State v. Apodaca

• Decision Date: 10 January 2012
• Docket Number: No. 18170.,18170.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Herman Vasquez APODACA.

303 Conn. 378

33 A.3d 224

STATE of Connecticut

v.Herman Vasquez APODACA.

No. 18170.

Supreme Court of Connecticut.

Argued Oct. 20, 2011.Decided Jan. 10, 2012.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, was Scott J. Murphy, state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, McLACHLAN, HARPER and VERTEFEUILLE, Js.

HARPER, J.

Following a jury trial, the defendant, Herman Vasquez Apodaca, was convicted of felony murder in violation of General Statutes § 53a–54c, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53a–134, and two counts of robbery in the first degree in violation of § 53a–134 (a)(1) and (3). The defendant appealed directly to this court, pursuant to General Statutes § 51–199(b)(3), raising four claims. The defendant first claims that the trial court improperly dismissed a juror midtrial without adequate cause because its conclusion that it could not reconsider its decision to excuse the juror was incorrect as a matter of fact and law. The defendant also claims that his felony murder conviction must be reversed because the trial court's instructions permitted the jury to find him vicariously liable for the underlying felony (robbery in the first degree) and in turn improperly permitted the jury to find the defendant guilty of felony murder when he did not actually commit the underlying felony. Finally, the defendant contends, with respect to the trial court's instructions on the conspiracy charge, that the court improperly failed to address the jury's request to restate the instruction in laypersons' terms and that the instruction was otherwise misleading as to which crime formed the basis of the conspiracy. We disagree with each of these claims and, accordingly, affirm the judgment.

The jury reasonably could have found the following facts. In August, 2005, the defendant, a New York resident, met John Ortiz, a New Britain barber. The defendant asked Ortiz to let him know whether he knew anyone in Connecticut who might be interested in buying large quantities of drugs. Some time after that meeting, Ortiz contacted the defendant and relayed information that a friend, Luis Bruno, was interested in making such a purchase.

On September 22, 2005, the defendant and two of his acquaintances, Eduardo Davila and Rodney Hankerson, went to New Britain, where Ortiz introduced them to Bruno. An agreement was reached to sell Bruno four kilograms of cocaine at a price of $19,000 per kilogram, with the sale to take place two days later. The defendant, Davila and Hankerson decided to use the sale as a pretext to steal Bruno's money.

On September 24, 2005, Bruno called Davila on the defendant's cell phone to express reservations about the sale, and they ultimately agreed that Bruno could purchase two, rather than four, kilograms of cocaine. Later that same day, the defendant, Hankerson and Davila drove to New Britain, where they met Ortiz in a store parking lot. Davila and Hankerson carried guns on them as directed by the defendant; the defendant gave Davila a larger gun so “it would look more intimidating” and directed Davila to give his own smaller gun to Hankerson. Hankerson brought with him a duffle bag containing rolls of duct tape and bricks of fake cocaine made out of sheetrock. The defendant, driving one vehicle, with Hankerson as his passenger, and Davila, driving a second vehicle, followed Ortiz' car to Bruno's apartment in New Britain. Davila went to Bruno's apartment and entered through the rear door. Davila saw stacks of money piled on the kitchen table and drew his gun on Bruno. Davila then relayed a message to the defendant's cell phone indicating that everything was under control. The defendant entered the apartment, along with Hankerson who was carrying the bag containing the duct tape and fake cocaine. A fight ensued between Hankerson, Davila and Bruno. The defendant filled a grocery bag with the cash that was piled on the kitchen table and returned with it to his car, leaving Hankerson and Davila to deal with Bruno. During the struggle with Bruno, in which Hankerson and Davila tried to bind his mouth, arms and legs with the duct tape, Bruno was beaten and fatally stabbed.

Hankerson and Davila fled the apartment and drove to a rest stop, where they met the defendant. The two men had blood on their clothes, and the defendant directed them to get back into their vehicle and to follow him. The defendant led them back to his girlfriend's apartment in New York, where he gave them a change of clothes. The three men split the money taken from Bruno's apartment.

Thereafter, the defendant was arrested and charged with felony murder, two counts of robbery in the first degree and one count of conspiracy to commit robbery in the first degree. At trial, the defendant did not dispute that he had been involved in a scheme to sell Bruno drugs, but disclaimed any knowledge of the robbery or murder.

On the fifth day of evidence, a juror, A. S., called in sick, and the court thereafter excused her, over the defendant's objection, and replaced her with an alternate. At the close of evidence, the trial court instructed the jury that the defendant could be found guilty on the two counts of robbery in the first degree as either a principal, an accessory, or, alternatively, under a theory of vicarious liability. The court further instructed the jury that the defendant could be found guilty of felony murder if it found that he, alone or acting with others, had committed a robbery and, in the course of or in furtherance of that crime or flight therefrom, he or another participant had caused Bruno's death.

The jury returned a verdict of guilty on all four counts. The trial court rendered judgment in accordance with the verdict and imposed a total effective sentence of sixty years imprisonment. This direct appeal followed.

I

We begin with the defendant's claim that the trial court improperly excused A.S. without the requisite finding of adequate cause. Specifically, the defendant contends that the trial court improperly determined that it could not reconsider its decision to excuse A.S., even though the initial reason for the excusal, illness, no longer existed. He further contends that such an impropriety entitles him to a new trial because it is structural in nature and not amenable to harmless error review. We conclude that the trial court's decision was proper and, therefore, we need not consider the defendant's claim of structural error.

The record reveals the following additional undisputed facts. On the fifth day of evidence in the state's case-in-chief, at 10:25 a.m., the court informed the parties that A.S. had called in to the caseflow coordinator to report that she was ill with some type of flu bug that was causing vomiting. The court asked the parties for their opinions as to whether A.S. should be dismissed. Defense counsel objected, arguing that the defendant felt strongly about keeping this particular juror on the jury. Defense counsel requested that the court wait at least one day to allow A.S. to recover from her illness and, due to the limited availability of the state's witness set to testify that day, videotape the testimony of that witness to play to the jury upon A.S.'s return. The state disagreed, offering several reasons why A.S. should be excused. The trial court announced that it would defer its decision until 11:30 a.m.

When court reconvened, the trial court informed the parties that it had asked the caseflow coordinator to call A.S. during the recess to determine when she first had gotten sick, the status of her condition, and how she thought she might feel in a few hours, as well as the next day. The caseflow coordinator then reported the content of her telephone conversation to the court. A.S. indicated that she had begun to feel ill the previous afternoon, had gotten physically ill that evening and still was vomiting on the morning she called in. A.S. was not sure whether she would feel well enough by that afternoon or the next day to resume jury duty. In response to this report, the parties reiterated their previous positions as to whether A.S. should be excused.

In light of the defendant's objection, the trial court weighed the alternatives that the defendant had advanced. The court first rejected the option of videotaping the state's witness, reasoning that the limited authority for such a procedure did not extend to the present circumstances. The court then considered the options of delaying the trial until the following day or, alternatively, until 2 p.m. that afternoon, by which time the caseflow coordinator could obtain an update from A.S. on her condition. The court ultimately rejected those options, reasoning that A.S. presently was ill, that the court was not optimistic that she would be well enough by 2 p.m. to resume her duties and that, even if she did return, A.S. might spread her illness to other jurors due to the close proximity that they shared. The court further reasoned that a delay could result in the loss of other jurors because the trial already had exceeded the estimated time frame that had been given to the jury and protracted testimony still lay ahead. Accordingly, the court ruled that it was excusing A.S. for the aforementioned reasons and that an alternate juror would be selected by lot.

After other court business had been conducted and a brief recess had been called, the court put on the record that the caseflow coordinator had spoken with A.S., who had indicated that she felt better and could be in court by 2 p.m. Because the alternate juror had not yet been sworn in, the court announced that it would stay its previous order until 2 p.m. to ascertain whether A.S. could resume her duties. At that time, in response to the court's inquiries, A.S. reported that she...