State v. McCarthy

• Decision Date: 18 January 2022
• Docket Number: AC 43785
• Citation: 268 A.3d 91,210 Conn.App. 1
• Parties: STATE of Connecticut v. Lamar MCCARTHY
• Court: Connecticut Court of Appeals

210 Conn.App. 1

268 A.3d 91

STATE of Connecticut

v.Lamar MCCARTHY

AC 43785

Appellate Court of Connecticut.

Argued September 15, 2021

Officially released January 18, 2022

Alice Osedach, assistant public defender, for the appellant (defendant).

Jonathan M. Sousa, deputy assistant state's attorney, with whom, on the brief, were Brian W. Preleski, state's attorney, and Christian Watson, supervisory assistant state's attorney, for the appellee (state).

Bright, C. J., and Prescott and Vertefeuille, Js.

PRESCOTT, J.

The defendant, Lamar McCarthy, appeals from the judgment of conviction, rendered following a jury trial, of one count of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 and 53a-135 (a) (1) (A), one count of larceny in the second degree in violation of General Statutes § 53a-123 (a) (1), and three counts of kidnapping in the second degree in violation of General Statutes § 53a-94. The defendant claims that (1) the trial court improperly failed to instruct the jury in accordance with State v. Salamon , 287 Conn. 509, 550, 949 A.2d 1092 (2008) ; (2) there was insufficient evidence to prove beyond a reasonable doubt that he intended to prevent the liberation of the victims beyond that which was incidental and necessary to commit the larceny and that he used or threatened to use physical force or intimidation to restrain the victims; and (3) the court violated his constitutional right to due process by denying his requests to remove his leg shackles. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On June 18, 2017, the defendant received a phone call from Norman Renaldi, who sought to purchase heroin from the defendant and asked him for a ride from Newington to Hartford. Renaldi previously had purchased heroin from the defendant on several occasions. The defendant picked up Renaldi in a red Honda minivan and told Renaldi that he owed the defendant money. Renaldi instructed the defendant to drive to the Stop & Shop at 505 North Main Street in Southington, inside of which was a People's United Bank branch (bank). During the drive and unbeknownst to the defendant, Renaldi wrote a note on the back of a coupon, which stated, "EMPTY BOTH CASH DRAWERS QUICKLY

+ QUI[E]TLY AND NO-ONE GETS HURT!!"

After the defendant and Renaldi arrived at Stop & Shop, the defendant remained in the minivan while Renaldi went inside. Renaldi approached the bank and handed the note to one of the bank tellers. He kept one of his hands in the pocket of his sweatshirt, suggesting to the teller that he had a weapon. The teller retrieved and handed to Renaldi a large quantity of cash, which Renaldi placed, along with the note, into a slit that he had cut into the lining of his sweatshirt. Renaldi then exited the Stop & Shop, got back into the minivan, and told the defendant that they could leave. He did not tell the defendant that he had robbed the bank. Meanwhile, one of the bank tellers activated an alarm, which alerted the police that a robbery had occurred at the bank.

At approximately 1:15 p.m., on duty police officers received a dispatch that a white male had entered the bank, demanded cash, implied that he possessed a weapon, and then fled the scene in a red minivan. When the dispatch was received, the defendant was driving the minivan northbound on Route 10 in Southington. Southington Police Officer Jeremey Busa, who was on patrol, observed a red minivan that matched the description from the dispatch driving on Route 10. When the minivan stopped at a red traffic light, Busa pulled behind it in his police cruiser. The defendant noticed Busa's cruiser and became nervous. The defendant attempted to maneuver the minivan around a vehicle that was stopped in front of it at the stoplight but proceeded to hit the vehicle. The defendant then executed a U-turn and accelerated southbound down Route 10, at which point Busa activated the lights and siren of his cruiser. The defendant drove at a high rate of speed, striking the curb on the side of the road, weaving in and out of traffic, crossing into incoming traffic, failing to stop at red lights, and driving across the drive-ways and lawns that abutted Route 10. Southington Police Officer Neal Ayotte, who was also on patrol, responded to the bank robbery dispatch, activated his body camera, and joined in the pursuit of the minivan in his police cruiser. As he approached the minivan on Route 10, Ayotte observed the driver operating the minivan erratically, and, at some point, Ayotte had to pull his cruiser into the front yard of a nearby residence to avoid being hit by the minivan.

Eventually, the tires on the passenger side of the minivan became flat, began to squeal, and emanated sparks and smoke. The defendant told Renaldi that the minivan belonged to his wife and that they needed to obtain another vehicle. Accordingly, the defendant stopped in front of a Shell gas station located at 212 Main Street in Southington (gas station) and parked the minivan so that it straddled the curb and the sidewalk in front of the gas station. Several police officers, including Busa and Ayotte, simultaneously arrived at the gas station. The defendant and Renaldi exited the minivan and ran toward a white Jeep Cherokee that was parked at a gas pump in front of the gas station.

The driver of the Jeep, W, had just finished pumping gas and had begun to get back into his Jeep when the defendant and Renaldi approached him. W's wife, M, was sitting in the front passenger seat of the vehicle, and their grandchildren, L and O, were sitting in booster seats in the backseat. Renaldi grabbed W and instructed him to get out of the Jeep, to which W responded that his family was inside of the vehicle. The defendant ran to the passenger side of the vehicle, climbed over M, and got into the driver's seat. Renaldi unsuccessfully attempted to enter the backseat of the Jeep through the passenger side door. Once the defendant was in the driver's seat, he promptly exited the gas station in the Jeep at a high rate of speed with M, L, and O still inside.

Police officers chased Renaldi, who had exited the parking lot of the gas station on foot and had run onto Route 10. The officers ordered Renaldi to stop running and to get on the ground. Eventually, the officers apprehended Renaldi and recovered his sweatshirt, the stolen cash, which totaled more than $12,000, and the note. Later, Renaldi identified the driver of the Jeep as the defendant.¹

While at the gas station, Busa observed that the minivan, which was still running, had sustained damage to its front bumper and quarter panel, its rear rim, and its passenger side tires. Busa recovered a wallet on the driver's seat of the minivan. The defendant's license and several other cards with his name on them were located inside of the wallet. Various documents addressed to the defendant, including a letter, a receipt, and an invoice, were also recovered from the minivan.

After exiting the gas station, the defendant drove the Jeep southbound on Route 10 at a high rate of speed. M had to hold onto the dashboard, the handle above the passenger side door, and the inside of the door while he was driving. The defendant asked M about the location of the nearest highway and whether she had a cell phone. M directed the defendant to the entrance of Interstate 84 and, although she initially lied and responded that she did not have a cell phone, eventually gave her cell phone to the defendant for fear that the phone may ring. Throughout the course of the drive, M tried to calm her grandchildren, one of whom was crying, while acknowledging that she "couldn't believe" what was happening. She also told the defendant that she "didn't know" or "care" what he had done, but she "just wanted [her grandchildren] to be safe ...." The defendant told M that he "wasn't going to hurt" her and the grandchildren.

The defendant entered Interstate 84 westbound and drove on the highway. Eventually, the defendant pulled the Jeep to the side of the highway and instructed M to quickly exit the vehicle. Although the defendant pulled over on the side of the highway near an exit, he did not exit the highway to release M, L, or O. M exited the Jeep, removed her grandchildren from their booster seats, and shut the door. The defendant immediately drove away without returning M's cell phone to her. M attempted to calm her grandchildren and, shortly thereafter, flagged down a passerby and borrowed his cell phone to call her son. The police subsequently arrived to where the defendant had left them. In total, approximately ten minutes passed between when the defendant gained control of the Jeep at the gas station and when the defendant allowed the victims to exit the vehicle.

On September 25, 2017, the defendant was arrested pursuant to a warrant. Prior to trial, the state filed a corrected substitute information dated September 12, 2019, charging the defendant with one count of robbery in the second degree in violation of § 53a-135 (a) (1) (A), one count of conspiracy to commit robbery in the second degree in violation of §§ 53a-48 and 53a-135 (a) (1) (A), one count of larceny in the second degree in violation of § 53a-123 (a) (1), and three counts of kidnapping in the second degree in violation of § 53a-94. Following a jury trial, the defendant was found not guilty of robbery in the second degree but was found guilty of all other counts.² The defendant was sentenced to a total effective term of twenty-five years of imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that he is entitled to a new trial on the kidnapping charges because the court improperly failed to provide to the jury an incidental restraint instruction in accordance with State v. Salamon , supra, 287 Conn. at 550, 949 A.2d 1092,...