State v. Rosario, No. 27959.

• Decision Date: 10 March 2009
• Docket Number: No. 27959.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Eric ROSARIO.

966 A.2d 249

113 Conn.App. 79

STATE of Connecticut v. Eric ROSARIO.

No. 27959.

Appellate Court of Connecticut.

Argued November 14, 2008.

Decided March 10, 2009.

John W. Watson, special public defender, for the appellant (defendant).

Timothy F. Costello, deputy assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Paul J. Ferencek, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, LAVINE and BEACH, Js.

BEACH, J.

The defendant, Eric Rosario, appeals from the judgment of conviction, rendered after a court trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134(a) and one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48(a) and 53a-134(a).¹ The trial court also found the defendant guilty of being a persistent dangerous felony offender pursuant to General Statutes § § 53a-40(a)(1)(A)(iv). On appeal, the defendant claims that (1) the state adduced insufficient evidence to sustain his conviction of robbery and conspiracy to commit robbery, (2) the court improperly permitted the state to introduce into evidence two inculpatory statements he made to the police in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), (3) the court improperly admitted into evidence an irrelevant photographic array by which the victim identified the defendant's coconspirator and (4) the court's canvass of the defendant was insufficient to establish that he waived his right to be tried by a finder of fact who was unaware of the part B information. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our resolution of the defendant's appeal. In the early morning hours of December 31, 2003, Sono Singh was working alone on the 7 p.m. to 7 a.m. shift at Atlantic News & Variety, a convenience store on Atlantic Street in Stamford. Sometime between 1 a.m. and 1:30 a.m., Singh noticed a man, later identified as Jonathan Rios, enter the store, linger for about fifteen minutes and leave without purchasing anything. Singh was able to notice his physical characteristics and that he was wearing a baseball cap. The defendant stated, during a later interview with police, that he was friendly with Rios and that he waited outside the store while Rios went inside.

Business was slow between 2:45 a.m. and 3 a.m. Singh rested his head on the cashier's counter but did not fall asleep. While Singh was resting his head on the counter, a person, later identified as Rios, entered the store and struck him in the head with what Singh believed to be a metal rod. In a later interview with the police, the defendant admitted to being with Rios in the vicinity of the store and seeing Rios enter the store a second time. Singh looked up and recognized the person who had hit him to be the same man who previously had entered the store. During the attack, Singh saw another man, who was later identified as the defendant, enter the store. He was wearing a bandana around his mouth and nose. The defendant grabbed the cash register on the counter and dropped it on the floor. After dropping the cash register, he ran from the store. Rios followed him out of the store. Upon leaving the store, the defendant and Rios ran in opposite directions. Singh then attempted to call for help, but he was unable to do so because the telephone cord had been removed from the telephone. Shortly thereafter, a regular customer entered the store and telephoned the police from a pay telephone across the street. Prior to the attack, the register contained bills of various denominations, including $100 bills and $20 bills. After the attack, the cash register did not contain any $100 bills or $20 bills.

At approximately 3:10 a.m., Lawrence Brown, a sergeant with the Stamford police department, was dispatched to the scene. When he arrived, two other officers were already present. Brown noticed the defendant walking on the opposite side of Atlantic Street while talking on his cellular telephone. There were no other pedestrians on the street, and the defendant was dressed only in a thin running suit despite the near freezing temperature. He acted nervous and defensive. He gave the police his name and stated that he lived in New York City but was in Stamford visiting his grandfather, who lived approximately one mile from the scene.

Later, Singh was able to identify Rios from a photographic array as the person who had assaulted him. Singh was unable to identify the second perpetrator because he never saw his face. The police sought the identity of the second perpetrator and interviewed the defendant. At trial, Sergeant Anthony Lupinacci of the Stamford police department, whose testimony the court credited, gave the following account of his two interviews with the defendant. On February 6, 2004, he and Officer Rafael Barquero interviewed the defendant at the Stamford police department. The officers advised the defendant of his Miranda rights.² Although the defendant refused to sign an advisement of rights form, he agreed to discuss what had happened on the night in question. The defendant initially told the police that he had traveled by train from New York City to Stamford in the hours before the robbery to attend a family reunion. On the train, the defendant met two men, one of whom was Rios. Upon arriving, the defendant and the two men walked around downtown Stamford for a while. Shortly thereafter, the defendant left the two men and went to his grandfather's house. He remained at his grandfather's house for the rest of the evening until he received a telephone call from Rios, who wanted directions back to the train station. The defendant left his grandfather's house and while walking to meet Rios, he encountered Brown and police Sergeant Ernest Maldonado across the street from the crime scene.

The defendant, who appeared to be extremely nervous during the interview, then began crying and admitted that "he was lying about . . . the story that he just told." He further stated that he and Rios were friends who had traveled from New York City together, and he related the following modified version of events. After arriving in Stamford, the defendant and Rios dropped off some clothing at the house of the defendant's grandfather and then walked around town late at night. At one point, Rios walked into a store on Atlantic Street, stayed for a short time and then left. He and Rios walked around some more but eventually returned to the store. Rios entered the store while the defendant remained outside talking on his cellular telephone. The defendant looked into the store window and saw Rios striking the clerk over the head with some type of stick. The defendant knocked on the window but then ran back to his grandfather's house. Once at his grandfather's house, the defendant changed his clothes. He received a telephone call from Rios asking for directions to the train station. The defendant left his grandfather's house and walked downtown where he encountered the police at the crime scene. When the interviewing officers asked the defendant whether he had entered the store when Rios was striking the clerk, he put his head down and did not respond. The interview concluded, and the defendant returned to New York City.

The police subsequently obtained a warrant for the defendant's arrest. Lupinacci and another officer traveled to New York City to interview the defendant and inform him of the warrant. They met with the defendant and informed him of his Miranda rights. Before any questioning began, the defendant stated: "If I talk to you about that night, I'll go to jail for a long time." The defendant thereafter was uncooperative and unwilling to answer questions. The defendant then stated that "[y]ou guys just want me to tell you what happened so I can go—so I can get a lot of time." The defendant did not provide any other statements.

Following a trial to the court, the court found the defendant guilty of the crimes charged in the part A information. Thereafter, on the part B information, the court found the defendant guilty of being a persistent dangerous felony offender under § 53a-40(a)(1)(A)(iv). The court did not impose an enhanced sentence pursuant to the part B information. The court imposed a total effective sentence of twelve years incarceration followed by eight years special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the state adduced insufficient evidence to sustain his conviction of robbery and conspiracy to commit robbery. He argues that there was insufficient evidence that (1) a larceny was committed, (2) he was the perpetrator and (3) he conspired with Rios to rob the convenience store. We disagree.

"In reviewing the sufficiency of the evidence to support a criminal conviction we 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. . . . We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] 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 [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] 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...