State v. Brown

11 A.3d 663

299 Conn. 640

STATE of Connecticut

v.Randall BROWN.

No. 17891.

Supreme Court of Connecticut.

Argued Feb. 9, 2010.

Decided Jan. 5, 2011 ^*.

Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Gail P. Hardy, state's attorney, and, on the brief, Herbert Carlson, supervisory assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.^**

McLACHLAN, J.

The defendant, Randall Brown, appeals,¹ from the trial court's judgment of conviction, following a jury trial, of felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a (a), robbery in the first degree in violation of General Statutes §§ 53a-134 (a)(4) and 53a-8, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a)(2) and 53a-134 (a)(4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a)(4), carrying a pistol or revolver without a permit in violation of General Statutes § 29-35(a) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a)(1). The defendant claims that: (1) the evidence was insufficient to support his conviction of robbery; (2) his conviction of both robbery and attempted robbery violates the prohibition against double jeopardy in the state and federal constitutions; (3) the trial court improperly instructed the jury on specific intent for the crimes of robbery, attempt to commit robbery, conspiracy to commit robbery and murder; and (4) the trialcourt improperly instructed the jury regarding liability pursuant to the doctrine set forth in Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 23, 2005, Jamar Williams, a cousin of the victim, Demarco Mitchell, went for a drive with the defendant. The defendant, who was driving, parked in front of a two-family house located at 103-105 Colebrook Street in Hartford. An individual then approached the passenger side of the vehicle. After greeting Williams and the defendant, the individual removed a gun from underneath his shirt and passed it across Williams to the defendant. The defendant then drove away.

Later that day, Eddy Hall, Jr., and Idris France were visiting Chijoke Jackson at Jackson's home at 103 Colebrook Street. Either Jackson or France suggested that the three of them should rob someone that evening.² Jackson suggested that they rob the victim because Jackson knew that he sold crack cocaine and would have drugs with him. Hall, Jackson and France developed the following plan. Hall and Jackson would meet with the victim under the pretense of purchasing drugs. France would then approach the car and rob the victim as well as Hall and Jackson to prevent the victim from suspecting that he had been set up.

After receiving a call on his cell phone, France told Hall and Jackson that the defendant wanted to be included in the robbery. Jackson then contacted the victim and suggested that they meet at a nearby car wash, but the victim said that he did not feel safe meeting at the car wash and suggested that they meet on Colebrook Street. Jackson agreed. France then left through the front door of Jackson's home. Hall and Jackson left through the back door and got into a Nissan Maxima. Jackson drove the Maxima to the front of the house and parked on Colebrook Street. Before leavingthe apartment, Hall noticed that France was carrying a small handgun.

At approximately the same time, the victim and his two half brothers, Devon Roberts and Lamont Davis, drove to Colebrook Street. The victim had told Roberts that they were going to meet someone named Chi,³ who wanted to purchase crack cocaine. When the victim drove up behind the Maxima, Jackson called France's cell phone to alert him of the victim's arrival. In the rearview mirror, Jackson saw the defendant standing in the street behind the car. The victim got into the backseat of the Maxima and passed Jackson some cocaine. France then approached the driver's side of the Maxima and said that he wanted to buy some compact discs from Jackson. When France said that he was actually interested in purchasing cocaine, and began removing money from his pocket, Jackson warned France that he was being too obvious and told him to get in the backseat, which he did. The victim said that he had one ounce of crack cocaine and could sell some to both France and Jackson.

France took out a gun and pointed it at the victim's head. The victim slapped the gun away, and he and France struggled for control of the gun. Meanwhile, Halljumped out of the car and ran down Colebrook Street, and the defendant ran after Hall with a gun in his hand. Hall saw that the defendant was chasing him and laid facedown on the ground. The defendant stood over Hall, and pointed the gun at his head. France then yelled to the defendant that Hall was "fam," meaning family.

France next gestured that the defendant should run after the victim, who had jumped out of the car and was running in the opposite direction down Colebrook Street. When France's attempt to shoot the victim failed,he shouted at the defendant to shoot the victim. The defendant ran after the victim, who tripped and fell near the curb of 103-105 Colebrook Street. The defendant then stood over the victim and shot him in the head. After searching the victim's pockets, the defendant got into a car driven by Jackson and drove away.

The record also reveals the following procedural history. The defendant was charged with felony murder, murder, robbery in the first degree, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, carrying a pistol without a permit and criminal possession of a firearm. The jury returned a verdict of guilty on all seven counts. On January 12, 2007, the court sentenced the defendant to a total effective term of fifty-five years incarceration.⁴ This appeal followed.

I

The defendant first claims that the state failed to prove beyond a reasonable doubt that he had committed robbery in the first degree as either a principal or an accessory. The defendant maintains that the evidence was insufficient to permit the jury to find beyond a reasonable doubt that either he or one of the coconspirators unlawfully took property from the victim. Specifically, the defendant argues that to conclude, from the evidence presented, that the defendant took the victim's property would amount to mere conjecture and speculation on the part of the jury. In response, the state contends that testimony from Hall and Jackson provided sufficient evidence to support the jury's verdict. We agree with the state.

"In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidencein the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." (Internal quotation marks omitted.) State v. Bruno, 293 Conn. 127, 135-36, 975 A.2d 1253 (2009).

Additionally, "the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying thoseconclusions need not be proved beyond a reasonable 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. Morgan, 274 Conn. 790, 799, 877 A.2d 739 (2005). "Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts whichestablishes guilt in a case involving substantial circumstantial evidence.... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 148, 939 A.2d 524, cert. denied, --- U.S. ----, 129 S.Ct. 133, 172 L.Ed.2d 101 (2008).

Finally, "[t]he trier of fact may credit part of a witness' testimony and reject other parts." (Internal quotation marks omitted.) State v. Millan, 290 Conn. 816, 825, 966 A.2d 699 (2009). "[W]e must defer to the jury's assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.)...