State v. Kerr

• Decision Date: 06 May 2008
• Docket Number: No. 26818.,26818.
• Citation: 945 A.2d 1004,107 Conn.App. 413
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jordi KERR.

945 A.2d 1004

107 Conn.App. 413

STATE of Connecticut v. Jordi KERR.

No. 26818.

Appellate Court of Connecticut.

Argued September 25, 2007.

Decided May 6, 2008.

Laljeebhai R. Patel, special public defender, with whom, on the brief, was Jane E. Carroll, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, former state's attorney, and Thomas R. Garcia, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and HARPER and McDONALD, Js.

McDONALD, J.

The defendant, Jordi Kerr, appeals from the judgments of conviction, rendered after a jury trial, of three counts of robbery in the first degree as an accessory in violation of General Statutes §§ 53a-134(a)(4) and 53a-8(a), and two counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134(a)(4) and 53a-48(a). The defendant was charged in two separate, long form informations. One charged the defendant in two counts relating to a robbery that occurred at a Kentucky Fried Chicken fast food restaurant (KFC) in West Hartford on or about September 15, 2003. The other charged the defendant in three counts relating to robberies that occurred at a CVS pharmacy (CVS) in Hartford on or about October 1, 2003. On the state's motion, the court consolidated the defendant's cases with the cases against Jamal Bazemore and Ronnie Smith for both robberies. Subsequently, the cases were tried to the jury, and the defendant was found guilty on all charges on April 5, 2005. On appeal, the defendant claims that (1) the state produced insufficient evidence for the jury to find him guilty of all charges and that the trial court thus was obligated to render judgments of acquittal, and (2) the court improperly instructed the jury on conspiratorial liability. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On September 15, 2003, the defendant and three other men Smith, Bazemore and Negus Jones were in a black 1998 Nissan Maxima that was stolen by Bazemore on September 14, 2003, to use in a robbery and later to abandon. The four men decided to commit a robbery at a KFC on New Britain Avenue in West Hartford. Upon arriving at the KFC during business hours, shortly after 11 p.m., the men agreed that Bazemore, the driver, would remain in the car while Smith, Jones and the defendant would enter the restaurant. The three men, who were wearing hooded sweatshirts, face coverings and gloves, entered the restaurant carrying handguns. Smith wore a white "Jason mask."¹ There were no customers in the KFC at the time. After the men entered the restaurant, Smith approached the assistant manager, Vivette Wright-Wilson, who had seen their black car approach near the doorway, and ordered her to empty her pockets at gunpoint. From her pockets, Wright-Wilson gave Smith her money, $22. Jones approached another assistant manager, Mark Hamilton, and, at gunpoint, compelled him to open the cash register. After Hamilton opened the register, Jones removed all of the money. As Smith and Jones collected money, the defendant kept lookout over everyone in the KFC and made sure that no one left the premises. Smith subsequently approached Hamilton and threatened to shoot him if he did not open a second cash register. After Hamilton agreed to open the second register, Smith took the money and immediately exited the restaurant with Jones and the defendant. After the robbery, Hamilton pushed a panic button to contact the West Hartford police.

Upon leaving the store, the three men got back into the stolen Maxima, which turned left onto New Britain Avenue and then took an immediate right turn onto Hollywood Avenue. At that time, Carol Kinnane was walking down Stanwood Avenue, and she observed a black Nissan Maxima without lights driving down Hollywood Avenue. After the car stopped on a side street out of Kinnane's sight, Kinnane heard doors closing and heard several people running toward her. Kinnane then saw four men, one of whom was wearing a white mask, run around the corner of Stanwood Avenue. The man in the white mask said it was a "rush," and all four got into Smith's car, a gray and red Mercury Sable, and drove away. The four men previously had parked the car on Stanwood Avenue earlier that night for use after the robbery. After the men drove away, Kinnane walked to the Maxima, which still had the motor running, to determine if anyone injured was in the car. Then, at Kinnane's request, a neighbor called the police, who immediately responded.

The four men took Smith's car to Bazemore's house on Cornwall Street in Hartford, where they changed their clothing and equally divided the money from the robbery. Bazemore remained at his house while Smith, Jones and the defendant left in Smith's car. Approximately two hours after the KFC robbery, Paul Cicero, a Hartford police officer, observed a gray and red Mercury Sable speeding southbound on Maple Avenue. Cicero, who was aware that a similar vehicle had been used in the KFC robbery earlier that night, stopped the car after a brief chase. Before Cicero could exit his cruiser, however, Jones, the driver of the car, fled through a backyard, at which point Smith, who was in the backseat, got into the driver's seat. With his gun drawn, Cicero stopped Smith and the defendant but was unable to stop Jones. Thereafter, Smith and the defendant were detained until a West Hartford police officer arrived at the scene with KFC employees Hamilton and Rudolf Gordon. Because witnesses from the KFC could not positively identify either Smith or the defendant as the masked men that participated in the robbery, the two men were not arrested that night. Kinnane, however, identified Smith's car as the car that she had seen earlier that night on Stanwood Avenue. The police then impounded Smith's car.

Approximately two weeks later, on October 1, 2003, a 1996 dark green Nissan Maxima was stolen by Bazemore on Cornwall Street in Hartford to commit another robbery. That night, the defendant, Smith, Bazemore and Jones drove in that car to a CVS on Blue Hills Avenue in Hartford, where they all had agreed to commit an armed robbery. After arriving at the store, the defendant, whose gun had been lost, remained in the car with Bazemore while Smith and Jones entered the CVS armed with pistols at about 8 p.m. during business hours. Once inside the store, Smith and Jones covered their faces with T-shirts. Jones immediately went to the cash register where he encountered the store clerk, Nichole Smalls, who was Smith's sister. At gunpoint, Jones demanded money from the registers. While Jones collected the money from Smalls' register, Smith stopped three customers at gunpoint: Chayra Rodriguez; her sister, Jasmine Rodriguez; and Jasmine Rodriguez' eighteen month old son, Brian Harara. Smith ordered the women to give him all of their money. Jasmine Rodriguez and Chayra Rodriguez then gave Smith their money after Smith threatened to shoot Harara as he held a gun to the child's head. After taking the money, Smith and Jones left the store and got back into the Maxima to join the defendant and Bazemore. With Bazemore driving, they left the scene. The four men later abandoned the Maxima and went to Bazemore's nearby residence to divide the proceeds equally and to change clothing.

Both robberies were successfully recorded by store surveillance cameras.

After the completion of the presentation of evidence by the state, the defendant moved for judgments of acquittal on all charges. The court denied the motions. After the jury found the defendant guilty of all charges, the court sentenced the defendant to twenty years imprisonment, execution suspended after fourteen years, and four years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the evidence was insufficient as a matter of law to support his convictions of robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree. The defendant also argues that the evidence adduced at trial was insufficient to establish that he knowingly and wilfully joined in the CVS robbery with Jones, Smith and Bazemore, that he was a member of the conspiracy to rob the CVS and that he committed any of the charged crimes. We disagree.

First, we conclude that these claims are reviewable on appeal. "It is an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." (Internal quotation marks omitted.) State v. Roy, 233 Conn. 211, 212-13, 658 A.2d 566 (1995).

The following additional facts are relevant to our review of the defendant's claims. At trial, there was testimony that money was taken, at gunpoint, from cash registers at the KFC and the CVS robbery scenes. Moreover, in the KFC robbery money was taken at gunpoint from an employee, and, in the CVS robbery, money was taken at gunpoint from two of the patrons. At trial, Jones was called as a witness by the state and testified that, on or about September 15 and October 1, 2003, he, Smith, Bazemore and the defendant needed money and that all agreed to use the stolen Maximas to commit a robbery at the KFC and, later, at the CVS. Jones testified that after arriving at the KFC in the stolen Maxima driven by Bazemore on September 15, Smith concealed his face with a "Jason mask" and entered the store with a nine millimeter automatic weapon. Jones, whose face was covered and who also had a pistol, testified that he went to the cash register, demanded money from the register while pointing a gun at an employee and emptied the register. Smith first took money from Wright-Wilson at...