State v. Rosado

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STATE OF CONNECTICUT v. JOSE R. ROSADO
(AC 34533)
Alvord, Bear and Harper, Js.
Argued October 15, 2013—officially released January 21, 2014
(Appeal from Superior Court, judicial district of
Hartford, Schuman, J.)
Jeanne M. Zulick, assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and John F. Fahey, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Jose R. Rosado, appeals
from the judgment of conviction, rendered after a jury
trial, of conspiracy to commit home invasion in viola-
tion of General Statutes §§ 53a-48 and 53a-100aa (a)
(2), conspiracy to commit burglary in the first degree
in violation of General Statutes §§ 53a-48 and 53a-101
(a) (1), and conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48 and
53a-134 (a) (4).1 On appeal, the defendant claims that
(1) the evidence was insufficient to sustain his convic-
tions as to all three offenses, and (2) the court improp-
erly failed to respond to the jury’s request for a clarifying
instruction on the crime of conspiracy. We disagree and
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. At approximately 10 p.m. on November 12, 2009,
Jose Guerrero was standing outside of an apartment
on Cannon Road in East Hartford talking on his cell
phone. Jose Guerrero was in the process of moving into
the apartment, which was shared by his brother, Carlos
Guerrero, and his cousin, Urias Abrego Vasques. He
saw two Hispanic men, who had been walking back
and forth in front of the apartment, enter the building.
Carlos Guerrero and Vasques were home at that time.
They each had separate bedrooms, and the two His-
panic men forced their way into Carlos Guerrero’s bed-
room. One of the men was wearing a white jacket with
stripes, a white and red mask, a white baseball cap and
an orange wig. The other man was dressed in black
and was wearing a black ski mask with a large opening
around the eyes. Both men had weapons; the man in
white was carrying a knife, and the man in black was
armed with a gun. During a struggle with the assailants,
Carlos Guerrero was hit on the head with the gun, cut
on his neck by the knife and thrown to the floor. The
men took his wallet, which contained his money, some
receipts and his brother’s identification card.
Vasques heard noise coming from the other bedroom
and a voice saying that he didn’t have any money.
Vasques opened his bedroom door and saw the man
with the gun coming toward him. He recognized the
eyes of the person behind the black ski mask because
that person was his neighbor and the brother of his
friend. Vasques shut the door and locked it, and then
he jumped out of his bedroom window and ran down
the street. A police officer happened to be in the area
investigating an unrelated incident, and Vasques ran up
to him and reported the incident.
When the two assailants left the apartment, Carlos
Guerrero ran out of the apartment and followed them.
Jose Guerrero, still outside, saw his brother chasing
the men and also ran after them. At one point, one of
the men pointed a gun at Carlos Guerrero, but he then
put it away and kept running. Jose Guerrero pursued
the men until the police stopped him. Carlos Guerrero
continued the pursuit until one of the men dropped his
white baseball cap, and Carlos Guererro stopped to
retrieve it. He then located a police officer and gave
him the cap.
Vasques went to the East Hartford police station that
evening to give a statement. On the basis of the informa-
tion he provided, the police prepared a photographic
array of possible suspects. Vasques identified the defen-
dant as the assailant who wore the black ski mask.
When Carlos Guerrero was interviewed by the police
that evening, he drew a map showing the path taken
by the assailants as he chased them.
That same evening, Sergeant Steven Syme of the East
Hartford Police Department was dispatched to another
apartment complex on Cannon Road after receiving
information that one of the suspects might live at that
location. As Syme approached the building, he heard a
woman in one of the apartments arguing on the tele-
phone by an open window. He discovered that she was
in the apartment thought to be occupied by the suspect.
Syme approached her and determined that she was
Vicky Rosado, who is the defendant’s sister. Vicky
Rosado told Syme that she lived in the apartment with
her brother, but she said that her brother’s name was
‘‘Rueben Robot.’’ The defendant was not in the apart-
ment at that time.
Detective Ellen Stoldt also was dispatched to Cannon
Road that evening for the purpose of searching the area
surrounding the crime scene for evidence connected
with the armed invasion. It was after midnight when
she located a long sleeved black shirt, a black ski mask,
a white sweatshirt with printing on it and a wig along
the route taken by the assailants as they fled. Stoldt
made the decision to return to that location the follow-
ing day during daylight hours to search for additional
evidence that she might have overlooked during the
initial search. When she returned, she discovered a wal-
let, an identification card and several receipts. Stoldt
continued her investigation by interviewing Vasques,
Vicky Rosado and Kevin Saninocencio, a person who
supposedly had been at Vicky Rosado’s apartment on
the night of the incident.
From the physical evidence and the interviews, the
police developed a list of potential suspects that
included the defendant, Saninocencio and Jose Flores.
Jose Flores, also known as Chaio, was never inter-
viewed because he left for Puerto Rico shortly after
the incident. The defendant was arrested in December,
2009, and transported to the East Hartford Police
Department. He voluntarily gave a statement to Stoldt
about the evening in question. He told her that he had
been living with his sister and that he was at her apart-
ment when Chaio arrived carrying a book bag. Chaio
pulled a gun from the bag and said that he wanted to
rob ‘‘the Mexican dudes up the street.’’2 The defendant
told Stoldt that he left the apartment while Chaio was
still there and that he spent the rest of the evening at
a friend’s house. He said that he learned the next day
that ‘‘the Mexican dudes up the street’’ were robbed
the night before. The defendant also told Stoldt that
the details of that night were ‘‘vague’’ because he had
been ‘‘drunk’’ when everything happened. In his written
statement, the defendant stated: ‘‘I drink a lot, and I
am usually drunk. If I did do this robbery, it was during
a time that I was very drunk, and I can’t remember it.’’
The case was tried on October 31, November 1 and
2, 2011. During the trial, the state’s witnesses included
Jose Guerrero, Carlos Guerrero, Vasques, Vicky
Rosado, Saninocencio, police officers, investigators and
forensic experts. Vicky Rosado testified that at approxi-
mately 6 p.m. on November 12, 2009, Chaio, the defen-
dant and two other men were at her apartment as she
was getting ready to go out for the evening. Before
she left, she saw the defendant and Chaio having a
conversation: ‘‘[T]hey were just whispering . . . .’’
Later that evening, after she returned to the apartment,
the police arrived, and she let them search the apart-
ment. Subsequently, she was asked to come to the
police station to give a statement. While there, she was
shown a ski mask, a white sweatshirt with print on it,
a wig, a black T-shirt and a white hat. She told the
police that she recognized the items as items from her
home. She said that the Halloween wig had been in her
daughter’s playbox, the T-shirt looked like the defen-
dant’s T-shirt, and the white sweatshirt looked like her
friend’s sweatshirt.
At trial, Carlos Guerrero identified the wallet, receipts
and his brother’s identification card that had been found
by Stoldt. Saninocencio testified that he had been at
Vicky Rosado’s apartment on the night of the incident
and that he heard the defendant and Chaio ‘‘talking
about doing some kind of harm.’’ When pressed for
details, he said that they were ‘‘planning on doing some-
thing’’ and ‘‘[t]hat they were going to rob those people.’’
He further testified that Chaio was wearing a white
sweater and a wig.
The state’s final witness was Eric Carita, a forensic
science examiner in the DNA unit at the state’s forensic
science laboratory. Carita testified that the defendant
was a contributor to the DNA profile obtained from the
swabbing of the inside rim of the white baseball cap
that had been retrieved by Carlos Guerrero from one
of the assailants. Further, the defendant was a contribu-
tor to the DNA profile obtained from the swabbing of
the inside of the black ski mask.
Following the trial, the jury found the defendant
guilty of conspiracy to commit home invasion, conspir-
acy to commit burglary in the first degree and conspir-
acy to commit robbery in the first degree. The court
accepted the verdict and rendered judgment accord-
ingly. The defendant was sentenced to eight years of
incarceration, followed by six years of special parole.3
This appeal followed.
I
The defendant’s first claim is that the evidence pro-
duced at trial was insufficient to sustain his convictions
of conspiracy to commit home invasion, conspiracy to
commit burglary in the first degree and conspiracy to
commit robbery in the first degree. The defendant
argues that ‘‘his convictions on the conspiracy counts
were based on inconsistent testimony and circumstan-
tial evidence that failed to link him to these crimes and
could not possibly lead to the drawing of any reasonable
inference that he entered [into] a conspiracy to commit
any crime.’’ Specifically, he claims that there was insuf-
ficient evidence that (1) he was one of the two masked
men who entered the victims’ apartment, (2) he entered
into an agreement with the specific intent of committing
a crime, and (3) he or a coconspirator engaged in an
overt act in furtherance of a home invasion, burglary
or robbery.
‘‘We apply a two part test in reviewing sufficiency of
the evidence claims. First, we construe the evidence in
the light most favorable to sustaining the verdict. Sec-
ond, we determine whether upon the facts so construed
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 . . . . While . . . every
element [must be] proven beyond a reasonable doubt
in order to find the defendant guilty of the charged
offense, each of the basic and inferred facts underlying
those conclusions need not be proved beyond a reason-
able doubt. . . . If it is reasonable and logical for the
jury to conclude that a basic fact or an inferred fact is
true, the jury is permitted to consider the fact proven
and may consider it in combination with other proven
facts in determining whether the cumulative effect of
all the evidence proves the defendant guilty of all the
elements of the crime charged beyond a reasonable
doubt.’’ (Internal quotation marks omitted.) State v.
Jennings, 125 Conn. App. 801, 805–806, 9 A.3d 446(2011).
‘‘[T]he probative force of the evidence is not dimin-
ished because it consists, in whole or in part, of circum-
stantial evidence rather than direct evidence. . . . It
has been repeatedly stated that there is no legal distinc-
tion between direct and circumstantial evidence so far
as probative force is concerned. . . . It is not one fact,
but the cumulative impact of a multitude of facts which
establishes guilt in a case involving substantial circum-
stantial evidence.’’ (Internal quotation marks omitted.)
State v. Riser, 70 Conn. App. 543, 552, 800 A.2d 564(2002).
‘‘[I]n viewing evidence which could yield contrary
inferences, the [trier of fact] is not barred from drawing
those inferences consistent with guilt and is not
required to draw only those inferences consistent with
innocence. The rule is that the [trier of fact’s] function
is to draw whatever inferences from evidence or facts
established by the evidence it deems to be reasonable
and logical.’’ (Internal quotation marks omitted.) State
v. Jagat, 111 Conn. App. 173, 177, 958 A.2d 206 (2008).
We first note that the defendant’s claims of insuffi-
ciency of the evidence are directed to possible conflict-
ing testimony at trial. In other words, the defendant
is challenging the credibility of the state’s witnesses.
‘‘[E]vidence is not insufficient . . . because it is con-
flicting or inconsistent. . . . It is the [jury’s] exclusive
province to weigh the conflicting evidence and to deter-
mine the credibility of witnesses. . . . The [jury] can
. . . decide what—all, none, or some—of a witness’
testimony to accept or reject.’’ (Internal quotation
marks omitted.) State v. Vega, 128 Conn. App. 20, 27,
17 A.3d 1060, cert. denied, 301 Conn. 919, 21 A.3d
463 (2011).
With these principles in mind, we turn to the specific
elements of the offenses at issue. To establish the crime
of conspiracy under § 53a-48,4 the state was required
to prove that there was an agreement between two or
more persons to engage in conduct constituting a crime
and that one of the conspirators committed an overt
act in furtherance of the crime agreed upon. Proof of
a conspiracy to commit a specific offense requires proof
that the conspirators intended to bring about the ele-
ments of the conspired offense. See State v. Douglas,
126 Conn. App. 192, 202–203, 11 A.3d 699, cert. denied,
300 Conn. 926, 15 A.3d 628 (2011). The conspired
offenses in this case were home invasion,5 burglary in
the first degree6 and robbery in the first degree.7
We have carefully reviewed the record, including the
transcripts of the trial, and we have set forth in detail
the evidence that the state presented to the jury in
support of the charges of conspiracy. Viewing the evi-
dence in the light most favorable to sustaining the ver-
dict, we conclude that the evidence adduced at trial
was more than sufficient to allow the jury to find beyond
a reasonable doubt that the defendant conspired to
commit home invasion, burglary in the first degree and
robbery in the first degree. The testimony of the wit-
nesses demonstrated that he agreed to commit these
crimes, as defined by statute, and that overt acts were
committed by him or a coconspirator in furtherance
of those crimes. The defendant’s insufficiency of the
evidence claim merits no further discussion.
II
The defendant’s next claim is that the trial court
improperly failed to respond to the jury’s request for a
clarifying instruction on the elements of the crime of
conspiracy. The defendant argues that the court’s fail-
ure to follow the mandatory provisions of Practice Book
§ 42-278 deprived him of a fair trial. The following addi-
tional facts and procedural history are necessary for
the resolution of this claim.
During the course of deliberations, the court received
twelve notes from the jury that were marked as court
exhibits. Several inquiries dealt with requests for copies
of the jury instructions, supplies or breaks for food. A
few of the notes requested a review of testimony from
certain witnesses. The final note, received at 4:25 p.m.
on November 7, 2011, stated that the jury had reached
a verdict on all six charges. It is the note immediately
preceding the final note that is at issue here, which was
the note that the court received at 4:10 p.m. that day.
In that note, the jury asked the court to clarify the
last sentence at page sixteen of its written instructions
pertaining to the crime of conspiracy.9
In its charge, the court instructed the jury that all
communications with the court needed to be in writing,
signed and dated by the foreperson. The court also
instructed the jury that because it could take some time
to assemble the parties and to agree upon a response
to a request, the jury ‘‘may continue deliberating if you
can.’’ The court was discussing with counsel a response
to the penultimate note regarding the conspiracy charge
when it received the jury’s final note stating that it
had reached a verdict. In accordance with the court’s
instructions, the jury had continued to deliberate and
had reached a verdict before the court could address
the jury’s note requesting clarification of the language
pertaining to the conspiracy charge.
The court, after receiving the final note and before
bringing the jury into the courtroom, addressed counsel
as follows:
‘‘The Court: Counsel, we’ve received some notes from
the jury that will be marked as court exhibits. Earlier
today, we received notes in which the jurors asked for
copies of the court’s instructions and magic markers,
and we provided those. Then at 4:10 [p.m.], we received
a note from the jury asking for clarification of the con-
spiracy discussions. While I was discussing that with
counsel, at 4:25 p.m., we received a note from the jury
saying we have a verdict on all six charges. So, absent
objection, I propose that we proceed directly to receiv-
ing the verdict.
‘‘[The Prosecutor]: Yes, Your Honor.
‘‘[Defense Counsel]: Yes, Your Honor.
‘‘The Court: Mark these and we’ll call the jury.’’
Now, on appeal, the defendant raises for the first
time his claim that the trial court was obligated to
respond to the jury’s note requesting clarification of
the conspiracy charge before it could proceed to a ver-
dict. The defendant acknowledges that he did not object
to the court’s proposal to proceed to a verdict at the
time of trial, but he argues that the provisions of Prac-
tice Book § 42-27 are mandatory and cannot be waived
by defense counsel. He seeks review pursuant to State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),10
or to prevail under the plain error doctrine. The state
argues that defense counsel waived any claim regarding
the handling of the note at issue when he expressly
assented to the court’s proposed course of action. We
agree with the state.
‘‘A defendant in a criminal prosecution may waive
one or more of his or her fundamental rights. . . . [I]n
the usual Golding situation, the defendant raises a claim
on appeal [that], while not preserved at trial, at least
was not waived at trial.’’ (Citation omitted; internal
quotation marks omitted.) State v. Kitchens, 299 Conn.
447, 467, 10 A.3d 942 (2011). ‘‘Both our Supreme Court
and this court have stated the principle that, when a
party abandons a claim or argument before the trial
court, that party waives the right to appellate review
of such claim because a contrary conclusion would
result in an ambush of the trial court . . . . [W]aiver
is [t]he voluntary relinquishment or abandonment—
express or implied—of a legal right or notice. . . . In
determining waiver, the conduct of the parties is of
great importance. . . . [W]aiver may be effected by
action of counsel. . . . When a party consents to or
expresses satisfaction with an issue at trial, claims aris-
ing from that issue are deemed waived and may not be
reviewed on appeal. . . . Thus, [w]aiver . . . involves
the idea of assent, and assent is an act of understand-
ing.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. McLaughlin, 135 Conn. App. 193, 198, 41
A.3d 694, cert. denied, 307 Conn. 904, 53 A.3d 219 (2012).
‘‘The rule is applicable that no one shall be permitted
to deny that he intended the natural consequences of
his acts and conduct. . . . In order to waive a claim
of law it is not necessary . . . that a party be certain
of the correctness of the claim and its legal efficacy. It
is enough if he knows of the existence of the claim and
of its reasonably possible efficacy. . . . Connecticut
courts have consistently held that when a party fails to
raise in the trial court the constitutional claim presented
on appeal and affirmatively acquiesces to the trial
court’s order, that party waives any such claim.’’ (Inter-
nal quotation marks omitted.) State v. Velez, 113 Conn.
App. 347, 357–58, 966 A.2d 743, cert. denied, 291 Conn.
917, 970 A.2d 729 (2009).
The reason that the objection must be raised at trial is
to afford the court an opportunity to correct an allegedly
improper ruling or procedure. ‘‘When we speak of cor-
recting the claimed error, we mean when it is possible
during that trial, not by ordering a new trial. We do not
look with favor on parties requesting, or agreeing to,
an instruction or a procedure to be followed, and later
claiming that that act was improper.’’ (Internal quota-
tion marks omitted.) Id., 358. ‘‘[A] defendant may not
pursue one course of action at trial for tactical reasons
and later on appeal argue that the path he rejected
should now be open to him . . . .’’ (Internal quotation
marks omitted.) State v. Thompson, 146 Conn. App.
249, 260–61, 76 A.3d 273, cert. denied, 310 Conn. 956,
A.3d (2013).
‘‘A defendant who has waived a claim at trial . . .
is not entitled to Golding review. . . . [A] constitu-
tional claim that has been waived does not satisfy the
third prong of the Golding test because, in such circum-
stances, we simply cannot conclude that injustice [has
been] done to either party . . . or that the alleged con-
stitutional violation clearly exists and clearly deprived
the defendant of a fair trial . . . .’’ (Citation omitted;
internal quotation marks omitted.) State v. McLaughlin,
supra, 135 Conn. App. 198. Furthermore, ‘‘[a] valid
waiver . . . thwarts plain error review of a claim. [The]
Plain Error Rule may only be invoked in instances of
forfeited-but-reversible error . . . and cannot be used
for the purpose of revoking an otherwise valid waiver.
This is so because if there has been a valid waiver,
there is no error for us to correct.’’ (Internal quotation
marks omitted.) State v. Velez, supra, 113 Conn. App.
361 n.8.
In the present case, the trial court, after stating on
the record that it had received the jury note requesting
a clarification of the conspiracy charge and the subse-
quent jury note indicating that the jury had reached a
verdict, made the following suggestion to counsel: ‘‘So,
absent objection, I propose that we proceed directly to
receiving the verdict.’’ If defense counsel disagreed with
the court’s proposal and preferred that the jury note
requesting clarification be addressed, the court had
given him the opportunity to express his thoughts on
the matter. Defense counsel, however, raised no objec-
tion to proceeding to verdict without addressing the
penultimate jury note and, in fact, affirmatively agreed
to the court’s proposal. Permitting the defendant now
to seek reversal of his conviction due to the procedure
followed by the court, to which defense counsel
expressly assented at trial, would result in an ambus-
cade of the trial court.
The defendant argues, however, that Practice Book
§ 42-27 is mandatory; see State v. Fletcher, 10 Conn.
App. 697, 702, 525 A.2d 535 (1987), aff’d, 207 Conn. 191,
540 A.2d 370 (1988); and cannot be waived by defense
counsel. He cites no persuasive authority in support of
the claim that the rule cannot be waived, and our case
law indicates to the contrary. ‘‘Although a defendant
will not be deemed to have waived certain constitu-
tional rights unless the state can demonstrate that the
defendant’s waiver was knowing and intelligent; see,
e.g., State v. T.R.D., 286 Conn. 191, 202–203, 942 A.2d
1000 (2008) (defendant’s waiver of counsel must be
knowing and intelligent); State v. Reid, 277 Conn. 764,
780, 894 A.2d 963 (2006) (defendant’s guilty plea must
be knowing and voluntary); that requirement is inappli-
cable when . . . counsel has waived a potential consti-
tutional claim in the exercise of his or her professional
judgment. . . . In our adversary system, the trial court
was entitled to presume that defense counsel was famil-
iar with [case law] and had acted competently . . . .
To conclude otherwise would require the trial court
to canvass defense counsel with respect to counsel’s
understanding of the relevant constitutional principles
before accepting counsel’s agreement on how to pro-
ceed. For good reason, there is nothing in our criminal
law that supports such a requirement.’’ State v. Holness,
289 Conn. 535, 544, 958 A.2d 754 (2008).
In summary, defense counsel agreed to the court’s
proposal to proceed to a verdict instead of responding
to the jury’s penultimate note requesting clarification
of the conspiracy charge. The defendant waived any
claim to have the court issue additional instructions in
response to that note pursuant to Practice Book § 42-
27, and the defendant therefore waived any appellate
issues connected to the court’s decision to proceed to
a verdict. Accordingly, we decline to review the defen-
dant’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury found the defendant not guilty of the charges of home invasion
in violation of § 53a-100aa (a) (2), burglary in the first degree in violation
of § 53a-101 (a) (1), and robbery in the first degree in violation of § 53a-134
(a) (4).
2
Jose Guerrero, Carlos Guerrero and Vasques are originally from El
Salvador.
3
The court imposed sentence on the conviction of conspiracy to commit
home invasion. The counts for conspiracy to commit burglary in the first
degree and conspiracy to commit robbery in the first degree were merged
into the conviction of conspiracy to commit home invasion.
The defendant did not raise the issue, before or at the time of oral argument
before this court, of whether the trial court should have vacated the convic-
tions on two of the conspiracy charges and sentenced the defendant on the
remaining conspiracy conviction instead of merging two of the conspiracy
convictions into the conviction on the conspiracy to commit home invasion
charge. See State v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013); State
v. Wright, 144 Conn. App. 731, 748, 73 A.3d 828, cert. granted, 310 Conn.
945, A.3d (2013). Because he had the opportunity but failed to do so,
this court declines to rule on this issue in this appeal.
4
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.’’
5
General Statutes § 53a-100aa (a) provides in relevant part: ‘‘A person is
guilty of home invasion when such person enters or remains unlawfully in
a dwelling, while a person other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime therein, and, in the
course of committing the offense . . . (2) such person is armed with explo-
sives or a deadly weapon or dangerous instrument.’’
6
General Statutes § 53a-101 (a) provides in relevant part: ‘‘A person is
guilty of burglary in the first degree when (1) such person enters or remains
unlawfully in a building with intent to commit a crime therein and is armed
with explosives or a deadly weapon or dangerous instrument . . . .’’
7
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 . . . (4) displays or threat-
ens the use of what he represents by his words or conduct to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm . . . .’’
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.’’
8
Practice Book § 42-27 provides: ‘‘If the jury, after retiring for delibera-
tions, 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.’’
9
The subject sentence in the court’s jury instructions provided: ‘‘It is
enough if he knows that a conspiracy exists or that he is creating one and
that he intends to join with at least one other person in an agreement to
commit a crime.’’
The defendant claims that the inquiry indicated that the jury believed
that the defendant’s mere knowledge of the existence of a conspiracy was
sufficient to convict him of the conspiracy charges.
We note that this court upheld an identical conspiracy instruction when
challenged in State v. Taylor, 132 Conn. App. 357, 361–67, 31 A.3d 872(2011), appeal dismissed, 309 Conn. 83, 71 A.3d 464 (2013) (certification
improvidently granted). In Taylor, the trial court also gave the following
instruction with respect to conspiracy: ‘‘The mere knowledge, acquiescence
or approval of the object of the agreement without cooperation or agreement
to cooperate, however, is not sufficient to make one a party to a conspiracy
to commit the criminal act.’’ (Emphasis omitted; internal quotation marks
omitted.) Id., 363. An identically worded instruction was given by the court
in the present case, and, significantly, that instruction immediately followed
the language questioned by the jury in its note to the court. The fact that
it reached its verdict less than twenty minutes after having made that inquiry
suggests that the jury continued to review the written jury instructions
during its deliberations and discovered the answer to its inquiry on its own.
10
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists and clearly deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, 213 Conn. 239–40.