State v. Edwin D. Vega.

• Decision Date: 19 April 2011
• Docket Number: No. 31518.,31518.
• Citation: 128 Conn.App. 20,17 A.3d 1060
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticutv.Edwin D. VEGA.

128 Conn.App. 20

17 A.3d 1060

STATE of Connecticut

v.Edwin D. VEGA.

No. 31518.

Appellate Court of Connecticut.

Argued Feb. 10, 2011.Decided April 19, 2011.

Cameron R. Dorman, special public defender, for the appellant (defendant).John A. East III, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).LAVINE, BEACH and PELLEGRINO, Js.LAVINE, J.

The defendant, Edwin D. Vega, appeals from the judgment of conviction, rendered following a jury trial, of one count each of robbery in the first degree in violation of General Statutes § 53a–134 (a)(2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–134 (a)(2) and 53a–48, and assault in the first degree in violation of General Statutes § 53a–59 (a)(5). On appeal, the defendant claims that (1) the evidence was insufficient to prove, beyond a reasonable doubt, that he was the individual who committed the offenses, (2) the court abused its discretion when it permitted a police officer to offer his expert opinion concerning the defendant's cellular telephone and (3) the court erroneously instructed the jury regarding consciousness of guilt. The judgment is affirmed.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the autumn of 2007, Daryl Wells was enrolled as a freshman at Trinity College in Hartford. Immediately upon enrolling at Trinity College, Wells met a woman named Elysha Padilla, and the two became close friends. On April 26, 2008, Wells and Padilla had a “romantic encounter” while in Padilla's dormitory room. After this encounter, Wells attempted to contact Padilla several times, but she ended all communication with him.

On May 5, 2008, Wells was in his dormitory room when an unknown woman (woman), whom he had never seen before, came to his door and gave him a letter that she claimed was from Padilla. The letter indicated that Padilla was distressed, prompting Wells to decide that he needed to go see her. The woman told Wells that Padilla was staying in her apartment and offered to take him there. Wells, however, elected to follow the woman in his own car. The two went outside, and the woman entered a charcoal colored Toyota Camry that was being driven by an unknown male. Wells followed the Camry to the Trinity Apartment Complex (apartment complex) on Sherbrooke Avenue, which was about one and one-half miles away from the Trinity College campus.

At approximately 9:40 p.m., Wells exited his car and followed the woman along the side of the apartment building. The woman told Wells that she forgot her key and would have to get it from her boyfriend. Wells followed the woman back to the parking lot and, as they were walking, Wells noticed two men coming toward them, one of whom was the defendant. As the defendant and his companion approached Wells, the woman kept walking past them. Wells greeted the two men, but they did not respond. The defendant then pulled a gun from under his shirt and told Wells to get on his knees, which he did. The second man then circled around Wells.

Wells pleaded with the two men to leave him alone and stated that there must be a misunderstanding and that he did not have any money. The two men did not respond to Wells' comments and suddenly began attacking him. Wells fell on his back, covered his head to protect himself and began yelling for help. Despite his pleas for them to stop, the defendant and his companion continued attacking Wells. The defendant pistol-whipped Wells in the head several times and, at one point, Wells heard a loud bang and then felt blood gushing from his forehead. When the two men were done attacking Wells, the defendant reached into Wells' back pant's pocket and took his wallet.

Some residents of the apartment complex came to Wells' assistance, and the police and paramedics who arrived were alerted to Wells' condition. Wells was taken to Hartford Hospital where he was told that a bullet had grazed his temple and that he had a broken finger and bruises all over his body.

Detective Andrew Jacobson conducted the police investigation of the attack on Wells. Jacobson learned that the woman lured Wells to the apartment complex with a note allegedly from Padilla. Jacobson then obtained Padilla's telephone and text message records, which revealed substantial communication between her and the defendant. Specifically, Jacobson noticed many telephone calls between Padilla and the defendant on May 5, 2008, the day of the attack, and that Padilla had received four text messages from the defendant and sent one to him at about the time of the attack. Jacobson also learned that the defendant drove a dark colored Toyota Camry.

On the basis of this information, Jacobson created an array of photographs that included a photograph of the defendant. Jacobson presented the array to Wells, and Wells identified the defendant as one of the individuals who attacked him, and, specifically, the individual who fired the gun at him. The police then arrested the defendant, who voluntarily surrendered his cellular telephone. The defendant also waived his Miranda rights,¹ admitted to knowing Padilla and told the police that the two had become romantically involved in July, 2008. On May 18, 2009, the defendant was charged with robbery in the first degree, conspiracy to commit robbery in the first degree and assault in the first degree. The defendant pleaded not guilty to the charges and elected to be tried by a jury.

At trial, Wells positively identified the defendant as the man who had pistol-whipped and shot him. The prosecution also presented testimony from several witnesses concerning the operation of the cellular telephones possessed by the defendant and Padilla. Dan Jensen, a Sprint/Nextel records custodian, testified that on the night and at the approximate time of the attack, the defendant's telephone was used to place and receive calls and text messages from Padilla's telephone and that the cell site that received the transmissions made at the time of the attack was located at 2731 South Main Street in West Hartford. State inspector Stephen Kumnick testified that the cell tower accessed by the defendant's telephone at the time of the attack was only 1.02 miles from the apartment complex. Finally, New Britain police Sergeant Christopher Chute testified concerning the results of his forensic analysis of the defendant's telephone. Chute testified that the defendant's telephone contained text messages dated from September to October, 2007, and two messages from January, 2008. He noted, however, that there were no text messages found on the telephone that were dated between January and June, 2008. Chute also testified, over the defendant's objection, that there were only two reasons why there would not be text messages dated between January and July, 2008, on the defendant's telephone. One reason was that they deliberately were deleted; the other reason was that no messages were received or sent. When asked on cross-examination whether text messages can be deleted because too many were sent or received by the telephone, Chute responded that he was not aware that that could happen but that “[a]nything is possible....”

The defendant was convicted on all charges and sentenced to an effective term of fourteen years incarceration, execution suspended after seven years, and three years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to prove beyond a reasonable doubt that he was the individual who committed the offenses. Specifically, the defendant claims that he could not be identified as the individual who committed the offenses because there was considerable discrepancy between Wells' descriptions of the individual who pistol-whipped him and the defendant's actual height. The defendant also argues that he could not be identified because Wells did not have a clear view of his assailants' faces at the time of the attack. We disagree.

The following additional facts are relevant to the defendant's claim. When the police arrived at the apartment complex after the attack, Wells told Hartford police Officer Jonathan Youens that he was attacked by two Hispanic males, each between five feet, seven inches and five feet, nine inches tall. Also, after investigating Wells' claims, Jacobson prepared an initial report concerning the attack and listed the two assailants as five feet, eight inches. Jacobson later learned that the defendant's height is five feet, two inches.

Concerning Wells' ability to identify the faces of his attackers, Wells testified that it was dark when the attack occurred and that he could not see either of his assailants' faces clearly but that he saw most of the face of the individual with the gun from the eyes downward. As noted, however, Wells positively identified the defendant at trial as the individual who pistol-whipped him and, at trial, described his height as five feet, five inches to five feet, seven inches.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... On...