State v. Abraham

Decision Date24 July 2001
Docket Number(AC 20500)
Citation64 Conn. App. 384,780 A.2d 223
CourtConnecticut Court of Appeals
PartiesSTATE OF CONNECTICUT v. OSCAR ABRAHAM

Lavery, C. J., and Schaller and Hennessy, JS. Mark Diamond, special public defender, for the appellant (defendant).

Linda N. Howe, assistant state's attorney, with whom, on the brief, was Robert Brennan, assistant state's attorney, for the appellee (state).

Opinion

HENNESSY, J.

The defendant, Oscar Abraham, appeals from the judgments of conviction, rendered following a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2),1 conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48,2 criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1997) § 53a-217c,3 carrying a pistol or revolver without a permit in violation of General Statutes (Rev. to 1997) § 29-35 (a)4 and possession of a weapon in a motor vehicle in violation of General Statutes (Rev. to 1997) § 29-38.5 On appeal, the defendant claims that the trial court improperly (1) denied his motion for a mistrial and impermissibly permitted the state to introduce evidence of his prior convictions and (2) denied his motion for a judgment of acquittal when the state failed to prove his guilt beyond a reasonable doubt. The defendant additionally contends that (1) he received ineffective assistance of legal counsel in violation of his federal and state constitutional rights, (2) his conviction of the crimes of robbery in the first degree and criminal possession of a pistol or revolver violated his constitutional right against double jeopardy, and (3) the trial court's instructions to the jury improperly diminished the presumption of innocence standard and shifted the state's burden of proof. Further, the defendant asserts in his supplemental brief that his conviction of the crime of conspiracy to commit robbery should be vacated because the codefendant in this joint trial was acquitted of the charge.6 We agree with the defendant's claim on the conspiracy charge, but affirm the judgments of the trial court on all other claims.

The jury reasonably could have found the following facts. On October 21, 1998, at approximately 4:45 a.m., the defendant and another man alleged to be Israel Garcia purchased food from a grocery store that was owned by William Acevedo and Augberto Gonzalez. Shortly thereafter, Acevedo was confronted by two men dressed in black and wearing black masks. The taller of the two men, later found to be the defendant, held a pistol and stole $160 from Acevedo. When Acevedo resisted, the defendant fired the pistol in the direction of the ground and again in the direction of Acevedo as he fled to the back of the store. The other robber held a customer down on the floor at knifepoint.

William Reilly, a police officer from the Bridgeport police department, arrived at the grocery store to investigate the robbery. He discovered the shell casing of a ten millimeter bullet on the floor of the store. After interviewing Acevedo, Reilly disseminated a police broadcast with the description of the perpetrators and the automobile in which they drove. A few hours later, Officer Daniel Garcia of the Bridgeport police department spotted a motor vehicle that matched the description in the police broadcast. After a short chase, the driver of the motor vehicle pulled over, and the three occupants of the automobile ran away. The driver of the motor vehicle leaped over a fence and escaped, but left his jacket behind. The police officer described the driver as a tall Hispanic male. Inside the jacket pocket, Officer Garcia found a live ten millimeter bullet.

The two other occupants of the car were apprehended shortly thereafter. One of the passengers, a short male wearing dark clothing, was later identified as the codefendant Israel Garcia. The other passenger was identified as Denise Holland. Later that day, Holland provided a statement to the police in which she claimed that the defendant and the codefendant Garcia had robbed the grocery store.

Two days later, on October 23, 1998, while on patrol at a housing project, Brian Fitzgerald, a police officer from the Bridgeport police department, saw a maroon Acura that matched the description of an automobile on the police list of stolen vehicles.7 As the motor vehicle pulled into a parking space, Fitzgerald's partner drove the patrol vehicle behind the maroon Acura to prevent it from moving. The four occupants of the maroon Acura got out of the automobile and began to run away. Fitzgerald observed that the front passenger appeared to have an object in his waistband resembling the shape of a gun and ordered the man to stand still and to show his hands. The front passenger was later identified as the defendant.

The defendant ran away from Fitzgerald, pulled a black handgun out of his waistband and threw the weapon onto the ground. Witnessing the defendant dispose of the weapon, Fitzgerald picked up the handgun and, after a short chase, apprehended the defendant. The handgun was loaded with four rounds. Fitzgerald identified the man as the defendant and arrested him. The defendant was charged in two informations. In the first case, he was charged for the events that transpired when he was apprehended on October 23, 1998, and, in the second case, for the events that transpired on October 21, 1998, when the grocery store was robbed.

The defendant and the codefendant Garcia were tried jointly before a jury regarding the charges of robbery and conspiracy to commit robbery.8 On November 19, 1999, the defendant was found guilty of all charges and convicted of two counts of robbery in the first degree in violation of § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of § 53a-48, criminal possession of a pistol or revolver in violation of § 53a-217c, carrying a pistol or revolver without a permit in violation of § 29-35 (a) and possession of a weapon in a motor vehicle in violation of § 29-38. The codefendant Garcia, however, was acquitted of all charges, including the charge of conspiracy to commit robbery. This appeal followed. Additional facts will be discussed where relevant to the claims raised.

I

During the pendency of this appeal, we ordered the parties to submit supplemental briefs to address whether this court should review under the plain error doctrine9 the issue of whether, in a joint trial, the conviction of one codefendant of the charge of conspiracy to commit robbery can stand when the other codefendant is acquitted of the charge. In his supplemental brief, the defendant contends that his conviction for conspiracy to commit robbery constitutes plain error and a legal impossibility when his codefendant in the joint trial was acquitted of the charge. We agree and conclude that the trial court committed plain error and, therefore, reverse the judgment of conviction of conspiracy to commit robbery in the first degree.

It is well established that this court will exercise plain error review under only the rarest of circumstances. "Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Internal quotation marks omitted.) State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988). This court may "in the interests of justice notice plain error not brought to the attention of the trial court." (Internal quotation marks omitted.) State v. Thornton, 55 Conn. App. 28, 31, 739 A.2d 271 (1999). "As explained in detail in Lynch v. Granby Holdings, Inc., [230 Conn. 95, 98, 644 A.2d 325 (1994)], our sua sponte invocation of plain error review is warranted when the following requirements are satisfied: (1) we discuss the rule and articulate why it is appropriate; and (2) we give the parties an opportunity to brief the issue." State v. Washington, 39 Conn. App. 175, 179, 664 A.2d 1153 (1995).

"To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.... This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.... State v. Caprilozzi, 45 Conn. App. 455, 462, 696 A.2d 380, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997)." (Internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 546, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000). Here, the defendant was convicted of conspiracy to commit robbery, although his codefendant in this joint trial was acquitted of the same charge. We conclude that the defendant's conviction constitutes a legal impossibility and that to permit his conviction to stand would not only be manifestly unjust but also would undermine the public's confidence in these judicial proceedings. Accordingly, we will review this claim under the plain error doctrine.

When one alleged conspirator is convicted of conspiracy and his alleged coconspirator is acquitted, the situation is similar to that where a jury has rendered an inconsistent verdict. Just as we will overturn a legally inconsistent verdict when "the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted"; State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993); so, too, will we overturn a conspiracy conviction that is...

To continue reading

Request your trial
16 cases
  • State v. Thompson
    • United States
    • Connecticut Court of Appeals
    • January 27, 2004
    ...See State v. Hair, 68 Conn. App. 695, 701-703, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002); State v. Abraham, 64 Conn. App. 384, 397-400, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001); State v. Taylor, supra, 52 Conn. App. 794-96; State v. Davis, supra, ......
  • State v. Dawson
    • United States
    • Connecticut Court of Appeals
    • March 19, 2019
    ...cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Abraham , 64 Conn. App. 384, 400, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001)."It is within the province of the jury to draw reasonable and logical......
  • Gamble v. Comm'r of Corr.
    • United States
    • Connecticut Court of Appeals
    • January 23, 2018
    ...cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Abraham , 64 Conn. App. 384, 400, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001)."A person, acting with the mental state required for commission of an......
  • State v. Torres
    • United States
    • Connecticut Court of Appeals
    • May 11, 2004
    ...omitted.) State v. Wilson, 71 Conn. App. 110, 119, 800 A.2d 653, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002); State v. Abraham, 64 Conn. App. 384, 407, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001); see also State v. Watson, 251 Conn. 220, 228 n.9, 740 A.2d 832 (1999)......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT