State v. Edwards

• Decision Date: 17 April 2007
• Docket Number: No. 27113.,27113.
• Citation: 918 A.2d 1008,100 Conn.App. 565
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Mark A. EDWARDS.

918 A.2d 1008

100 Conn.App. 565

STATE of Connecticut v. Mark A. EDWARDS.

No. 27113.

Appellate Court of Connecticut.

Argued October 18, 2006.

Decided April 17, 2007.

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

Denise B. Smoker, senior assistant state's attorney, with whom were Jonathan C. Benedict, state's attorney, and, on the brief, C. Robert Satti, Jr., senior assistant state's attorney, for the appellee (state).

BISHOP, GRUENDEL and DUPONT, Js.

GRUENDEL, J.

The defendant, Mark A. Edwards, appeals from the judgments of conviction, rendered after a jury trial of four consolidated cases, of two counts of murder in violation of General Statutes § 53a-54a (a), two counts of felony murder in violation of General Statutes § 53a-54c, one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8), two counts of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a)(2), two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a)(2), two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a)(4), two counts of robbery of an occupied motor vehicle in violation of General Statutes § 53a-136a, three counts of larceny in the second degree in violation of General Statutes § 53a-123 (a)(1), and two counts of carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant's nine enumerated claims constitute allegations that (1) the state produced insufficient evidence (a) to establish his identification and (b) to prove that the guns were operable, (2) the court violated his constitutional right to due process by precluding him from (a) representing himself and (b) testifying in his defense, (3) he improperly was charged with and convicted of felony murder because the information did not allege that he had committed the underlying felony of attempt to commit robbery, (4) the court violated his constitutional guarantee against double jeopardy, and (5) he was convicted improperly under § 53a-136a because it is merely a sentence enhancing statute. We affirm in part and reverse in part the judgments of the trial court.

The jury reasonably could have found the following facts. On December 3, 2000, at around 1 a.m., the defendant robbed Mark Komani, who had driven to an address in Ansonia to deliver pizza. When Komani arrived, the defendant, waiting on the sidewalk, requested the pizza and began taking out some money. When Komani began to take the pizza out of the insulated bag, the defendant put a gun to his head and said, "Don't move." He demanded money and Komani gave him about $30. After demanding that Komani exit the vehicle and remove the pizza delivery sign from the top, the defendant drove off in the vehicle. About two weeks later, the Ansonia police department found the car parked behind the house where the defendant's grandmother lived.

During the early morning hours of December 4, 2000, Sigmund Kamenski drove a white Buick to a Dunkin' Donuts in Ansonia, where he entered the store to buy a cup of coffee. After Kamenski returned to his vehicle and put the keys in the ignition, the defendant partially opened the driver's side door, pointed a gun at him and demanded money. Kamenski left the car and gave him the $35 to $40 that he had with him, and the defendant entered the car and drove away.

Shortly before 6 p.m. on December 10, 2000, the defendant entered the Wood Plus Deli in Bridgeport. Velvet Harris, a regular customer at the deli, was inside, and two employees, Abo Kali Jwaid and Abdul Nasser Hinoun, were behind the counter. The defendant, at the counter, asked Harris if he was "straight," i.e. finished with his business, and told him to wait outside. After Harris left the deli, the defendant pulled a gun from his waistband and demanded money from the two employees. When they resisted, the defendant shot them. He ran out of the door, passed by Harris and got into the passenger seat of Kamenski's white Buick, which sped away. Jwaid and Hinoun died within minutes of the shooting.

On December 15, 2000, the defendant was driving the Buick in Bridgeport with a friend. Officer Heriberto Rodriguez of the Bridgeport police department saw the Buick and, seeing that the defendant was not wearing his seat belt, checked the license plate number in his computer. After learning that the car had been stolen, Rodriguez broadcast a description of the Buick to other police officers and initiated pursuit. Soon after, with lights and sirens activated, three police vehicles were following the Buick, which ultimately stopped on a gravel embankment leading to railroad tracks. The defendant and his friend exited the vehicle and ran in different directions. A few minutes later, the defendant was apprehended by the police officers, and a gun was found within his flight path. The gun was tested at the state police laboratory and found to be the same one as that used to kill the two deli employees. In addition, the defendant's fingerprints were found in the Buick and on the glass freezer cover of the Wood Plus Deli.

The defendant was charged in four separate informations that corresponded to the four incidents. Prior to trial, the state moved to consolidate the cases and the defendant did not oppose the motion, which the court granted. Following a jury trial, the defendant was found guilty of two counts of murder, two counts of felony murder, one count of capital felony, two counts of attempt to commit robbery in the first degree, four counts of robbery in the first degree, two counts of robbery of an occupied motor vehicle, three counts of larceny in the second degree and two counts of carrying a pistol or revolver without a permit. In each of the first two cases, those involving Komani and Kamenski, the trial court merged the conviction on a second count of robbery in the first degree with the conviction on the first robbery count. In the case involving the murders of Jwaid and Hinoun, the trial court merged the murder convictions as to each victim with the felony murder convictions. The court also merged the convictions on the underlying felonies of attempt to commit robbery in the first degree with the felony murder convictions. The defendant was sentenced to life imprisonment without release plus forty-six years. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the evidence was insufficient to establish his identification as to the four crimes involving Kamenski, and to prove that the gun used in the crimes involving Komani and Kamenski was operable.¹ We disagree and address both of these claims in turn.²

We begin by setting forth the well established standard of review for a sufficiency of the evidence claim. In so doing, we 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"The evidence must be construed in a light most favorable to sustaining the jury's verdict.... Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.... [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence.... established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt....

"We do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.... We are content to rely on the [jury's] good sense and judgment." (Internal quotation marks omitted.) State v. Serrano, 91 Conn.App. 227, 241-42, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005).

A

The defendant claims that the evidence was insufficient to establish his identity as the perpetrator of the four crimes related to Kamenski. Specifically, he claims that the evidence was insufficient because Kamenski could not positively identify him as his attacker, and the remaining evidence was merely circumstantial. We are not persuaded.

Before the defendant could be found guilty of robbery, larceny and robbery of an occupied vehicle, the state was required to prove the element of identification beyond a reasonable doubt. See State v. Smith, 280 Conn. 285, 302, 907 A.2d 73 (2006) ("[i]t is black letter law that in any criminal prosecution, the state bears the burden of proving beyond a reasonable doubt the defendant's identity as one of the perpetrators of the crime charged"). The defendant argues that "[t]here was no evidence that Kamenski ever identified [the] defendant as the robber to [the] police, and an in-court identification was never attempted. At trial, Kamenski testified [that] he did not get a good look at the perpetrator...." Nevertheless, although at trial he initially was unable to remember specifically the perpetrator's clothing during the incident that occurred almost three years earlier, after reading his statement to the police given at that time, Kamenski recollected that the perpetrator had been wearing a gray sweatshirt, which corresponded with what the defendant was wearing when he was apprehended. He also had described accurately the defendant's height, weight, skin color and...