State v. Leandry

• Decision Date: 17 November 2015
• Docket Number: No. 36741.,36741.
• Citation: 161 Conn.App. 379,127 A.3d 1115
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert LEANDRY.

161 Conn.App. 379

127 A.3d 1115

STATE of Connecticut

v.Robert LEANDRY.

No. 36741.

Appellate Court of Connecticut.

Argued Sept. 8, 2015.

Decided Nov. 17, 2015.

Kirstin B. Coffin, assigned counsel, for the appellant (defendant).

Matthew R. Kalthoff, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and John F. Fahey, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and LAVINE and KELLER, Js.

DiPENTIMA, C.J.

The defendant, Robert Leandry, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a–134 (a)(3) and assault in the second degree in violation of General Statutes § 53a–60 (a)(2). On appeal, the defendant claims that (1) the evidence was insufficient to support the judgment of conviction for both counts, (2) the trial court improperly charged the jury on robbery in the first degree, and (3) the court abused its discretion in certain evidentiary rulings. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts that are relevant to this appeal. In September, 2012, Patrick Jalbert was employed by an independent security company, which provided security services to Save–A–Lot, a grocery store in Hartford. After Jalbert observed the defendant behaving oddly in the grocery store, he went to the management office to view the store's surveillance monitors. Jalbert then observed the defendant walk to the freezer aisle section of the store, select bags of frozen shrimp, and pack the bags into his pants. Having confirmed that the defendant bypassed the cashiers and exited the store with the merchandise, Jalbert immediately left to intercept the defendant.

Once outside, Jalbert confronted the defendant. After Jalbert told him to stop, the defendant removed one bag of frozen shrimp from his pants, placed it on top of nearby shopping carts, and started to walk away. Knowing that more merchandise was hidden inside the defendant's pants, Jalbert grabbed the defendant's arm to prevent him from leaving. When Jalbert attempted to handcuff him, the defendant resisted and stated: "I have a needle."¹ After this statement, while trying to separate himself from the defendant, Jalbert felt something stab him in his left forearm. Although Jalbert did not see the hypodermic syringe at that moment, he saw a blood mark on his arm.

The defendant then ran into the plaza parking lot. As Jalbert pursued him, he was able to see a hypodermic syringe in the defendant's right hand. During the defendant's attempt to flee, an employee from the adjacent furniture store joined in the pursuit. When both men approached him, the defendant stated that he was infected with AIDS, hepatitis, or "something to that effect." The employee from the furniture store was first to reach the defendant, which prompted Jalbert to warn him that the defendant had a hypodermic syringe. After a brief struggle, both men managed to subdue the defendant, and Jalbert handcuffed him.

Within minutes, officers from the Hartford Police Department arrived on the scene. Officer Kenneth Labbe spoke with Jalbert, who explained what had occurred with the defendant, including having been stabbed with a hypodermic syringe. Labbe noticed a mark on Jalbert's forearm that was consistent with being stabbed with a hypodermic syringe. While Labbe was speaking with Jalbert, the defendant was "spontaneously uttering ... [that] he did not have HIV and that he only had hepatitis." Jalbert was transported to Saint Francis Hospital and Medical Center in Hartford via ambulance, where he was treated for superficial scratches, what appeared to be puncture wounds, and exposure to a blood-borne pathogen.

The defendant was charged with robbery in the first degree and assault in the second degree. The jury found the defendant guilty on both counts. The court sentenced him to a total effective term of eight years of incarceration and five years special parole. This appeal followed. Additional facts will be set forth as necessary.

ISUFFICIENCY OF EVIDENCE CLAIMS

The defendant first claims that there was insufficient evidence to support his conviction on both counts. Specifically, he argues that the evidence presented by the state does not support a conviction of robbery in the first degree because it fails to show that he either used or threatened to use a dangerous instrument. In addition, the defendant argues that the evidence does not establish that he was guilty beyond a reasonable doubt of assault in the second degree because the evidence fails to show that he intended to or caused physical injury to Jalbert.

We first begin by setting forth the law relevant to an insufficiency of the evidence claim. As a preliminary matter, "[a] defendant who asserts an insufficiency of the evidence claim bears an arduous burden." State v. Hopkins, 62 Conn.App. 665, 669–70, 772 A.2d 657 (2001). This court "[i]n reviewing [a] sufficiency [of evidence] claim ... [applies] 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.... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence....

"While ... every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.... We ask ... whether there is a reasonable view of the evidence that supports the jury's verdict of guilty....

"Furthermore, we are mindful that [w]e do not sit as a [seventh] 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.... The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Citation omitted; internal quotation marks omitted.) State v. Torres, 82 Conn.App. 823, 825–27, 847 A.2d 1022, cert. denied, 270 Conn. 909, 853 A.2d 525 (2004).

With these principles in mind, and construing the evidence in the light most favorable to sustaining the verdict, we determine that the jury reasonably could have concluded that the cumulative force of the evidence established the defendant's guilt beyond a reasonable doubt as to each count.

ACount One—Robbery in the First Degree

The defendant first argues that there was insufficient evidence to support his conviction of robbery in the first degree in violation of § 53a–134 (a)(3).² Specifically, the defendant argues that the evidence did not sufficiently establish that he used a hypodermic syringe to stab Jalbert and that, under the circumstances, the hypodermic syringe was not a dangerous instrument.³ We disagree.

The following additional facts are relevant to the defendant's claim that there was insufficient evidence to prove that he used a hypodermic syringe to injure Jalbert. While at Saint Francis Hospital and Medical Center, Karen Bigge, a physician assistant, treated Jalbert. She testified to seeing "some superficial scratches and what appeared to be some puncture wounds" to Jalbert's left arm, which were consistent with having been stabbed with a hypodermic syringe. Jalbert's medical records were admitted into evidence and corroborated Bigge's testimony.

In addition to Bigge's testimony, the court admitted into evidence two video exhibits without objection from the defendant. The first video exhibit showed footage from the Save–A–Lot surveillance system. As the jury viewed the video, Jalbert testified to the events taking place. The video showed the defendant exiting the store with Jalbert in pursuit. The jury could see that once outside the store, Jalbert attempted to apprehend the defendant. Jalbert identified for the jury the moment when he was stabbed with the hypodermic syringe.

As to the second video exhibit, Jalbert testified that the property management company, which owned the plaza where Save–A–Lot was located, operated its own security cameras. These cameras covered a sector of the parking lot that the Save–A–Lot cameras did not. Sometime after the incident, the plaza's property management company allowed Jalbert to view its surveillance monitors, and Jalbert testified to using his cell phone to film the footage displayed on the computer screen. This video showed the defendant running through the parking lot, the furniture store employee and Jalbert chasing and apprehending the defendant, and the Hartford police officers arriving on the scene. The jury also could see Jalbert pointing to his left forearm on multiple occasions while speaking with the police officers.

The evidence before the jury indicating that the defendant used a hypodermic syringe to stab Jalbert consisted of not only testimony from Jalbert, but also testimony from Bigge and Labbe, as well as two video exhibits and Jalbert's...