State Of Conn. v. Mcgee., No. 30329.

• Decision Date: 05 October 2010
• Docket Number: No. 30329.
• Citation: 124 Conn.App. 261,4 A.3d 837
• Parties: STATE of Connecticut v. Frank McGEE.
• Court: Connecticut Court of Appeals

124 Conn.App. 261

4 A.3d 837

STATE of Connecticut

v.Frank McGEE.

No. 30329.

Appellate Court of Connecticut.

Argued June 1, 2010.

Decided Oct. 5, 2010.

Mary Beattie Schairer, special public defender, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Cynthia Serafini, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEAR and SCHALLER, Js.

DiPENTIMA, C.J.

The defendant, Frank McGee, appeals from the judgment of conviction, following a jury trial, of two counts of robbery in the second degree in violation of General Statutes § 53a-135 (a)(1) and (2), respectively, conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-135 (a)(2), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a)(2) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a)(3). ¹ He claims on appeal that the trial court improperly (1) rendered judgment of conviction on two counts of robbery in the second degree that is legally inconsistent with his acquittal on the underlying charge of larceny in the second degree in violation of General Statutes § 53a-123 (a)(3) and should be vacated, (2) failed to instruct the jury on specific intent for the charges of robbery and conspiracy, and (3) rendered judgment against him on the charge of sexual assault, although there was insufficient evidence to prove all of the required elements of that crime. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1 a.m. on March 23, 2007, the victims, D and T, ² were on Pine Street in Waterbury, where they purchased a small amount of cocaine from an unidentified individual. Soon thereafter, a silver Lexus, driven by the defendant, pulled up to the victims. When the victims started to drive away in D's car, the defendant continued to follow them closely until D pulled over and the victims got out of the car. The defendant began asking D and T if they wanted to “get shot.” The defendant reached into his car, took out a case and told D and T that he had something for them. D and T both testified that they assumed that there was a gun in the black case. The defendant started going through D's pockets and found $6, which he took from him. The defendant then searched T for cocaine by placing his hands on different parts of her body. He lifted up her shirt and began touching T's breasts roughly under her bra, which later caused bruising to that area. D went to his home, two houses away, and called 911. Police officers arrived and found a car matching the description given by D on Congress Avenue. D and T went to Congress Avenue and positively identified the defendant and the other occupants of his car, who were arrested. Additional facts will be set forth as necessary.

I

The defendant first claims that the conviction of two counts of robbery in the second degree is legally inconsistent with the acquittal on the underlying larceny charge, and he asks that the conviction of the two robbery charges be vacated. The defendant, however, acknowledged at oral argument before this court that State v. Arroyo, 292 Conn. 558, 585-86, 973 A.2d 1254 (2009), cert. denied, --- U.S. ----, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010), decided after the filing of the defendant's brief, controls most of this claim. He argues, however, that Arroyo does not control the portion of his claim that alleges that under the doctrine of collateral estoppel, the inconsistent verdicts as to the robbery charges must be vacated. We disagree.

In Arroyo, our Supreme Court determined that a claim of legally inconsistent verdicts is not reviewable on appeal. Id. The court was guided by its own precedent and the United States Supreme Court case of United States v. Powell, 469 U.S. 57, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). The court in Arroyo stated that “[t]he court [in Powell ] reasoned that inconsistent verdicts ... should not necessarily be interpreted as a windfall to the [g]overnment at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the [g]overnment has no recourse if it wishes to correct the jury's error; the [g]overnment is precluded from appealing or otherwise upsetting such an acquittal by the [c]onstitution's [d]ouble [j]eopardy [c]lause.... The fact that the inconsistency may be the result of lenity, coupled with the [g]overnment's inability to invoke review, suggests that inconsistent verdicts should not be reviewable....

“The court in Powell also noted that an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake.... Finally, the court recognized that a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.” (Citations omitted; internal quotation marks omitted.) Id., at 585, 973 A.2d 1254.

After a thorough discussion of the state and federal precedent, the court in Arroyo determined that “[b]ecause [the] reasoning [in Powell ] is consistent with our decisions in [ State v. Whiteside, 148 Conn. 208, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961), and State v. Rosado, 178 Conn. 704, 425 A.2d 108 (1979) ], we find it persuasive.... Accordingly, we conclude that claims of legal inconsistency between a conviction and an acquittal are not reviewable.” (Citations omitted; internal quotation marks omitted.) Id., at 585-86, 973 A.2d 1254. The defendant's similar claim in the present case is likewise not reviewable.

The defendant alternatively argues that the doctrine of collateral estoppel requires vacating the verdict as to the two counts of robbery. He claims that the reasoning behind collateral estoppel, “in conjunction with basic concepts of ‘realism and rationality,’ ” applies to a case in which the jury finds the defendant not guilty of an underlying offense. With no analysis, he asserts that this court's statement in State v. Ortiz, 29 Conn.App. 825, 618 A.2d 547 (1993), that collateral estoppel principles do not apply as against different charges brought in the same trial; id., at 836 n. 6, 618 A.2d 547; is distinguishable. We are not persuaded. This claim, however interpreted, cannot stand in the face of Arroyo. Accordingly, the defendant's claim that collateral estoppel requires that his conviction of two counts of robbery in the second degree be vacated is likewise controlled by Arroyo and is not reviewable.

II

The defendant next claims that the court improperly failed to instruct the jury on specific intent for the charges of robbery and conspiracy. Specifically, the defendant asserts that the court set out the definition of general intent during its instructions related to the larceny charge and then only referred back to that charge when instructing the jury on the robbery and conspiracy charges. The defendant claims that the jury was misled and that he was deprived of a fair trial. We do not agree.

We first set forth our well settled standard of review. “The standard of review for claims of instructional impropriety is well established. [I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge.... The pertinent test is whether the charge, read in its entirety, 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.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict ... and not critically dissected in a microscopic search for possible error .... Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Emphasis in original; internal quotation marks omitted.) State v. Castillo, 121 Conn.App. 699, 707, 998 A.2d 177, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).

Because the defendant filed a request to charge on specific intent, this issue is preserved for appellate review. See Practice Book § 16-20. The following undisputed facts and procedural history are important to the resolution of this claim. On February 28, 2008, before the start of evidence, the court engaged in a discussion with both counsel, on the record, about the various crimes being charged and the elements of those crimes. The court said that to prove the charge of larceny, the state would need to prove that the defendant had the “intent to deprive another of property and to appropriate the same to himself,” with which the defendant agreed. The court went on to discuss the charges of robbery and conspiracy, and the defendant offered no comments at that time requesting a specific intent charge on those counts. Following the close of evidence, the defendant filed a request to charge with the court. On March 6, 2008, the court held a charge conference in chambers with both attorneys present. Following that conference, the court provided both counsel with a copy of the proposed charge. On March 10, 2008, the court discussed with both counsel the proposed jury instructions. On that same date, the court instructed...