments during closing
argument. The defendant argues that comments made
by the prosecutor resulted in a denial of his right to
due process. Specifically, the defendant contends that
the prosecutorâs comments when discussing lesser
included offense instructions ââindicated to the jury that
the defense had conceded guilt.ââ9 We disagree only as
to the denial of his right to due process.
As a preliminary matter, we note that the state does
not dispute the impropriety of the prosecutorâs comment. Therefore, we will restrict our review to whether
the denial of the motion for mistrial, in light of the
concededly improper statement, constituted a due process violation.
ââ[T]he touchstone for appellate review of claims of
prosecutorial [impropriety] is a determination of
whether the defendant was deprived of his right to
a fair trial, and this determination must involve the
application of the factors set out . . . in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).ââ (Internal quotation marks omitted.) State v. Pascal, 109 Conn.
App. 55, 66, 950 A.2d 566, cert. denied, 289 Conn. 917,
957 A.2d 880 (2008). The Williams factors include ââthe
extent to which the impropriety was invited by defense
conduct, the severity of the impropriety, the frequency
of the impropriety, the centrality of the impropriety to
the critical issues in the case, the effectiveness of the
curative measures adopted and the strength of the
stateâs case.ââ (Internal quotation marks omitted.) State
v. Carbone, 116 Conn. App. 801, 811, 977 A.2d 694, cert.
denied, 294 Conn. 904, 982 A.2d 647 (2009).
Here, it is apparent from the record that the improper
comment was not invited by defense conduct. The prosecutorâs impropriety was confined to approximately
eight sentences during closing argument. The stateâs
case was supported by substantial evidence, including
testimony of an accomplice witness implicating the
defendant in the robbery, the defendantâs telephone
conversation with Eileen Vasquez wherein he admitted
having planned the robbery and the defendantâs own
statement to the police wherein he admitted his participation in the robbery as a getaway driver.
Although the prosecutorâs comments touched tangentially on the defendantâs culpability, the impropriety
was not central to the critical issues in the case, namely,
the defendantâs presence at the carwash and intent to
participate in the robbery. Finally, the court issued a
curative instruction, cautioning the jury that the state
ââcanât speak for what the defense wants or what the
defense expects. The comments that counsel is making,
speak only for the state. [The defendantâs counsel] will
speak for the defendant.ââ In light of our consideration of
the Williams factors, we determine that the impropriety
did not deprive the defendant of a fair trial. Accordingly,
the court did not err in denying the motion for mistrial.
IV
The defendantâs final claim on appeal is that the court
improperly denied his motion to suppress his statement
to the police.10 Specifically, the defendant contends that
his statement to the police must be suppressed on two
grounds: (1) it was given involuntarily, as a result of
police coercion and (2) it was taken absent a clear
waiver of the defendantâs right to counsel.11 We are
not persuaded.
Our review of a courtâs denial of a motion to suppress
involves a two part function. State v. DiMeco, 128 Conn.
App. 198, 202, 15 A.3d 1204, cert. denied, 301 Conn. 928,
22 A.3d 1275, cert. denied,
U.S.
, 132 S. Ct. 559,
181 L. Ed. 2d 398 (2011). Challenges to the courtâs factual determinations are reviewed under a clearly erroneous standard. Id., 202â203. Where the courtâs legal
determinations are challenged, our review is plenary,
and we seek to determine whether, in light of its findings
of fact, the courtâs conclusions are legally and logically
correct. Id., 203.
A
The following additional facts, drawn from the courtâs
findings at the suppression hearing, are relevant to the
defendantâs claim that his statement was the product
of police coercion. After his arrest on April 11, 2007,
at approximately 9:30 a.m., the defendant was transported to the Vernon police department and placed in a
holding cell. The defendant was not interrogated during
this time, and the entire process of transporting and
processing the defendant took approximately two
hours. The court further determined that the interrogation process took approximately three hours, lasting
from 11:30 a.m. until 2:30 p.m. Although the defendant
initially denied involvement in the robbery, the police
recited certain evidence they had implicating the defendantâs brother in the crime in further support of their
arrest of the defendant. The defendant eventually provided a statement to the police admitting his participation in the robbery.
Our review of the voluntariness of the defendantâs
statement is plenary. See State v. Garcia, 299 Conn.
39, 51, 7 A.3d 355 (2010). Subordinate factual determinations regarding the circumstances surrounding the
statement are subject to deference and will not be overturned unless clearly erroneous. See id.
Here, the defendant contends that, under the totality
of the circumstances, his confession was not voluntary
and was the subject of police coercion. The defendant
argues that, although the court found that the three
hour period of questioning was not unreasonable, the
court failed to take into consideration prior repeated
questioning by the police and his continued denial of
involvement in the robbery. The defendant contends
that the only plausible explanation for the conduct of
the police, including their statements concerning his
brotherâs involvement in the robbery, was to break
down his will and coerce a confession.
ââ[T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct
of law enforcement officials was such as to overbear
[the defendantâs] will to resist and bring about confessions not freely self-determined . . . . The ultimate
test remains . . . [i]s the confession the product of an
essentially free and unconstrained choice by its maker?
If it is, if he has willed to confess, it may be used against
him. If it is not, if his will has been overborne and his
capacity for self-determination critically impaired, the
use of his confession offends due process. . . . The
determination, by the trial court, [of] whether a confession is voluntary must be grounded [on] a consideration
of the circumstances surrounding it. . . .
ââFactors that may be taken into account [to assess
voluntariness], upon a proper factual showing, include:
the youth of the accused; his lack of education; his
intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and
prolonged nature of the questioning; and the use of
physical punishment, such as the deprivation of food
and sleep.ââ (Internal quotation marks omitted.) State
v. Garcia, supra, 299 Conn. 51â52.
Our review of the record supports the courtâs determination. The court found the approximately three hour
interrogation period reasonable and that there was
âânothing which would suggest an overbearing of anybodyâs willââ with respect to the approximately two
hours wherein the defendant was placed in a holding
cell. Additionally, the court noted that there was no
evidence that the defendant had been intoxicated or
deprived of food or sleep. Finally, with respect to the
police statements concerning the defendantâs brother,
the court found that the use of such information was
not ââintended in any way to overbear the defendantâs
will. Itâs just a statement of fact that they did have
evidence against the brother.ââ
The courtâs factual findings are supported by the
record and are not clearly erroneous. On the basis of
the facts as found by the court, the court did not err in
concluding that, under the totality of the circumstances,
the defendantâs statement was not the result of
improper coercion.
B
With regard to the defendantâs alleged invocation of
his right to counsel, we engage in a searching review
of the record to determine whether the courtâs finding
that there had been a knowing and voluntary waiver
was supported by substantial evidence. See State v.
Wallace, 290 Conn. 261, 267, 962 A.2d 781 (2009).
The defendant argues that he requested a lawyer as
soon as the police began questioning him on the day
he was arrested. The defendant contends that his trial
testimony ââconflict[ed] with Detective [John DiVenereâs] statements that the police had him sign not one
but two waiver forms before they began to question
him.ââ
ââIn evaluating whether the state has met its burden
of proving that the defendant knowingly and voluntarily
waived his rights . . . we must defer to the trial courtâs
resolution of questions of credibility.ââ (Internal quotation marks omitted.) State v. Foreman, 288 Conn. 684,
700â701, 954 A.2d 135 (2008). It is clear that the court
credited DiVenereâs account of the waiver procedure,
which it referred to as a ââby the book approach.ââ Moreover, there was evidence in the record that the defendant signed not one, but two, waiver forms, and the
court was free to credit that evidence. Accordingly, we
conclude that the courtâs finding that the defendant
knowingly and voluntarily waived his right to counsel
was supported by substantial evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
According to her trial testimony, Eileen Vasquez is not related to the
defendant.
2
Moreover, we disagree with the defendantâs argument that he was
deprived of his due process right to notice of the specific charges against him
when he was convicted of lesser included offenses that were not specifically
charged in the stateâs information at the time the court denied his motion
for a judgment of acquittal. We note that âânotice of the crime charged
includes notice of all lesser included offenses.ââ (Internal quotation marks
omitted.) State v. Chance, 236 Conn. 31, 56, 671 A.2d 323 (1996). We also
note that even if the court rendered judgments of acquittal as to the principal
offenses charged, such judgments would not necessarily apply to the lesser
included offenses. See Practice Book § 42-40.
3
Furthermore, even if we were to reach the issue of the sufficiency of
the evidence, we would determine that the court did not err in denying the
motion for a judgment of acquittal. We note that § 53a-134 (a) provides in
relevant part: ââA person is guilty of robbery in the first degree when, in the
course of the commission of the crime of robbery as defined in section 53a133 or of immediate flight therefrom, he or another participant in the crime
. . . (4) displays or threatens the use of what he represents by his words
or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other
firearm . . . .ââ (Emphasis added.) Here, both Bultron and Havens testified
that Bultron cautioned Havens, after placing him in the carwash bathroom,
that if he moved, Bultronâs ââboyââ would shoot. Were we to reach the issue,
it is clear from the record that the testimony of Bultron and Havens, coupled
with the defendantâs statement to Eileen Vasquez that he masterminded a
crime which he described subsequently as an ââarmed robbery,ââ provides
sufficient evidence from which the jury could reasonably infer that the
defendant agreed to the use or threatened the use of a weapon in the
commission of the robbery.
4
The defendant argues that there was evidence that Bultron was looking
for a sentence modification in return for his testimony and that the jury
should have been instructed on his ââpossible interestââ in obtaining a benefit
from the state. Nonetheless, the defendant concedes that as of the date of
trial, Bultron had not filed an actual request for a sentence modification
nor was there any evidence that the state had offered or entered into a deal
with him.
5
The requested instruction provided in relevant part: ââEither he is guilty
of count one and not guilty of count two or he is guilty of count two and
not count one, or he is not guilty of either charge. . . . A valid verdict on
either count cannot be had if half of you believe him guilty of count one
and half of count two.ââ
6
See Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed.
1489 (1946). ââPursuant to the Pinkerton doctrine of vicarious liability, articulated by the United States Supreme Court in Pinkerton . . . and expressly
adopted by our Supreme Court in State v. Walton, 227 Conn. 32, 630 A.2d
990 (1993), a conspirator may be held liable for criminal offenses committed
by a coconspirator that are within the scope of the conspiracy, are in
furtherance of it, and are reasonably foreseeable as a necessary or natural
consequence of the conspiracy.ââ (Internal quotation marks omitted.) State
v. LaFountain, 127 Conn. App. 819, 827, 16 A.3d 761, cert. denied, 301 Conn.
921, 22 A.3d 1281 (2011).
7
With respect to the merged counts, the court instructed the jury that they
did âânot have to be unanimous on whether the defendant was a participant or
an accessory so long as you find the elements of the crime of robbery in
the first degree proved beyond a reasonable doubt including the defendantâs
role as a participant or as an accessory as I have explained them.ââ
8
We note that the state failed to object to this claim on preservation
grounds. Nonetheless, even if we were to reach the merits of this claim, we
would find it unavailing. Our review of the record reveals that the courtâs
instruction never sanctioned expressly a nonunanimous verdict as between
liability as a participant, either as a principal or accessory, and liability
under Pinkerton. See State v. Martinez, 278 Conn. 598, 610, 900 A.2d 485
(2006) (threshold inquiry is whether ââthe trial court included in its instruc-
tions language âexpressly sanctioningâ a nonunanimous verdictââ).
9
Specifically, the prosecutor stated during closing argument: ââOne of the
things [the judge is] going to talk about is called lesser included offenses.
Now, the defendant wants you to hear about these things and, quite frankly,
so does the state. These are normal things that come during trials, but they
only come into play if you find the defendant not guilty of a particular
charge. They can only be considered by you, in fact, if you find the defendant
not guilty of the charges as they stand. If you find him not guilty, then you
consider these lesser included offenses. If you find him guilty as charged,
you donât even need to look at them. As I mentioned both the state and the
defense want you to consider these things. From the defendantâs point of
view, I would imagine that he wants you to know about these things so
maybe you wonât convict him of the charges . . . .ââ
10
We note that the prepared record does not contain a written memorandum of decision or signed transcript setting forth the courtâs reasons for
denying the motion to suppress. See Practice Book § 64-1 (a) (4). Although
we frequently have declined to review claims on appeal due to an appellantâs
failure to provide an adequate record for review, we will review the present
claim on the basis of the unsigned transcript filed in this matter. See In re
Diamond J., 121 Conn. App. 392, 398â99, 996 A.2d 296, cert. denied, 297
Conn. 927, 998 A.2d 1193 (2010).
11
In his brief, the defendant concedes that there ââwas no real dispute at
trial over whether [the defendant] was in custody or whether the taking of
the statement amounted to an interrogation.ââ Accordingly, we restrict our
analysis to the specific claims of whether the statement was given voluntarily
and whether the defendant knowingly waived his right to counsel.
