State v. Reyes, 5511

• Decision Date: 21 June 1989
• Docket Number: No. 5511,5511
• Citation: 19 Conn.App. 179,562 A.2d 27
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ruben REYES.

Page 27

562 A.2d 27

19 Conn.App. 179

STATE of Connecticut v. Ruben REYES.

No. 5511.

Appellate Court of Connecticut.

Argued Oct. 7, 1988.

Decided June 21, 1989.

Jon C. Blue, Former Asst. Public Defender, with whom, on the brief, was Joette Katz, Former Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., with whom, on the brief, was Dennis J. O'Connor, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and SPALLONE and FOTI, JJ.

SPALLONE, Judge.

The defendant takes this appeal from his conviction, after a jury trial, of the crimes of robbery in the first degree; General Statutes § 53a-134(a)(4); ¹ conspiracy to commit robbery in the first degree; General Statutes §§ 53a-48(a) ² and 53a-134(a)(4); accessory to burglary in the first degree; General Statutes §§ 53a-101(a)(1) ³ and 53a-8; ⁴ and conspiracy to commit burglary in the first degree; General Statutes §§ 53a-48(a) and 53a-101(a)(1). The defendant claims that the trial court erred (1) in allowing him to be improperly convicted of two counts of conspiracy arising out of a single agreement, (2) in charging the jury that it could convict him of burglary on the theory that he had remained unlawfully in a building when there was no evidence to support that theory, (3) in allowing him to be convicted of the crime of burglary in the first degree when there was insufficient evidence to support the conviction, and (4) in its charge to the jury on the deadly weapon or dangerous instrument element of the crime of burglary in the first degree.

The following is a brief summary of the evidence presented in this case. During its case-in-chief, the state presented the testimony of five witnesses. Maria Rivera testified that on June 18, 1985, she was living in an apartment in Hartford with her children and her mother, Marguerita Maldonado (the victim). At about 4:30 p.m., Rivera was at home with her three preschool children and her mother, who was in a back bedroom. Rivera was talking with a neighbor in her kitchen when she heard a knock on the door. She opened the door and saw a man whom she identified in court as the defendant, and a man she knew as David, who was later identified as David Ortiz. She did not observe any weapons. Ortiz told Rivera that he was looking for her mother. Rivera called her mother and went back to the kitchen to resume talking with her neighbor. She did not observe either man enter the apartment. About fifteen minutes later, she saw her mother crying and, on the basis of statements by her mother, called the police. A police officer subsequently came to the apartment, spoke with her mother, and left. The officer later returned with two men, neither of whom Rivera recognized. The officer then returned a second time with two different men, one of whom was Ortiz. Rivera did not recognize the other man. Rivera noticed that a radio was missing from her mother's room.

The victim, Marguerita Maldonado, testified that, when she opened the door in response to her daughter's call, "David pointed me with a gun." She described the gun as "big," extending the length of her hand and forearm. The defendant was with Ortiz. Ortiz put the gun to her head and told her to walk toward her bedroom. When they reached the bedroom, he told her to sit down. Her two year old granddaughter was in the bed. The victim told Ortiz that the girl was there, and he told her to "shut up." Ortiz looked in the victim's pocket for money, while his companion, whom she identified in court as the defendant, searched the mattresses and drawers. Ortiz continued to hold the gun close to her head. When no money was found, Ortiz took a large "boom box" radio. After the two men left, the victim saw them enter a black and yellow car parked outside. She made a note of the license number. She then told her daughter what had happened. About five days later, she selected the defendant's photograph from an array.

Jack Leitao, an officer in the Hartford police department, testified that he was dispatched to the victim's apartment at 4:33 p.m. on the day in question. Subsequently, after Leitao had broadcast over the police radio a description given to him by the victim, another officer, Joseph Sikora, arrived at the apartment with two men. One man was Ortiz. The other man was not identified and was released. Ortiz told Leitao where the victim's radio could be found. On the basis of that information, another officer, Michael Fallon, was dispatched to the given address and retrieved the radio. One week later, on June 25, 1987, Leitao showed the victim a photographic array containing a photograph of the defendant. She positively identified the photograph of the defendant as that of the man who had been with Ortiz.

Sikora testified that at 4:33 p.m. on the day in question he heard a dispatch from Leitao. Approximately five to ten minutes later, he saw a vehicle matching the description drive by. It was a yellow Toyota with a black top, bearing license number 3045B. Sikora took the two men in the car to the victim's apartment, where Ortiz was identified. The other man was released. No weapons or radios were found in the car.

Fallon testified that on the afternoon in question he received a dispatch to go to 199 Sigourney Street in Hartford to search for an Hispanic male with a "boom box" radio. The building at 199 Sigourney Street is a large brick structure with several floors. No person matching the description was found. On the third floor, however, Fallon found a duffel bag and a large "boom box" radio. The duffel bag contained socks, clothes, and an identification card of Ortiz. The victim subsequently identified the radio as hers. No weapons were found in the bag.

The parties stipulated that the defendant's brother, Rene Reyes, was the registered owner of a 1973 yellow and black Toyota bearing temporary registration number 3945B.

The defendant presented the testimony of his brother and Ortiz, as well as testifying on his own behalf. The defendant testified that he was arrested in late August, 1985, but knew nothing about the incident for which he was arrested and charged, other than what he subsequently learned from Ortiz. The defendant denied having seen Ortiz on the day in question. He testified that, between the hours of 11 a.m. and 3 to 3:15 p.m. on the day in question, he was working on his brother's 1973 Toyota, installing a new clutch. When he had finished, his brother took the car out for a test drive. At about 3:30 to 3:45 p.m., his brother returned, stating that the car had been stolen. At about 5 p.m., the defendant called the police, at his brother's urging, to report the theft. The woman who answered the telephone informed the defendant that the car had been towed incident to an arrest. The defendant spent the entire afternoon at home.

The defendant's brother testified that he took the car out for a road test shortly after 3 p.m. and parked it at the corner of Park and Putnam Streets in Hartford while he went to get some milk. He left the keys in the car and the engine running. When he returned, the car was gone.

David Ortiz testified that, at about 1:30 p.m. on the day in question, he purchased what he thought were drugs from the victim. He then went to his ex-girlfriend's house, where he discovered that the drugs were "no good." He stole a car parked at the corner of Park and Putnam Streets and drove it to the victim's apartment. He did not have a gun, and he was alone. The victim opened the door and invited him in. They stood just inside the door in the living room. He told her that the drugs were no good and that he wanted his money back. She told Ortiz that her supplier had already taken the money, and gave him her radio until the next day, when she could give him his money back. He never went to her bedroom. He took the radio to the house of a friend named Carlos who lived at 199 Sigourney Street. Carlos asked him to give a man a ride downtown. Ortiz and the other man were arrested while driving downtown.

The state presented the testimony of two police officers in rebuttal. Lucien Roy testified that he was an officer in the Hartford police department assigned to the records division. He testified that when the department receives a stolen vehicle complaint, the complaint is routinely entered into the police department's computer. A computer printout concerning the 1973 Toyota in question showed no indication that the car had been reported stolen. Leitao testified that there was a "possibility" that this information might not have been entered into the computer.

Leitao testified that he talked to Ortiz at the time he arrested him and asked him who the other party was. Ortiz had responded that it was the defendant and that both the defendant and the radio could be found at 199 Sigourney Street.

The defendant's first claim of error is that the trial court erred in allowing two judgments of conviction for conspiracy to be rendered when the evidence of the state, if credited beyond a reasonable doubt, clearly demonstrated that the defendant could have entered into only one agreement. The state concedes that the evidence established that Ortiz and the defendant entered into a single agreement to burglarize and rob the victim and that, therefore, the trial court erred in allowing two conspiracy convictions to stand.

Although the defendant did not raise this claim in the trial court; see Practice Book § 4185; we will address his claim because it implicates plain error by the trial court. See State v. Kitt, 8 Conn.App. 478, 489, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987).

Where the evidence establishes only one agreement, there can be only one conspiracy conviction, even though the conspirators planned, as part of the agreement, to engage in conduct violative of more than one criminal statute. State v. Stellato, 10 Conn. App. 447, 456-57, 523 A.2d 1345 (1987); State v. Kitt, s...