State v. Louis ( 2016 )

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STATE OF CONNECTICUT v. JACQUES LOUIS
(AC 35703)
Lavine, Keller and Pellegrino, Js.
Argued November 30, 2015—officially released February 9, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Thim, J.)
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 attor-
ney, and Joseph P. Harry, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
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
one count of conspiracy to commit robbery in the sec-
ond degree in violation of § 53a-48 and General Statutes
(Rev. to 2011) § 53a-135 (a) (1).3 On appeal, the defen-
dant 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, Bar-
jon, 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.
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-Phil-
ippe 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 Sant-
oro 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-Phil-
ippe and found a loaded, operable firearm that Jean-
Philippe had discarded near a trash receptacle. A fire-
arms 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 rob-
bery 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
of the robbery and that Adolph’s testimony was not
believable. Barjon also claimed that he merely was pre-
sent 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 defen-
dant,5 but the jury found him guilty of conspiracy to
commit robbery in the first and second degree. At sen-
tencing, 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 per-
mitted 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.
The following additional procedural history is rele-
vant to the defendant’s claim. After the state rested,
the defense counsel, Charles Kurmay, moved for a judg-
ment 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 not-
withstanding the verdict on the ground that there was
insufficient evidence to find him guilty of conspiracy
to commit robbery in the first degree. The court denied
the motion.8
‘‘The due process clause of the fourteenth amend-
ment to the United States constitution protects a crimi-
nal defendant from conviction absent proof beyond a
reasonable doubt of each fact necessary to constitute
the elements of the crime. . . . Because a jury may
occasionally convict even when it can be said that no
rational trier of fact could find guilty beyond a reason-
able doubt, a defendant is entitled to challenge his con-
viction on that basis with a motion for a judgment of
acquittal.’’ (Citation omitted; internal quotation marks
omitted.) State v. Watts, 71 Conn. App. 27, 31, 800 A.2d
619 (2002).
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction,
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether on the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Martin, 285 Conn. 135, 147,
939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133,
172 L. Ed. 2d 101, after remand, 110 Conn. App. 171,
954 A.2d 256 (2008), appeal dismissed, 295 Conn. 192,
989 A.2d 1072 (2010).
‘‘[T]he inquiry into whether the record evidence
would support a finding of guilt beyond a reasonable
doubt does not require a court to ask itself whether it
believes that the evidence . . . established guilt
beyond a reasonable doubt. . . . Instead, the relevant
question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’’ (Internal quota-
tion marks omitted.) State v. Watts, supra, 71 Conn.
App. 31. In ruling on a motion for judgment of acquittal,
the trial court must determine whether a rational trier
of fact could find guilt proven beyond a reasonable
doubt. See State v. Delarosa, 16 Conn. App. 18, 33, 547
A.2d 47 (1988).
The defendant argues that no one ever identified him
as having been present at the scene of the robbery in
the market. Adolph, however, testified that four men
entered the market. He knew Barjon and Tilus, and he
identified Jean-Philippe as the man with the gun. He
also testified that there was a fourth man, whom he
did not know, who stood beside him in the market and
that this unknown person chased him to the laundry and
tried to pull open the door. When he stopped Santoro,
Adolph pointed to Jean-Philippe, who was walking
away from the market, and told the officer that he had
a gun and had just robbed him. He also told her that
the men in the white car in front of the market also
had robbed him. Santoro saw three men in the white
car. The defendant was a passenger in the car; Barjon
was the driver. On appeal, he claims that it is not clear
whether he sat in the car during the robbery or got
into the car sometime later. He argues that the jury,
therefore, had to resort to speculation.
We disagree that no one identified the defendant as
a participant in the robbery. According to Adolph, four
men entered the market. He recognized two of them,
but did not recognize the two men who stood next to
him. One of those men had a gun. Barjon and the
unknown man without a gun chased him as he ran from
the market. At Adolph’s direction, Santoro arrested the
four men because Adolph stated that they had robbed
him. At the time she detained them, three of the men
were sitting in a white car in front of the market, and
Jean-Philippe was running away. At trial, in response
to a question from Barjon’s counsel, Matthew Couloute,
Santoro testified that the first time she saw Barjon and
the defendant, they were in the white car. Santoro also
testified that all four of the men were dressed in suits
as if they were going to a club. She also testified that the
defendant was sitting at counsel table next to Barjon.9
The jury also heard testimony from Tavares, the mar-
ket cashier. According to Tavares, one man with a black
gun ordered him to open the glass partition, to stand
facing the wall, and to give him the money. Avcolt
testified that Adolph ran into the laundry calling for
help. Adolph held the door shut while one person whom
Avcolt did not recognize tried to open the door to the
laundry. The person trying to open the door was not
Barjon. She saw two other men standing approximately
a meter away from the door while this occurred.
On the basis of the evidence presented, the jury rea-
sonably could have found beyond a reasonable doubt
that the defendant was the fourth man to enter the
market. Adolph identified two of the men who entered
the market by name and there is no dispute that Jean-
Philippe was the man with the gun. Given Santoro’s
testimony that she arrested three men in the car, two
of whom were identified by Adolph, by process of elimi-
nation, the jury reasonably could have found that the
defendant was the fourth man who robbed the market.
Common sense does not take flight at the courthouse
door. See, e.g., State v. Zayas, 195 Conn. 611, 620, 490
A.2d 68 (1985).
The defendant also claims that the court improperly
permitted the case to go to the jury because the jury had
to resort to speculation and conjecture as to whether he
conspired to participate in the robbery. See State v.
Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986) (jury
may not speculate or resort to conjecture). He argues
that the fact that he was in the car and arrested with
Barjon and Tilus is insufficient to prove beyond a rea-
sonable doubt that he conspired to rob the market. He
contends that there is no evidence that he agreed with
anyone to participate in the robbery let alone that he
agreed to every element of the crime of robbery in the
first or second degree, i.e., that a deadly weapon would
be used or displayed.10 The defendant relies on our
Supreme Court’s decision in State v. Pond, supra, 315
Conn. 451, for the proposition that the state must prove
specific intent to agree to commit the subject crime.
‘‘To establish the crime of conspiracy under [§] 53a-
48 of the General Statutes, the state must show that
there was an agreement between two or more persons
to engage in conduct constituting a crime and that the
agreement was followed by an overt act in furtherance
of the conspiracy by any one of the conspirators. The
state must also show intent on the part of the accused
that conduct constituting a crime be performed.’’ (Inter-
nal quotation marks omitted.) State v. Delarosa, supra,
16 Conn. App. 33.
Our Supreme Court has explained that § 53a-48
‘‘[c]onspiracy is a specific intent crime, with the intent
divided into two elements: [1] the intent to agree or
conspire and [2] the intent to commit the offense which
is the object of the conspiracy. . . . Thus, [p]roof of a
conspiracy to commit a specific offense requires proof
that the conspirators intended to bring about the ele-
ments of the conspired offense.’’ (Emphasis in the origi-
nal; internal quotation marks omitted.) State v. Pond,
supra, 315 Conn. 460. ‘‘[T]o sustain a conviction for
conspiracy to commit a particular offense the [state]
must show not only that the conspirators intended to
agree but also that they intended to commit the ele-
ments of the offense.’’ (Emphasis in the original; internal
quotation marks omitted.) Id., 461.
‘‘To establish a violation of § 53a-48 (a), the state must
prove that the three essential elements are satisfied: (1)
the accused intended that conduct constituting a crime
would be performed; (2) the accused formed an
agreement with one or more persons to engage in such
conduct; and (3) any one of the coconspirators per-
formed some overt act in furtherance of the conspiracy.
. . . Conspiracy, then is a specific intent crime, with
the intent divided into two elements: [1] the intent to
agree or conspire and [2] the intent to commit the
offense which is the object of the conspiracy.’’ (Citation
omitted; internal quotation marks omitted.) Id., 467–68.
‘‘The state must also show intent on the part of the
accused that conduct constituting a crime be per-
formed. . . . The existence of a formal agreement
between the parties need not be proved; it is sufficient
to show that they are knowingly engaged in a mutual
plan to do a forbidden act. . . . Because of the secret
nature of conspiracies, a conviction usually is based on
circumstantial evidence. . . . Consequently, it is not
necessary to establish that the defendant and his cocon-
spirators signed papers, shook hands, or uttered the
words we have an agreement. . . . [T]he requisite
agreement or confederation may be inferred from proof
of the separate acts of the individuals accused as cocon-
spirators and from the circumstances surrounding the
commission of these acts.’’ (Citations omitted; internal
quotation marks omitted.) State v. Taft, 306 Conn. 749,
756–57, 51 A.3d 988 (2012). Our law does not distinguish
between direct and circumstantial evidence with regard
to probative force. See State v. Crump, 201 Conn. 489,
495, 518 A.2d 378 (1986).
In the present case, the offenses that are the object
of the conspiracy are robbery in the first degree in
violation of § 53a-134 (a) (2) and robbery in the second
degree in violation of § 53a-135 (a) (1). The burden on
the state, therefore, was to prove beyond a reasonable
doubt that one of the conspirators was armed with a
deadly weapon during the course of the robbery or
immediate flight therefrom; see General Statutes § 53a-
134 (a) (2); and that he was aided by another person
actually present. See General Statutes (Rev. to 2011)
§ 53a-135 (a) (1).
On the basis of the testimony given by Adolph and
Santoro, the jury reasonably could have concluded that
the defendant entered the market with three men who
intended to commit a robbery therein. Adolph knew
Barjon and Tilus, who were customers. He did not know
or recognize the defendant or Jean-Philippe. After enter-
ing the market, the conspirators surrounded Adolph
with the defendant and Jean-Philippe standing on either
side of him. Jean-Philippe displayed a black gun and
demanded that Adolph give him money. The defendant
did not flee when Jean-Philippe displayed the gun. When
Adolph fled from the market to the laundry, the defen-
dant followed him and attempted to open the laundry
door, which Adolph was holding shut. The gun that was
used in the robbery was traced to a crime that had
occurred in New Jersey, where Jean-Philippe and the
defendant were from. There is no dispute that Jean-
Philippe took money and a phone by force from
Tavares.
‘‘[I]t is a permissible, albeit not a necessary or manda-
tory, inference that a defendant intended the natural
consequences of his voluntary conduct.’’ State v. Mon-
tanez, 219 Conn. 16, 20, 592 A.2d 149 (1991). In the
present case, the defendant aided the coconspirators
by entering the market and standing beside Adolph
when Jean-Philippe displayed a gun and ordered Adolph
to give him money. ‘‘The fact that the defendant stood
by silently when a gun was displayed in order to [force
the victim to give up his property] . . . is evidence
from which the jury might reasonably have inferred
the defendant’s acquiescence in [an] enlarged criminal
enterprise.’’ State v. Crosswell, 223 Conn. 243, 256, 612
A.2d 1174 (1992). We therefore conclude that there was
sufficient evidence by which the jury reasonably could
have found that the defendant agreed with three others
to enter the market and to threaten the use of physical
force to compel Adolph to give them money and that
Jean-Philippe would be armed with a deadly weapon.
The trial court, therefore, properly denied the defen-
dant’s motions for judgment of acquittal.
II
The defendant’s second claim is that the court failed
to give the jury a conspiracy instruction that complied
with State v. Pond, supra, 315 Conn. 451. The state
claims that the defendant’s claim is not reviewable
because the defendant failed to (1) preserve it at trial,11
(2) comply with Practice Book § 67-4 (d) (2), or (3)
adequately brief the claim. We agree that the defendant
failed to preserve the claim at trial, but we will review
it pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), because the court’s charge is con-
tained in the record and a claim of instructional error
as to an essential element of a crime may violate the
defendant’s due process rights to a fair trial. See State v.
Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995). We disagree,
however, that the alleged constitutional violation
exists.
‘‘When reviewing [a] challenged jury instruction . . .
we must adhere to the well settled rule that a charge
to the jury is to be considered in its entirety, read as
a whole, and judged by its total effect rather than by
its individual component parts. . . . [T]he test of a
court’s charge is not whether it is as accurate upon
legal principles as the opinions of a court of last resort
but whether it 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. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper.’’ (Internal quota-
tion marks omitted.) State v. Ortiz, 71 Conn. App. 865,
872, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d
1136 (2002).
On the basis of our review of the court’s charge to
the jury, we disagree that the court’s charge is not in
accordance with the legal principles articulated in
Pond. The more fundamental problem with the defen-
dant’s claim is that it is predicated upon the crime at
issue in Pond, conspiracy to commit robbery in the
second degree in violation of General Statutes (Rev. to
2007) § 53a-135 (a) (2) (‘‘displays or threatens the use
of . . . a deadly weapon or a dangerous instrument’’).
The defendant in the present case was charged with
conspiracy to commit robbery in the second degree
in violation of a different statutory provision, namely,
General Statutes (Rev. to 2011) § 53a-135 (a) (1) (‘‘he
is aided by another person actually present’’).
On appeal, the defendant takes issue with the follow-
ing portion of the court’s charge: ‘‘The state must further
prove that the conspirators understood that a deadly
weapon would be carried by one of the participants.
The state need not prove a formal or express agreement.
The state may rely upon circumstantial evidence, if
sufficient, to prove this element beyond a reasonable
doubt.’’
The law regarding conspiracy is well known. ‘‘To
establish the crime of conspiracy under § 53a-48 . . .
the state must show that there was an agreement
between two or more persons to engage in conduct
constituting a crime and that the agreement was fol-
lowed by an overt act in furtherance of the conspiracy
by any one of the conspirators. The state must also
show intent on the part of the accused that conduct
constituting a crime be performed. The existence of
a formal agreement between the parties need not be
proved; it is sufficient to show that they are knowingly
engaged in a mutual plan to do a forbidden act.’’ (Inter-
nal quotation marks omitted.) State v. Millan, 290 Conn.
816, 825–26, 966 A.2d 699 (2009). ‘‘[T]he requisite
agreement or confederation may be inferred from proof
of the separate acts of the individuals accused as cocon-
spirators and from the circumstances surrounding the
commission of those acts.’’ (Internal quotation marks
omitted.) Id., 826. Furthermore, ‘‘[a] coconspirator’s
conduct at the scene can provide the requisite evidence
of an agreement.’’ Id., 828.
The defendant also claims that the court failed to
instruct the jury that he had the specific intent that the
robbery would involve the display or threatened use of
what the defendant represented to be a deadly weapon
or dangerous instrument. In support of his claim the
defendant relies on the following language from State
v. Pond, supra, 315 Conn. 451. ‘‘[T]he trial court should
have instructed the jury that, to find the defendant guilty
of conspiracy to commit robbery in the second degree
in violation of §§ 53a-135 (a) (2) and 53a-48 (a), it had
to find that the defendant specifically intended that the
robbery would have involved the display or threatened
use of what [the other conspirator] represented to be
a deadly weapon or dangerous instrument.’’ Id., 466.
Although the Supreme Court held that the trial court
must instruct the jury that a defendant had the intent
to conspire to commit the crime that is the object of
the conspiracy, the language quoted by the defendant is
inapplicable to the present case because the defendant
here was not charged with violation of § 53a-135 (a)
(2). He was charged with conspiracy to commit burglary
in the second degree in violation of § 53a-135 (a) (1).
Our review of the transcript reveals that the court
charged the jury with respect to robbery in the first
degree and robbery in the second degree. After each
of those instructions, the court gave the respective
charge as to conspiracy to commit the charged robbery
offenses, which we summarize in relevant part. ‘‘To
convict a defendant of conspiracy to commit robbery
in the first degree, the state must prove three essential
elements. First, an agreement between the defendant
and one or more persons to engage in the crime of
robbery in the first degree. Second, an overt act in
furtherance of the subject of the agreement to commit
robbery in the first degree committed by one of those
persons who was a member of the conspiracy; and
third, proof that the defendant acted with the intent to
commit robbery in the first degree, and the crime of
robbery in the first degree requires an intent to perma-
nently steal property from a person.
‘‘As to the first element, an agreement, the state must
prove that the defendant whose conduct you’re examin-
ing, came to an understanding with at least one other
person to take property from Rene Adolph under cir-
cumstances that amounted to robbery in the first
degree, that is, taking property by threat or force. The
state must prove further that there was an understand-
ing that force would be used to force someone to give
up property. The state must further prove that the con-
spirators understood that a deadly weapon would be
carried by one of the participants. The state need not
prove a formal or express agreement. The state may
rely upon circumstantial evidence, if sufficient, to prove
this element beyond a reasonable doubt.’’ (Emphasis
added.)
‘‘To convict a defendant of conspiracy to commit
robbery in the second degree, the state must prove
three essential elements. First, the state must prove an
agreement between the defendant whose conduct you
are considering and one or more persons to engage in
conduct that amounted to robbery in the second degree.
Second, an overt act in furtherance of the agreement
must be proven. An overt act by one or more of the
participants, one or more members of the conspiracy;
and third, proof that the defendant whose conduct you
are considering acted with intent to permanently
deprive Mr. Adolph of his property. So you must focus
upon each defendant individually and decide whether
the essential elements have been proven as to that
defendant.
‘‘As to the first element, an agreement, the state must
prove that the defendant came to an understanding with
at least one other person to take property from Rene
Adolph under circumstances that amounted to robbery
in the second degree. The state must prove there was an
understanding that the person who took the property
would be aided by another person actually present.’’
(Emphasis added.)
After reviewing the charges against the defendant
and the court’s instruction to the jury, we conclude that
the court properly instructed the jury with respect to
the conspiracy charges lodged against the defendant in
conformity with State v. Pond, supra, 315 Conn. 454.
The court instructed the jury with respect to robbery
in the first degree that the state had to prove that the
‘‘coconspirators understood a deadly weapon would be
carried by one of the participants,’’ and with respect
to robbery in the second degree that there was ‘‘an
understanding that the person who took the property
would be aided by another person actually present.’’
The instructions given by the court properly guided the
jury to consider the issues before it. The defendant’s
claim of instructional error, therefore, fails.
III
The defendant also claims that he was denied the
right to due process by the prosecutor, who allegedly
argued facts not in evidence during his rebuttal argu-
ment. We disagree that the prosecutor’s rebuttal argu-
ment was improper.
The defendant’s analysis of this claim verges on insuf-
ficient, as he refers only to the following portion of the
transcript of the prosecutor’s rebuttal argument:
‘‘[The Prosecutor]: This isn’t TV, this didn’t come with
a script, there’s no commercials. Why didn’t the officers
do DNA? Why didn’t the officers do fingerprints? Why
didn’t the officers—why didn’t they? Ask yourselves,
why should they. They had the eyewitness, they had
another eyewitness, and they had a third eyewitness
on scene. These four individuals, two seated in this
courtroom today, came in and robbed him.
‘‘[Attorney Kurmay]: Objection. That mischaracter-
izes the testimony. They never said this man came in
and robbed anyone.
‘‘The Court: The jury will find what the facts are. This
is just argument at this time.’’
The standard for review of claims of prosecutorial
impropriety is well known. ‘‘[T]he touchstone of due
process analysis in cases of alleged prosecutorial
[impropriety] is the fairness of the trial, and not the
culpability of the prosecutor. . . . The issue is whether
the prosecutor’s conduct so infected the trial with
unfairness as to make the resulting conviction a denial
of due process. . . . [T]he burden is on the defendant
to show, not only that the remarks were improper, but
also that, considered in light of the whole trial, the
improprieties were so egregious that they amounted to
a denial of due process. . . .
‘‘[I]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two
steps are separate and distinct: (1) whether [impropri-
ety] occurred in the first instance; and (2) whether that
[impropriety] deprived a defendant of his due process
right to a fair trial.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Campbell, 149 Conn. App.
405, 434–35, 88 A.3d 1258, cert. denied, 312 Conn. 907,
93 A.3d 157 (2014).
In its brief, the state directed us to the substance of
the prosecutor’s initial closing argument, as well as that
of defense counsel. Initially, the prosecutor marshaled
the evidence by which the jury reasonably could infer
that the defendant, Barjon, Tilus, and Jean-Philippe con-
spired to and robbed Adolph. Thereafter Barjon’s coun-
sel, Couloute, argued stating in part: ‘‘Did a robbery
occur? Yes. Can counsel prove [Jean-Philippe] robbed
the store? Absolutely. Is there any evidence that this
man [Barjon] was involved in that? Outside of conflict-
ing testimony, there isn’t. Do you find the person guilty
based on conflicting testimony, that someone who you
know lied, to actually even have these people arrested?
That’s what they’re asking you to do, and that’s what
I mean when I say everybody has to do their job.’’
Kurmay then argued on behalf of the defendant,
claiming that the defendant was on trial because an
hysterical man who had just been robbed rushed to
identify the perpetrator and his ‘‘allegation’’ was ‘‘com-
pounded by poor police work.’’ Kurmay continued:
‘‘When we talk about the identification, let’s talk about
this. It deserves some serious attention. No eyewitness,
not one, got up there and said [the defendant] came in
the store and robbed anybody, not Mr. Adolph, the man
whose store it was. [Adolph] came in here and said I
don’t recognize him. I recognize one of them, [Barjon],
but he doesn’t recognize [the defendant], has no idea
who he is.
‘‘Then you have Mr. Travares. Mr. Tavares comes in
and says . . . I don’t know. I don’t know who he is. I
was robbed by a man with long hair, but then you hear
Officer Santoro come in, and she gives a description
of Mr. [Jean-Philippe], the guilty party, the man that
actually did rob someone, as having long hair . . . .’’
He further argued that Avcolt testified that there was
only one man at the door of the laundry. Kurmay also
criticized the quality of the police investigation. ‘‘There
are no fingerprints on that gun they were able to lift
or that they even tried to lift. . . . This is like making
a medical decision without any diagnostic testing, like
having no MRI, no CT scan, no nothing. In this case,
there’s no fingerprint, there’s no DNA, there’s no hair
evidence. Lord knows he’s got plenty of hair. If there
was this big struggle, why didn’t they find any? But they
never tried.’’
The defendant’s claim on appeal as to the prosecu-
tor’s rebuttal argument was that the prosecutor mis-
characterized the evidence that the defendant
participated in the robbery at the market. On the basis
of our review of the record, we conclude that the por-
tion of the argument to which the defendant objects
was not improper. Adolph and Santoro testified that
there were four men involved in the robbery. Adolph
and Avcolt testified that they did not recognize or know
one of the men who did not have the gun. Adolph told
Santos three of the men who had tried to rob him had
gotten into a car and were ready to take off. Santoro
identified the man sitting next to Barjon as one of the
men in the white car whom she arrested. As the trial
court pointed out, the facts were to be determined by
the jury.12 In its general instructions, the court charged
the jury that it was its recollection of the facts that
controlled, not the facts that counsel may have argued.
The jury is presumed to have followed the instructions
of the court absent a clear indication to the contrary.
See State v. Raguseo, 225 Conn. 114, 131, 622 A.2d 529(1993). The defendant’s claim of prosecutorial impropri-
ety therefore fails.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy
when, with intent that conduct constituting a crime be performed, he agrees
with one or more persons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in pursuance of such con-
spiracy.’’
2
General Statutes § 53a-134 (a) provides in relevant part: ‘‘A 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 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . . (2) is armed with a
deadly weapon . . . .’’
General Statutes § 53a-133 provides: ‘‘A person commits robbery when,
in the course of committing a larceny, he uses or threatens the immediate
use of physical force upon another person for the purpose of: (1) Preventing
or overcoming resistance to the taking of the property or to the retention
thereof immediately after the taking; or (2) compelling the owner of such
property or another person to deliver up the property or to engage in other
conduct which aids in the commission of the larceny.’’
3
General Statutes (Rev. to 2011) § 53a-135 (a) provides in relevant part:
‘‘A person is guilty of robbery in the second degree when he commits robbery
as defined in section 53a-133 and (1) he is aided by another person actually
present . . . .’’ See footnote 2 of this opinion.
Hereinafter, all references to § 53a-135 are to the 2011 revision of the
statute unless otherwise indicated.
4
The jury found Barjon guilty of all four charges against him. In a separate
trial, a jury found Tilus guilty of robbery in the first degree. See State v.
Tilus, 157 Conn. App. 453, 117 A.3d 920, cert. granted, 317 Conn. 915, 117
A.3d 854 (2015). Prior to the defendant’s trial, Jean-Philippe pleaded guilty
to both robbery in the first degree and conspiracy to commit robbery in
the first degree.
5
At the time the defendant was sentenced, the state entered a nolle
prosequi with respect to the two robbery charges.
6
The defendant was charged with conspiracy to commit robbery in the
second degree in violation of §§ 53a-48 and 53a-135 (a) (1). To be found
guilty of robbery in the second degree in violation of § 53a-135 (a) (1), a
defendant need not display or threaten the use of a deadly weapon. See
footnote 3 of this opinion.
The defendant’s claim appears to be founded on the elements of subdivi-
sion (2) of General Statutes (Rev. to 2011) § 53a-135 (a) which provides: ‘‘in
the course of the commission of the crime or of immediate flight therefrom he
or another participant in the crime displays or threatens the use of what
he represents by his words or conduct to be a deadly weapon or a dangerous
instrument.’’ The defendant was not charged with the crime of conspiracy
to commit robbery in the second degree in violation of § 53a-135 (a) (2).
7
The court denied the motion for a judgment of acquittal stating: ‘‘Just
relying upon [Adolph’s] testimony alone, there’s sufficient evidence that
points out that four people came in the store, three surrounded him, one
pulled out a gun and went to the cashier and stole the money, and all four
were stopped shortly, within minutes thereafter, out in front by the police
and one of the four had just thrown a gun next to the garbage can. There’s
sufficient evidence for the jury to consider, therefore, the defense motions
are denied.’’
8
The court ruled on the motion for judgment of acquittal notwithstanding
the verdict stating: ‘‘[The defendant] was one of four persons who entered
a market to collect a debt by force. One of the four persons, not [the
defendant], but another person, possessed a handgun and displayed the
handgun as he took money by force from one of the persons in the market.
The witnesses testified all four were inside the market and participated in
the robbery. When the police officer passed by, three of the robbers were
sitting in a car outside. It does not follow that all three of those persons
were sitting outside all the time. The evidence was to the contrary. Now,
the gunman, who has been sentenced, was from New Jersey. This man [the
defendant] happens to be from New Jersey. I would conclude from that,
that they were friends and came together.’’
9
Santoro also testified as follows on cross-examination by Kurmay, the
defendant’s counsel:
‘‘[Attorney Kurmay]: You never saw [the defendant] outside the car on
Sherwood Avenue; is that correct?
‘‘[The Witness]: That’s correct.
‘‘[Attorney Kurmay]: The only place you saw him was in the back of the
car; is that true?
‘‘[The Witness]: Yes, sir.
‘‘[Attorney Kurmay]: And where was he seated inside the car?
‘‘[The Witness]: I don’t remember.
‘‘[Attorney Kurmay]: You don’t remember. Do you remember who was
driving the car; do you remember?
‘‘[The Witness]: Barjon.
‘‘[Attorney Kurmay]: So [the defendant] was not the driver, correct?
‘‘[The Witness]: Which one is [the defendant]?
‘‘[Attorney Kurmay]: The one sitting next to . . . Barjon.
‘‘[The Witness]: Right. No, not the driver.’’
10
Again we note that neither conspiracy to commit robbery in the first
or second degree contains the element of ‘‘the use of a deadly weapon.’’
See footnote 3 of this opinion.
11
The state correctly notes that the defendant did not object to the court’s
proposed conspiracy charge and did not take an exception to that portion
of the charge after it was given.
Practice Book § 67-4 (d) (2) provides in relevant part: ‘‘When error is
claimed in the charge to the jury, the brief or appendix shall include a
verbatim statement of all relevant portions of the charge and all relevant
exceptions to the charge. . . .’’ The state included the relevant portion of
the court’s charge in the appendix to its brief.
12
Our review of the final arguments reveals that all counsel objected
repeatedly to the characterization of the evidence by all opposing counsel.
The court repeatedly stated that the facts were to be determined by the jury.