State v. Lopez

Decision Date24 January 2006
Docket NumberNo. 26216.,No. 26126.,26126.,26216.
Citation93 Conn.App. 257,889 A.2d 254
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Albert LOPEZ. State of Connecticut v. Clifton E. Kennedy.

Lisa J. Steele, special public defender, for the appellant (defendant in the first case).

Mary Anne Royle, special public defender, for the appellant (defendant in the second case).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Margaret E. Kelley, senior assistant state's attorney, for the appellee (state).

LAVERY, C.J., and DRANGINIS and STOUGHTON, Js.

DRANGINIS, J.

These appeals concern claims raised by the defendants, Clifton E. Kennedy and Albert Lopez, who were codefendants at trial. The jury found each defendant guilty of robbery in the first degree in violation of General Statutes § 53a-134(a)(2), unlawful restraint in the second degree in violation of General Statutes § 53a-96(a), and larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b(a). On appeal, Kennedy claims that (1) there was insufficient evidence to support his conviction of robbery in the first degree and (2) the trial court improperly denied his motion for a mistrial. Lopez claims that (1) there was insufficient evidence to support his conviction of robbery in the first degree and unlawful restraint in the second degree, (2) his conviction of robbery in the first degree and unlawful restraint in the second degree violate the constitutional prohibition against double jeopardy and (3) the court improperly denied his motion for mistrial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. At approximately 10 p.m. on December 9, 2003, the victim, Cecile Lawrence, a University of Bridgeport security officer, was walking to her place of employment via Park Avenue. The weather was cold, and the victim wore a winter coat over her uniform. As she crossed Atlantic Street, she heard someone approaching from behind. She turned and saw two men, whom she subsequently identified as Kennedy and Lopez. Kennedy ordered the victim to give him her money or he would "do [her]." The victim described Kennedy as being very upset. He repeatedly threatened her by stating, "[G]ive me your money or I'll do you right here." The victim told Kennedy that she had no money, but he persisted, stating that he knew that she had money. The victim was afraid that she would be shot. She perceived an odor of alcohol on Kennedy and Lopez and believed that both men had been drinking.

The victim was wearing a backpack. Kennedy pulled on the backpack forcing the shoulder straps to draw the victim's arms behind her. This permitted Lopez to unzip the victim's coat, rummage through her outer and inner coat pockets and the pocket of her shirt. Lopez removed the victim's keys, reading glasses and identification. Kennedy continued to threaten the victim by stating that he would "do [her]" then if she did not give them her money. Lopez informed him, however, that the victim did not have any money and told Kennedy not to "do her." Kennedy and Lopez took the victim's backpack with its contents and told the victim to walk away and not to look back. As the victim walked away, Kennedy again threatened her, stating, "Do not turn around or I'll do you."

The victim walked to the campus security office, which was about one and one-half blocks away. She met her supervisor, Jermaine Alston, who was operating a campus security vehicle, and informed him that she had been mugged. Alston told the victim to get into the vehicle, and they drove around the area looking for the perpetrators of the robbery. The victim described the perpetrators as a black man and a Hispanic man. Alston and the victim saw two men going through a backpack on Atlantic Street. The victim recognized them as the men who had robbed her. Alston stopped the vehicle and got out. Kennedy ran away. Lopez began to walk away, refusing to answer Alston's question about where he had gotten the backpack. Alston scuffled with Lopez and subdued him until the police arrived and took Lopez into custody. Kennedy was apprehended by the police a few blocks from the scene.

Most of the victim's belongings were recovered, except her cellular telephone, which was valued at approximately $200. After Kennedy and Lopez were taken into custody, the victim identified them as the men who had robbed her. She also identified them in court. Alston identified Lopez in court, as well, but he could not identify Kennedy.

Both defendants were charged with robbery in the first degree, unlawful restraint in the second degree and larceny in the sixth degree. Their cases were consolidated for trial on June 16, 2004. The jury returned verdicts of guilty on October 6, 2004. Each of the defendants received a total effective sentence of eleven years in the custody of the commissioner of correction and three years of probation. These appeals followed.

I

Kennedy and Lopez both claim that there was insufficient evidence to support the jury's respective verdicts of guilty of robbery in the first degree in violation of § 53a-134(a)(4). Lopez also claims that there was insufficient evidence to support the jury's verdict of guilty of unlawful restraint in the second degree as an accessory. We do not agree with these claims.

"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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict." (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 270, 864 A.2d 666 (2004), cert. denied, ___ U.S. ___, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). "In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the jury, and, therefore, we must afford those determinations great deference." State v. Conde, 67 Conn.App. 474, 490, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).

"[P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.. . . Furthermore, [i]n [our] 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." (Citation omitted; internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 629, 835 A.2d 895 (2003).

"While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense[s], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . [I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . [A]n inference need not be compelled by the evidence; rather the evidence need only be reasonably susceptible of such an inference." (Citation omitted; internal quotation marks omitted.) State v. Glasper, 81 Conn.App. 367, 371, 840 A.2d 48, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004).

A

Both Kennedy and Lopez claim that there was insufficient evidence to support their convictions of robbery in the first degree in violation of § 53a-134(a)(4)1 because the jury reasonably could not have concluded that Kennedy represented by his words or conduct the threatened use of a firearm. More specifically, Kennedy and Lopez argue that the jury's verdicts were based on speculation and surmise because the meaning of the words "do you" is too vague to be construed as a threat to shoot the victim, particularly when there was no evidence that either of the defendants had a firearm.2 Kennedy and Lopez contend, therefore, that the state failed to prove beyond a reasonable doubt the firearm element of the statute. We are not convinced.

The state charged, in the respective amended informations, that "at the City of Bridgeport . . . on or about the 9th day of December, 2003, at approximately 10:35 p.m., at 296 Park Avenue within said City, the said [defendant] stole certain property from one CECILE LAWRENCE, and in the course of the commission of the crime he threatened the use of what he represented by his words or conduct to be a firearm, to wit: a handgun, in violation of Section 53a-134(a)(4) of the Connecticut General Statutes."

"Pursuant to § 53a-134(a)(4), a person is guilty of robbery in the first degree when, in the commission of the crime of robbery, that person displays or threatens the use of what he represents by his words or actions to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. This portion of the statute is satisfied when the state has proven beyond a reasonable doubt that the defendant represented by his words or...

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  • State v. Quint
    • United States
    • Connecticut Court of Appeals
    • August 15, 2006
    ...and bill of particulars as opposed to the evidence presented at trial." (Internal quotation marks omitted.) State v. Lopez, 93 Conn.App. 257, 272, 889 A.2d 254, cert. granted on other grounds, 277 Conn. 919, 895 A.2d 791 As the Blockburger test is only a rule of statutory construction and "......
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    ...robbed a bank by passing a note to a bank employee that read, "Give cash. I have gun." Id. at 789. In State v. Lopez , 93 Conn.App. 257, 889 A.2d 254 (Conn. App. Ct. 2006), the defendant was found to have verbally threatened the robbery victim that he would use a firearm. Id. at 259–60. Bor......
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