State v. Smith

STATE OF CONNECTICUT v. TREMAINE S. SMITH

AC 33542

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 15, 2013

Officially released March 18, 2014

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(Appeal from Superior Court, judicial district of

Waterbury, Prescott, J.)

Elizabeth M. Inkster, assigned counsel, and Samuel Greenberg, certified legal intern, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Terence D. Mariani, Jr., senior assistant state's attorney, for the appellee (state).

Opinion

BEAR, J. The defendant, Tremaine S. Smith, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (3). On appeal, the defendant claims that (1) there was insufficient evidence to convict him of attempt to commit robbery in the first degree, and (2) prosecutorial impropriety during final argument deprived him of his due process right to a fair trial. We agree that there was insufficient evidence presented to the jury to convict the defendant of attempt to commit robbery in the first degree, and accordingly, we reverse the judgment of the trial court. Because the defendant's insufficient evidence claim is dispositive of the present appeal, we do not address the defendant's prosecutorial impropriety claim.

The following facts that reasonably could have been considered or found by the jury and procedural history are relevant to our decision. The defendant and the female complainant became romantically involved in April, 2009. The defendant went to prison in August, 2009. In mid to late November, 2009, the defendant in one mailing sent $294 in cash to the complainant, and he told her to use the money to hire a lawyer or obtain a bond for him. The complainant represented to the defendant in their communications during his incarceration that she would hire a lawyer or obtain a bond for him with the money that he had sent to her, but she did not do so. Instead, she kept the specific bills that the defendant had sent to her, and at the time of trial she still had control of most of those bills, other than those she had returned to him after the incident that led to his arrest.

On Sunday, November 29, 2009, the defendant and the complainant spoke on the telephone. The defendant was angry that she had not hired a lawyer for him, and he told her that he would see her upon his release from prison. She believed that he would be released from prison on the following Friday, December 4, 2009, based on what he had told her.

The defendant, however, was released from prison on Monday, November 30, 2009. At 5:45 p.m., he called Shanika Crews, who was approximately five and one-half months pregnant with the defendant's son at the time of the incident. He asked her to meet with him at a residence on Buckingham Street in Waterbury. After they had spent some time together with his family there, he asked to borrow her cell phone, and, shortly thereafter, she drove him to Platt Street in Waterbury, at his request. The defendant exited the vehicle upon their arrival at Platt Street and ran down an alley. He returned to the vehicle ten to fifteen minutes later and told her that the complainant was not there. Crews thenreceived a call on her cell phone from an unidentified caller. She gave the phone to the defendant, and, after the defendant spoke to the caller, he instructed Crews to drive him to Aldi's, a grocery store located near the Waterbury Plaza shopping center in Waterbury.

Meanwhile, on that day, the complainant left her home on North Main Street in Waterbury for a period of time during the day. She learned from her mother upon her return that the defendant had called to say that he had been released from prison and that he was going to stop by her home. At approximately 7:30 p.m., the complainant left her home to get something to eat at the Subway sandwich shop located in the Waterbury Plaza. She was accompanied by her brother and a friend.

The defendant exited the vehicle driven by Crews when he saw the complainant, her brother, and her friend walking toward the Waterbury Plaza. The complainant testified that she heard somebody call out her name as she, her brother, and her friend walked, and when she looked, she saw the defendant. Both she and her brother testified that the defendant was talking on a cell phone as he approached them, and he angrily said, "I found this bitch, and I'm gonna fuck her up." The complainant's friend testified, however, that the defendant exited the vehicle upon seeing them, hugged her and the complainant's brother,¹ and began asking the complainant questions, at least one of which was about a lawyer. The complainant's brother testified that the defendant also asked the complainant "about some type of money," as soon as he finished his phone call. The complainant's friend further testified that the defendant was "[c]alm at first . . . ."

In contrast, the complainant testified that the defendant was "mad," and that she started to back away because she thought he was "crazy" and "losing it." The defendant and the complainant then began to engage in a series of struggles in which they argued, the defendant grabbed the complainant, and the complainant broke free and tried to walk away. The complainant testified that the argument was about the defendant's desire to have the complainant go with him in order to get his money and her refusal to do so. She had intended to return the money to him, but she told him that "he wasn't getting [the money]" because he "had the knife and was acting crazy," "was pulling and grabbing on" her, and was "tripping . . . ." She also testified: "I said I don't have the money with me out here. I said the money is with my sister."

The defendant grabbed the complainant by her hair, arm, and neck. He had a pocketknife in one of his hands. There was conflicting testimony about whether the defendant placed the knife on the complainant or pointed it at her during this series of struggles. The complainant testified that the defendant held the knife to her stomach, while the complainant's brother testi-fied that the defendant did not place the knife on or point the knife at the complainant's neck or stomach. The defendant did not say "give me your money," "give me your cell phone because you owe me money," or "empty out your pockets and let me see how much money you have" during this series of struggles.² The complainant's friend and the complainant's brother tried to intervene, but the defendant threatened to kill them if they did not leave.

After the complainant broke free of the defendant's grasp on her neck, Crews exited her vehicle, grabbed the complainant by the arm, and told her to get into the vehicle. The complainant refused, "freak[ed] out," and told Crews to let her go. While the complainant and Crews struggled near the car, the defendant approached them and swore on the life of his unborn son that he would kill the complainant. Crews released the complainant, and the complainant began to run toward her house. The defendant, the complainant's brother, and the complainant's friend followed her. The complainant testified that she ran, while the complainant's friend and the complainant's brother testified that they, the defendant, and the complainant were all walking fast. The complainant told her brother to get help, and he left in order to do so.

The defendant caught up with the complainant in front of a flower shop located between Aldi's and the complainant's house. He grabbed the hood of her sweatshirt and ripped out some of her hair extensions in the process. An unidentified person pulled up to them in his vehicle and said that he was going to call the police. The complainant testified that the car approached while she and the defendant stood in front of the flower shop and argued about "[t]he money." She provided in her written statement to the police, however, that the defendant "was pulling [her]" when the unidentified person pulled up to them. When the defendant approached the unidentified person and his vehicle, the complainant began to walk away.

The defendant caught up with the complainant again at the firehouse across the street from the flower shop. The complainant testified: "I'm sitting in the grass because I fell and [the complainant's friend was] standing on one side and he's standing there in front of me with the knife, and the firefighter came and asked if everything was good." The complainant testified...