State v. Leggett

892 A.2d 1000

94 Conn.App. 392

STATE of Connecticut v. Jerome LEGGETT.

No. 25189.

Appellate Court of Connecticut.

Argued November 17, 2005.

Decided March 21, 2006.

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David J. Reich, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Thomas R. Garcia, assistant state's attorney, for the appellee (state).

LAVERY, C.J., and SCHALLER and GRUENDEL, Js.^*

GRUENDEL, J.

The defendant, Jerome Leggett, appeals from the judgment of conviction, rendered after a jury trial, of two counts of robbery in the second degree in violation of General Statutes §§ 53a-135 (a) (2) and 53a-8, and one count of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-135 (a)(2) and 53a-48 (a). On appeal, the defendant claims that (1) there was insufficient evidence to convict him of (a) conspiracy to commit robbery, (b) robbery of the store clerk and (c) robbery of a customer, and (2) the trial court improperly instructed the jury on (a) the element of intent and (b) Pinkerton¹ liability. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts concerning this case, which involves the robbery of a 7-Eleven convenience store on Oakwood Avenue in West Hartford by the defendant, James Arnold² and Reginald Sledge.³ On October 31, 2001, the three men met in Hartford. Arnold and Sledge had previously agreed to commit a robbery that evening⁴ and obtained a facsimile of a weapon for use in carrying out their plan.⁵ The defendant accompanied one of the men that evening, and all three gathered in Sledge's car.⁶ Once together, Arnold asked if Sledge would drive "them to go do a score," and Sledge agreed to drive "them somewhere to do something." (Emphasis added.)

The three men first obtained some heroin and cocaine, which they mixed and injected.⁷ They then proceeded to an abandoned building where Arnold obtained some clothing to disguise his appearance for the robbery. He also returned with some vodka, which the three men consumed. While drinking, Arnold asked Sledge what they could do and where could they go. Arnold suggested the 7-Eleven that they ultimately robbed. Once the men arrived in the vicinity of the 7-Eleven, the defendant and Arnold started bickering over whether one of them was going to "blow everything" and whether they should call off their plans. Sledge warned them to "keep a clear head" because there were police around. Sledge then parked his car on a nearby residential street. Arnold and the defendant exited the car and headed in the direction of the 7-Eleven.

At about 1 a.m., Nafiou Salaou was working alone as a clerk at the 7-Eleven. Salaou was near the counter speaking with Donna Zuerblis, the only customer in the store at that time. The defendant entered the 7-Eleven first and started walking around the store. Arnold entered the store next, walked in front of the counter and stood next to Zuerblis.⁸ Arnold then took the facsimile of a gun, pointed it at Salaou and ordered that he open the cash register. After getting the money from the register, Arnold ordered Salaou and Zuerblis to lie down on the floor. Immediately after Arnold announced the robbery, at the same time that he was stealing the money, the defendant went behind the counter and took some cigarettes, which he placed in a plastic bag. The defendant then exited the store, returned to the car where Sledge was waiting and informed him that Arnold was still inside the store with the customer. Arnold remained in the store and took money and jewelry from Zuerblis before exiting.

At about the same time the defendant was leaving the store, Sergeant Donald Melanson of the West Hartford police department was on patrol in his marked police cruiser. While driving past the 7-Eleven, Melanson observed the defendant walking away from the store, suspiciously fumbling with the cartons of cigarettes. Melanson then turned his car around to return to the 7-Eleven to investigate. When the defendant and Sledge noticed that a police car was nearby, they departed, leaving Arnold behind at the store.⁹ When Melanson returned to the store, he observed a car, without headlights, driving away from the property. Melanson then approached the door to the store, encountering Arnold. Arnold ignored Melanson, and proceeded toward where the car had been, yelling something to the effect of "don't leave without me." Salaou then told Melanson that Arnold had robbed him at gunpoint. Arnold was apprehended nearby shortly thereafter.

In an amended long form information, the state charged the defendant with two counts of robbery in the second degree in violation of §§ 53a-135 (a)(2) and 53a-8 (a), and one count of conspiracy to commit robbery in the second degree in violation of §§ 53a-135 (a)(2) and 53a-48 (a). The defendant entered a pro forma plea of not guilty to all counts. Following trial, on September 29, 2003, the jury returned a verdict of guilty on all three counts. The court rendered judgment of conviction in accordance with the jury's verdict and, on December 16, 2003, sentenced the defendant to an effective term of twenty years of incarceration, suspended after eight years, followed by five years of probation. This appeal followed.

I

The defendant's first three claims challenge the sufficiency of the evidence supporting his conviction on each of the three counts charged in the information. We do not find his arguments persuasive.

We begin by setting forth our standard of review. "The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, 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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict. . . . In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference." (Citation omitted; internal quotation marks omitted.) State v. Sanchez, 92 Conn.App. 112, 118, 884 A.2d 1, cert. granted on other grounds, 276 Conn. 932, 890 A.2d 573 (2005).

A

The defendant first claims that there was insufficient evidence for the jury to find him guilty of conspiracy to commit robbery in the second degree under §§ 53a-135 (a)(2) and 53a-48. Specifically, the defendant argues that the state failed to show that he had the intent to agree to commit the robbery and that even if he had the intent to enter the store with Arnold, the state failed to show that he had the intent to use force or threatened force to carry out a larceny. We conclude that there was sufficient evidence for the jury reasonably to have found the defendant guilty of conspiracy to commit robbery in the second degree.

The essential elements of the crime of conspiracy are well established. "To sustain a conviction under § 53a-48 (a),¹⁰ the state needs to prove beyond a reasonable doubt (1) that a defendant intended that conduct constituting a crime be performed, (2) that he agreed with one or more persons to engage in or cause the performance of such conduct and (3) that he or any one of those persons committed an overt act in pursuance of such conspiracy. . . . While the state must prove an agreement, the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts." (Citations omitted; internal quotation marks omitted.) State v. Davis, 68 Conn.App. 794, 798-99, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002); see also State v. Smith, 15 Conn. App. 122, 127, 543 A.2d 301 (conspiracy found where defendant arrived with principal, other associates, attempted to distract store owners, left moments before actual theft, attempted to flee with associates), cert. denied, 209 Conn. 805, 548 A.2d 441 (1988).

The defendant argues that there is insufficient evidence that he intended to agree to the conspiracy to commit robbery because he expressly disavowed his intent to participate in a robbery. He relies on Arnold's testimony that it was made clear that the defendant "only steals, he don't do robberies" and that "[h]e wasn't there to do the robbery, he was going out to steal cigarettes." "[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." (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005). The jury reasonably could have discredited Arnold's testimony of the defendant's intent to commit only larceny. "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.) State v. Flowers, 85 Conn.App. 681, 692, 858 A.2d 827, cert. granted on other grounds, 272 Conn. 910, 863 A.2d 703 (2004).

The defendant further argues that the state failed to prove that he intended to agree with Sledge and Arnold to the conspiracy to commit robbery.¹¹ The defendant supports his assertion with citations to...