State v. Vasquez

• Decision Date: 28 February 2012
• Docket Number: No. 30889.,30889.
• Citation: 133 Conn.App. 785,36 A.3d 739
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Alberto VASQUEZ.

133 Conn.App. 785

36 A.3d 739

STATE of Connecticut

v.Alberto VASQUEZ.

No. 30889.

Appellate Court of Connecticut.

Argued Nov. 8, 2011.Decided Feb. 28, 2012.

Christine Perra Rapillo, executive assistant public defender, for the appellant (defendant).

Emily Graner Sexton, special deputy assistant state's attorney, with whom, on the brief, was Matthew G. Gedansky, state's attorney, for the appellee (state).

DiPENTIMA, C.J., and GRUENDEL and BEAR, Js.

BEAR, J.

The defendant, Alberto Vasquez, appeals from the judgment of conviction, following a jury trial, of robbery in the third degree in violation of General Statutes § 53a–136 and conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a–48 (a) and 53a–136. The defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal, (2) instructed the jury (a) by refusing to give his requested instruction regarding accomplice testimony, (b) with respect to his alibi defense, (c) regarding consciousness of guilt evidence and (d) by failing to provide a unanimity instruction, (3) denied his motion for a mistrial based on prosecutorial impropriety and (4) denied his motion to suppress his statement to the police. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. At some point prior to the early morning of October 17, 2006, the defendant devised a plan to rob the Mr. Sparkle carwash in the Rockville section of Vernon (carwash). The defendant enlisted the help of his friend, Jose Bultron, and his brother, Angelo Vasquez, to execute his plan. Bultron was familiar with the layout of the carwash and its employees, having worked previously at another Mr. Sparkle facility.

On the morning of October 17, 2006, Bultron and Angelo Vasquez entered the carwash office while the defendant waited in his vehicle on an adjacent street, outside of view. Once inside, Bultron grabbed the sole carwash employee on duty at the time, Gregory Havens, and placed him under guard in a bathroom. Bultron warned Havens that if he moved or tried anything, Bultron's “boy” would shoot. After taking money from the register, Bultron and Angelo Vasquez left the carwash. Outside, they entered the defendant's waiting vehicle and, with the defendant driving, fled the area.

The defendant became a suspect during the subsequent police investigation. On March 28, 2007, the police approached Bultron's former girlfriend, Eileen Vasquez, and asked her to contact the defendant.¹ The police recorded her telephone conversation with the defendant, during which he admitted to having planned the carwash robbery and referred to the crime as “motherfuckin' armed robbery.”

Approximately six months after the robbery, on April 11, 2007, the police executed a warrant for the defendant's arrest at his Hartford home. The police posted officers at the front and back of the home and entered it after speaking with a female occupant. A subsequent search of the home uncovered the defendant hiding in a bedroom closet. The defendant thereafter was transported to the Vernon police station for questioning. After initially denying participation in the robbery, the defendant conceded his involvement in “the Rockville stick up” as a getaway driver.

The defendant was charged in a three count substitute information with robbery in the first degree in violation of General Statutes § 53a–134 (a)(4), robbery in the first degree as an accessory in violation of General Statutes §§ 53a–8 and 53a–134 (a)(4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 (a) and 53a–134 (a)(4). On October 14, 2008, after the close of the state's evidence, the defendant moved for a judgment of acquittal, arguing that the state had failed to prove his requisite mental state for the crimes charged. The court denied the motion.

The jury subsequently returned a verdict finding the defendant guilty of the lesser included offenses of robbery in the third degree and conspiracy to commit robbery in the third degree, and the court rendered judgment accordingly. On February 19, 2009, the defendant was sentenced to a total effective term of ten years incarceration, execution suspended after eight years and nine months, followed by three years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal. Specifically, the defendant argues that the state failed to prove that he used or agreed to use a weapon in the commission of the robbery, which was an essential element of each of the crimes for which he had been charged. Because we determine that the defendant was not aggrieved by the court's denial of his motion, we decline to review this claim.

“[P]roof of aggrievement is ... an essential prerequisite to the court's jurisdiction of the subject matter of the appeal.... Ordinarily, a party that prevails in the trial court is not aggrieved.” (Internal quotation marks omitted.) State v. Sanders, 86 Conn.App. 757, 763–64, 862 A.2d 857 (2005). “The test of aggrievement is whether a party claiming aggrievement can demonstrate a specific personal and legal interest in the subject matter of the court's decision and whether that interest has been specially and injuriously affected by the decision.” State v. Talton, 209 Conn. 133, 137, 547 A.2d 543 (1988).

In claiming that the court improperly denied his motion for a judgment of acquittal on the charges of robbery in the first degree, robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree, the defendant contends that “the state presented no evidence ... to support a finding that the use of a weapon in the course of the robbery was part of the agreement between [the defendant] and ... Bultron....” The defendant, however, was not convicted of any of those offenses but, ultimately, was convicted of the lesser included offenses of robbery in the third degree and conspiracy to commit robbery in the third degree. Neither of those lesser included offenses requires evidence of an agreement to use a weapon. The defendant does not contest the sufficiency of the evidence supporting the lesser included offenses of which he was convicted. Instead, he predicates his claim solely on the issue of lack of evidence of an agreement to use a weapon.² Accordingly, we decline to review the defendant's claim because his appeal challenges the sufficiency of the evidence as to offenses for which he ultimately was acquitted.³ See State v. D'Haity, 99 Conn.App. 375, 391, 914 A.2d 570, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007); see also State v. Hampton, 293 Conn. 435, 444 n. 7, 988 A.2d 167 (2009); State v. Sweeney, 104 Conn.App. 582, 591 n. 4, 935 A.2d 178 (2007).

II

The defendant next claims that the court improperly instructed the jury. Specifically, he contends that the court erred in (1) refusing to give the jury his requested instruction regarding accomplice testimony, (2) instructing the jury on his alibi defense, (3) instructing the jury regarding consciousness of guilt evidence and (4) failing to provide a unanimity instruction. In addition, the defendant claims that the cumulative effect of the court's erroneous instructions deprived him of a fair trial. We disagree with the defendant and will address his claims in turn.

As a preliminary matter, we set forth the standard of review applicable to our analysis of jury instructions. “The standard of review for claims of instructional impropriety is well established. [I]ndividual jury instructions should not be judged in artificial isolation ... but must be viewed in the context of the overall charge.... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict ... and not critically dissected in a microscopic search for possible error.... Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Flores, 301 Conn. 77, 93, 17 A.3d 1025 (2011).

A

First, the defendant claims that the court improperly failed to provide the jury his requested instruction on accomplice testimony. The defendant contends that he was entitled to have the jury instructed specifically that it could consider Bultron's possible interest in obtaining a benefit from the state in exchange for his testimony. The defendant argues that by “failing to instruct on the accomplice's motive to lie, the court violated the defendant's right to due process and a fair trial.” We are not persuaded.

The following additional facts are relevant to the defendant's claim. At trial, Bultron provided testimony implicating the defendant in the robbery, including testimony that the defendant was involved in planning the crime and had driven the getaway car. The defendant requested subsequently that the court instruct the jury that Bultron had been sentenced to a long prison term and, accordingly, may have been motivated to lie to curry favor with the prosecutor and to receive a sentence modification.⁴ At the charging conference, the court concluded that a specific instruction highlighting Bultron's alleged interest in a sentence modification would not be warranted under the evidence presented,...