State v. Tilus

• Decision Date: 26 May 2015
• Docket Number: AC 35567
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. TINESSE TILUS

STATE OF CONNECTICUT v. TINESSE TILUS

AC 35567

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 5, 2015

May 26, 2015

Sheldon, Prescott and Pellegrino, Js.

(Appeal from Superior Court, judicial district of Fairfield, Kavanewsky, J.)

Janice N. Wolf, assistant public defender, for the appellant (defendant).

Emily D. Trudeau, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

Opinion

SHELDON, J. The defendant, Tinesse Tilus, 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) (2). On appeal, the defendant claims that his conviction should be reversed and his case should be remanded for a new trial on grounds that (1) the trial court violated his sixth amendment right to conflict free counsel by inadequately canvassing him as to his desire to proceed with retained counsel who had previously represented both him and one of his codefendants in the case; (2) the trial court violated his sixth amendment right to present a defense by inducing that same codefendant, a key defense witness, to invoke his fifth amendment privilege against self-incrimination and not testify; (3) the trial court abused its discretion by declining to admit certain physical evidence received from his nontestifying codefendant in support of his theory of defense; and (4) the prosecutor violated his right to a fair trial by committing several improprieties in closing and rebuttal arguments to the jury. We affirm the judgment of the trial court.

The jury was presented with the following evidence upon which to base its verdict. On December 28, 2011, at approximately 8 p.m., Rene Aldof and his employee, Ramon Tavares, were tending Aldof's store, the Caribbean-American Grocery and Deli (store) located at 263 Wood Avenue in Bridgeport, when four men entered the store. One of the men was the defendant, whom Aldof recognized as "Tinesse," a regular customer of the store. Aldof also recognized a second man, Jean Barjon, but did not recognize either of the two other men. One of the unknown men pulled out a handgun and demanded that Aldof give him the money, while the other three men, including the defendant, "encased" him in an effort to prevent his escape. Aldof was able to push past the men and exit the store, pursued by one of the men, who unsuccessfully attempted to restrain him by grabbing his coat. Aldof ran into a nearby laundromat, where he held the door shut to prevent his pursuer from coming in behind him.

Tavares, who remained in the store after Aldof's departure, was stationed in a plexiglass enclosed booth where the cash register was located. A man approached the booth, pointed a handgun at Tavares' head and ordered him to open the door. Tavares immediately complied, and the man entered the booth. The man, still holding the gun in his outstretched hand, "turned" Tavares to face the wall and told him to place his hands up against the wall. Tavares "felt something in the back of [his] head," and the man demanded that he "give him all the money." The man took Tavares' cell phone and wallet, and the money in the cash register. Tavares asked the man to return his wallet, as it contained his papers, and the man did so, keeping only the cash insidethe wallet. Tavares stood facing the wall until he heard the man exit the store.¹

Patrol Officer Elizabeth Santora, of the Bridgeport Police Department, was on her dinner break, driving down Wood Avenue in a marked police cruiser, when she observed a person later identified as Aldof, standing outside of the Laundromat, waving his arms and screaming "like a crazy person because [he] thought that [he] was going to die." Aldof told Santora that he had just been robbed at gunpoint, and he pointed to one of his alleged assailants, who was still in the immediate vicinity. Once Santora focused on the suspect, he started walking fast down Wood Avenue. Santora immediately followed him in her cruiser, and Aldof followed on foot, shouting that the man had just robbed him.

Santora kept the suspect in her sights as he broke into a run and turned the corner onto Sherwood Avenue. There, Santora observed the suspect come to a halt next to several trash cans outside of the Esquina Latina Restaurant. Santora stopped her cruiser, got out of her vehicle and shouted, "don't even fucking move." The suspect heeded the order. Santora approached the suspect, gave him a "quick patdown," then grabbed him by the back of his pants and pulled him toward the police cruiser.

As Santora approached the cruiser with the suspect in tow, she observed a white Nissan Altima that had been parked on Sherwood Avenue begin "pulling off" into the street. Aldof, then positioned on the corner of Wood and Sherwood Avenues, told Santora that the three men in the Altima had also been involved in the robbery. Santora flagged down the vehicle and told its driver to stop the car and give her the keys. The driver obeyed. The first suspect and the three men in the Altima were detained for questioning. The men were later identified as Guillatemps Jean-Philippe, Jean Louis, Barjon, and the defendant. Aldof confirmed that the detainees were the same four men who had robbed his store.

Once the scene had been secured, Santora and several other members of the Bridgeport Police Department searched the surrounding area for the gun that allegedly had been used to perpetrate the robbery. A nine millimeter pistol was discovered on the ground in the vicinity of the trash cans where Santora had apprehended the fleeing suspect. The pistol was taken into evidence and later sent to the firearm and tool mark division of the state forensic science laboratory for testing and analysis. The pistol was examined, test fired and found to be operable. A search of a national database revealed that the pistol had been used in a recent incident in New Jersey.

The defendant was arrested and charged with one count each of conspiracy to commit robbery in the firstdegree in violation of General Statutes §§ 53a-48 and 53a-134, and robbery in the first degree in violation of § 53a-134. The defendant pleaded not guilty to the charges and elected a jury trial.

The defendant, who testified in his own defense, challenged Aldof's account of events on the evening of the alleged robbery. The defendant testified that he had known Aldof since he was a small child because their families came from the same part of Haiti. He also testified that he had been in Aldof's store "many times," and that on such occasions he had observed Aldof running an illegal Dominican lottery. The defense claimed that Aldof had concocted his story about the alleged robbery to avoid paying out a large sum of money to one of the alleged coconspirators, Jean-Philippe, who had gone to Aldof's store alone that evening to collect on a winning lottery ticket he had bought there.

The defendant explained that on the night of the alleged robbery, his friend, Barjon, had come to his house at about 7 p.m. and asked him if he would like to take a ride to New Haven. When he agreed to do so, he got in Barjon's car, where Jean-Philippe and another man he did not know were seated in the rear passenger seat. The defendant was told that Barjon had agreed to drive the two men to the train station in New Haven. Instead, however, Barjon drove to Aldof's store and parked his car on the corner of Wood and Sherwood Avenues. The defendant testified that once they arrived at the store, Jean-Philippe, "with no mention, nothing," got out of the car and entered the store. The defendant and the other two men remained in the parked car, where the defendant called a friend on his cell phone. Shortly thereafter, while he was still on the phone, he saw Jean-Philippe and a police officer approaching the vehicle. When Jean-Philippe tried to open the car door, the police officer ordered him to stop. The defendant and the other two men were then escorted into a police van, questioned, and later arrested.

Jean-Philippe also testified for the defense.² Jean-Philippe stated that he did not know the defendant, but that he was a friend of Barjon. He testified that he had gone to Aldof's store on the evening of December 28, 2011, to collect $39,000 in lottery winnings, but that Aldof had refused to pay him. Jean-Philippe claimed that he went into the store alone while the other three men remained in the car, drinking coffee and smoking cigarettes. In the store, Jean-Philippe met Aldof, whom he referred to as the "old man," and produced his receipt with the winning lottery numbers and showed it to him. In response, Aldof left the store and walked into the laundromat next door. When Jean-Philippe was later arrested, he told police that he had played the lottery at the store and had gone back there to collect his money.³ Jean-Philippe also claimed not to have seen anyone but Aldof in the store that evening, although hetestified that he did not know whether someone else may have been in the store, in the section "where they play the Lotto . . . ."⁴ Jean-Philippe denied having a pistol.

The jury found the defendant guilty of robbery in the first degree. The jury found him not guilty, however, of conspiracy to commit robbery in the first degree. The court rendered judgment in accordance with the jury's verdict, sentencing the defendant to a term of twelve years incarceration, execution suspended after eight years, followed by four years of probation. The defendant appeals from that judgment.

I

The defendant first claims that the trial court's failure to secure a valid waiver violated his constitutional right to conflict free representation. Specifically, he claims that the court, having knowledge of his trial counsel's conflict of interest due to his prior representation of the codefendant, Barjon, improperly relied on the defendant's ill-advised...