State v. Jahsim T. , 165 Conn. App. 534 ( 2016 )

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STATE OF CONNECTICUT v. JAHSIM T.*
(AC 36708)
Alvord, Mullins and Schaller, Js.
Argued January 5—officially released May 17, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Cradle, J.)
Pamela S. Nagy, assistant public defender, with
whom, on the brief, was Janice Wolf, senior assistant
public defender, for the appellant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, was John C. Smriga, state’s
attorney, for the appellee (state).
Opinion
MULLINS, J. Following a trial to the court, the defen-
dant, Jahsim T., appeals from the judgment of the court
adjudicating him a youthful offender for committing
the crime of conspiracy to commit robbery in the first
degree in violation of General Statutes §§ 53a-48, 53a-
134 (a) (4), and 54-76b. On appeal, the defendant claims
that (1) the evidence was insufficient to support his
adjudication for having committed conspiracy to com-
mit robbery in the first degree, and (2) the court erred
in denying his motion to dismiss based on the state’s
failure to obtain and produce a relevant videotape that
contained evidence used against him. We agree with
the defendant’s first claim. Accordingly, we reverse the
judgment of adjudication as a youthful offender and
remand the case to the trial court with direction to
render a judgment of acquittal.1
The following facts, as found by the trial court, and
procedural history are relevant to our analysis. On
March 8, 2013, the minor defendant and four of his
friends were inside a local market, near the defendant’s
home, at approximately 10:30 p.m. The defendant wore
a monitoring device on his ankle. The market had a
video surveillance system that recorded the defendant’s
presence and his interactions with the market
employee, but it had no audio component. The defen-
dant asked a market employee if he could use the tele-
phone, but the employee said no. The defendant then
used a cell phone to make a call. While on the phone,
the defendant asked the employee for the address of
the store, but the employee was unsure; the defendant
then asked for the zip code, which the employee gave
to him. The employee overheard portions of the defen-
dant’s telephone conversation and thought he was
ordering something. After completing the telephone
call, the defendant and his friends left the market.
At approximately 10:40 p.m., Pizza Hut in Bridgeport
received a telephone call from someone purporting to
be ‘‘Sarah.’’ Sarah placed a food order for one large
pizza and two orders of chicken wings to be delivered
to 319 East Avenue, which was just a few doors down
from the market. At approximately 10:55 p.m., the deliv-
eryman was dispatched to deliver the order.
When the deliveryman arrived at 319 East Avenue,
he saw a young man on the porch, who was wearing
sweatpants. He asked the young man if he had ordered
a pizza, and the young man responded affirmatively.
The deliveryman then got out of his vehicle, with the
items that had been ordered, and approached the porch.
When he got to the porch, he was approached on the
right by a masked man holding a shotgun, who told him
to ‘‘hold it right there.’’ Then, another person
approached the deliveryman from the left, and all three
then attacked, punching, kicking, and hitting the deliv-
eryman in the head with the shotgun. The attackers
took money from the deliveryman’s pockets and then
went through his vehicle, stealing his cell phone, global
positioning system (GPS) holder and other things. After
beating and robbing the deliveryman, the attackers ran
down the street. There was no evidence that the defen-
dant was present at the scene of the robbery.
When investigating the robbery, members of the
Bridgeport Police Department stopped at the market to
ask questions. While there, they viewed the surveillance
video, and the market employee pointed out the defen-
dant and his friends on the video. Jose Morel, the owner
of the market, recognized the defendant on the video
as well.
The officers then received a tip that people involved
in the robbery were located in a multiunit garage near
the market. The police went to this multiunit garage,
and, when they opened the garage door, they heard
people running. Police then discovered the delivery-
man’s GPS holder, a chicken wing box, and the pizza
warmer bag. The police apprehended an individual as
he was running from the garage, and arrested him. They
recovered a cell phone from him, which matched the
phone number of the cell phone used to call Pizza Hut
for the delivery to 319 East Avenue. The police recog-
nized this person as one of the people on the surveil-
lance video standing near the defendant at the market.
There was no evidence that the defendant was present
in this multiunit garage when the police arrived there.
The defendant was arrested on March 9, 2013, and
charged as a youthful offender with robbery in the first
degree in violation of §§ 53a-134 (a) (4) and 54-76b,
assault in the first degree in violation of General Stat-
utes §§ 53a-59 (a) (4) and 54-76b, and conspiracy to
commit robbery in the first degree in violation of §§ 53a-
48, 53a-134 (a) (4), and 54-76b. Following the state’s
case, the defendant filed a motion for a judgment of
acquittal on all charges. The court, Cradle, J., granted
the motion as to the robbery and assault charges, find-
ing that there was no evidence that the defendant was
present at the scene of the robbery, but denied it as to
the charge of conspiracy to commit robbery in the first
degree. The court later adjudicated the defendant a
youthful offender for having committed conspiracy to
commit robbery in the first degree, and it sentenced
him to four years incarceration, suspended after two
years, followed by three years probation. This appeal
followed.
On appeal, the state concedes, and we agree, that
the evidence was insufficient to support the defendant’s
adjudication as a youthful offender for committing con-
spiracy to commit robbery in the first degree because
there was no evidence, direct or circumstantial, that
the defendant had agreed or intended that his cocon-
spirators would use a firearm during the robbery. Cf.
State v. Pond, 138 Conn. App. 228, 234, 50 A.3d 950
(2012) (for conviction of conspiracy to commit robbery
in second degree, state must prove that defendant spe-
cifically agreed and intended that what was represented
to be deadly weapon or dangerous instrument would
be used or displayed during robbery), aff’d, 315 Conn.
451, 108 A.3d 1083 (2015); see also State v. Pond, 315
Conn. 451, 489, 108 A.3d 1083 (2015) (same). Thus, the
state concedes that the defendant’s adjudication as a
youthful offender for committing conspiracy to commit
robbery in the first degree cannot stand.
The state argues, however, that by finding that the
defendant had conspired to commit robbery in the first
degree, the court necessarily found that he had commit-
ted the lesser included offense of conspiracy to commit
robbery in the third degree. Therefore, the state con-
tends that the appropriate disposition is to remand the
matter to the trial court with direction to modify the
basis of the adjudication to the lesser included offense
of conspiracy to commit robbery in the third degree
as a youthful offender in violation of General Statutes
§§ 53a-48, 53a-136 (a), and 54-76b.
The defendant counters the state’s contention by
arguing that, not only was there no evidence of an
agreement to use a firearm, there was no evidence that
the ‘‘defendant conspired with anyone to commit a rob-
bery . . . .’’ He further argues, however, that even if
there is inferential evidence that he conspired to com-
mit robbery in the third degree, which there is not, after
we reverse the present judgment of adjudication as a
youthful offender based on the crime of conspiracy to
commit robbery in the first degree, the matter should
be remanded to the trial court with direction to render
a judgment of acquittal. The defendant argues that this
is appropriate because the state never sought to charge
him with a lesser included offense. He also contends
that his trial strategy might have been different if the
state had charged him in the alternative. Ultimately, he
contends that it would be unfair to modify the basis
of his adjudication as a youthful offender to a lesser
included offense under the circumstances of this case.
On the basis of State v. LaFleur, 307 Conn. 115, 51
A.3d 1048 (2012), we conclude that a modification of
the defendant’s conviction is inappropriate and that the
case must be remanded to the trial court with direction
to render a judgment of acquittal.2
When a judgment of conviction is reversed for insuffi-
cient evidence as to one of the elements that distinguish
that crime from an uncharged lesser included offense,
a modification of the judgment may be appropriate only
if it would not be unfair to the defendant. Id., 143. In
assessing whether such a modification would not be
unfair to a defendant, our Supreme Court, in State v.
Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009), set
out and applied four factors to assist with that determi-
nation: ‘‘First, [we consider whether there is] reason
to believe that the state opted against [charging the
defendant or] seeking a jury instruction on the lesser
offense . . . for strategic purposes. . . . Second, [we
consider whether there had been a change in the law
after the defendant’s trial and whether] the defendant
has benefited from [that change without raising the
issue] . . . . Third, [we consider whether] the defen-
dant . . . has . . . object[ed] to the state’s request for
a modification of the judgment. . . . Finally, [we con-
sider whether] it would be unfair to the defendant to
impose a conviction of [the lesser offense] . . . .’’
(Citation omitted.) Id., 595; see also State v. LaFleur,
supra, 307 Conn. 143.
In LaFleur, our Supreme Court, guided by Sansever-
ino, also considered whether it would not be unfair to
the defendant in that case to impose a conviction of a
lesser included offense after it concluded that there
was insufficient evidence to support his conviction of
the greater offense. State v. LaFleur, supra, 307 Conn.
141–54. The defendant in LaFleur had been charged
with assault in the first degree for beating the female
victim severely with his fists. Id., 121. The trial court
instructed the jury that the defendant’s fists could be
dangerous instruments. Id., 123. Following his convic-
tion, the defendant appealed. Id., 119.
On appeal, the defendant claimed in relevant part
that there was insufficient evidence to support his con-
viction of assault in the first degree because his fists
were not dangerous instruments. Id. He also contended
that the judgment of conviction should not be modified
to the lesser included offense of assault in the second
degree but, rather, that our Supreme Court should direct
the entry of a judgment of acquittal. Id., 140–41. Our
Supreme Court agreed that fists were not dangerous
instruments, and, therefore, that there was insufficient
evidence to support the conviction of assault in the first
degree. Id., 140. Given that determination, the state
requested that the Supreme Court order a modification
of the judgment of conviction to the lesser included
offense of assault in the second degree. Id., 141–42. The
state, however, had not requested a jury instruction on
the lesser included offense, and therefore, the jury could
not have found the defendant guilty of assault in the
second degree. Id., 142. Nevertheless, the state argued
that modifying the judgment would not be unfair to the
defendant because the jury necessarily found that the
defendant had committed assault in the second degree
by virtue of its finding that he had committed all the
elements of the greater offense of assault in the first
degree. Id., 144. Thus, the court considered whether it
should order a modification of the judgment of convic-
tion to assault in the second degree, as requested by
the state, or whether it should direct a judgment of
acquittal. Id., 140–54.
Looking to Sanseverino for guidance, our Supreme
Court determined that it could not conclude that ‘‘it
would be fair to the defendant to modify the judgment
of conviction,’’ and, accordingly, it reversed the judg-
ment of conviction and remanded the matter to the trial
court with direction to render a judgment of acquittal.
Id., 153. The court in LaFleur reviewed the following
factors when making its assessment: First, the court
considered whether this decision amounted to a change
in the law. Id., 147. The court determined that its conclu-
sion that fists were not dangerous instruments could
not be characterized as a change in the law, but that
it merely ‘‘raise[d] a known question of first impression
for [the] court.’’ Id. Second, the court determined
whether the state’s decision to not request a jury charge
on the lesser included offense was a matter of strategy,
so as to avoid a verdict of guilty on that charge rather
than on the greater offense, and it concluded that the
state’s decision was strategic. Id., 147–48.
Third, the court examined whether the defendant had
benefited from a change in the law that he had not
raised as a basis for his appeal. Id., 148–49. The court
determined that the defendant, in fact, had raised and
diligently pursued a known issue of first impression,
namely, that fists are not dangerous instruments. Id.
Fourth, the court considered whether the defendant
specifically had objected to the state’s request that the
court remand the matter with direction to modify the
judgment of conviction to reflect the uncharged lesser
included offense, and it concluded that the defendant
properly had objected. Id., 150.
Fifth, the court considered whether it could ‘‘be sure
that the defendant . . . did not forgo a particular trial
strategy due to the lack of a lesser included offense
. . . .’’ Id., 151. The court concluded that it could not be
sure if the defendant would have employed a different
strategy had he been susceptible to a conviction of the
lesser included offense. Id.
After examining these five factors, and finding that
they favored the defendant, the court concluded that
‘‘because [it had] not determined that, under the unique
circumstances of [that case], it would be fair to the
defendant to modify the judgment of conviction . . .
[it] must reverse the defendant’s conviction of assault
in the first degree . . . and remand that case to the
trial court with direction to render judgment of acquittal
. . . .’’ Id., 152–54.
In the present case, the defendant contends that
LaFleur is on point with his case and that it controls
the outcome of this appeal. We agree.
Following the decisions of our Supreme Court in
LaFleur and Sanseverino, we next apply the factors
employed in those cases in order to determine whether
a modification of the judgment would not be unfair to
the defendant.
First, we consider whether this case has brought
about a change in the law or whether the law recently
has been changed. See id., 147. We conclude that this
case has not changed the law, nor has the law changed
recently. Here, the state was on notice that it was
required, pursuant to State v. Pond, supra, 138 Conn.
App. 234, to prove that the defendant, whom it had
charged with conspiracy to commit robbery in the first
degree as a youthful offender, had the specific intent
that his coconspirators would use a firearm to rob the
pizza deliveryman. Although the state contends that, at
the time of the defendant’s trial, our Supreme Court
had granted certification to appeal in Pond specifically
on the issue of whether the state had to prove that the
defendant had the specific intent that his coconspira-
tors would use what they represented to be a deadly
weapon or dangerous instrument during a robbery, and
that this is ‘‘noteworthy,’’ our appellate decision in Pond
was released on September 25, 2012, more than one
year before the defendant’s trial. ‘‘It is axiomatic that
[a] decision of [an appellate court] is a controlling prece-
dent until overruled or qualified. . . . [S]tare decisis
. . . serve[s] the cause of stability and certainty in the
law—a condition indispensable to any well-ordered sys-
tem of jurisprudence . . . .’’ (Internal quotation marks
omitted.) Ferrigno v. Cromwell Development Associ-
ates, 44 Conn. App. 439, 443, 689 A.2d 1150 (1997), aff’d,
244 Conn. 189, 708 A.2d 1371 (1998); see also Burns v.
Adler, 158 Conn. App. 766, 792, 120 A.3d 555 (previous
decision of Appellate Court binding ‘‘until it is overruled
either by our Supreme Court or by an en banc panel
of this court’’), cert. granted on other grounds, 319
Conn. 931, 125 A.3d 205 (2015). Accordingly, we con-
clude that the law has not changed recently, and, there-
fore, this factor is not relevant to the present case.
Second, we consider whether there is reason to
believe that the state, for strategic purposes, chose not
to charge the defendant with the lesser included offense
of conspiracy to commit robbery in the third degree.
State v. LaFleur, supra, 307 Conn. 147. The defendant
argues that the state ‘‘could have either charged the
defendant with conspiracy to commit robbery in the
third degree, or it could have argued that such a convic-
tion was appropriate during summation.3 The state did
neither one of these things, and it should not be
rewarded on appeal when it never put the defendant
on notice that it was seeking a conviction for conspiracy
to commit robbery in the third degree. . . . [T]he state
. . . had the responsibility to bring the proper charges
and to put the defendant on notice as to those charges.’’
(Citation omitted; footnote added.) We agree with
the defendant.
As stated previously, the state was on notice of the
elements required to prove that the defendant was guilty
of conspiracy to commit robbery in the first degree.
Despite its knowledge of the required elements of that
offense, the state chose not to charge the defendant
with the lesser included offense. Thus, knowing that
Pond already had changed the law in 2012, the state
strategically sought an adjudication solely on the
greater offense without giving the court the option of
an adjudication on the lesser included offense.
The third factor we consider is whether there was a
change in the law after the defendant’s trial and whether
the defendant is seeking to benefit from that change
without having raised the issue himself on appeal. State
v. LaFleur, supra, 307 Conn. 148. As previously stated
in our discussion of the first factor, the law has not
changed recently, and the defendant in this case has
raised the relevant issue, namely, that on the basis of
Pond, his adjudication as a youthful offender for con-
spiracy to commit robbery in the first degree cannot
stand.
The fourth factor we consider is whether the defen-
dant has voiced an objection to the state’s request for
a modification of the conviction. State v. LaFleur, supra,
307 Conn. 150. We conclude that the defendant has
objected and has fully briefed his objection to this court.
Finally, the fifth factor we consider is whether we can
be sure that the defendant would not have undertaken a
different trial strategy had he been charged with the
lesser included offense. Id., 151. As our Supreme Court
noted in LaFleur, ‘‘we cannot be sure that the defendant
in the present case did not forgo a particular trial strat-
egy due to the lack of a lesser included offense charge.
Regardless of whether the defense challenged the
state’s claims as to elements of the lesser included
charge, trial strategy . . . [is] inevitably colored by the
inclusion of a lesser included charge to the jury.’’ Id.
We take this language to mean that whether a defen-
dant’s trial strategy is colored turns, in this context, on
the presence or absence of a lesser included offense
rather than the fact that it is a jury trial.
In the present case, we not only have this general
truism from LaFleur regarding the inevitable coloring
of a defendant’s trial strategy when a lesser included
offense is in play, but the defendant also explicitly
argues that he may have defended his case differently
had he also been charged with this lesser included
offense. Indeed, when asked during oral argument to
give one example of something he may have done differ-
ently at trial, the defendant responded that he had not
contested that he was at the market shortly before the
Pizza Hut deliveryman was beaten and robbed just a
few doors down from the market, and that he likely
would not have left that factual assertion uncontested.
Thus, like the court in LaFleur, we cannot conclude
that the defendant’s trial strategy would not have been
different had the state also charged him with the lesser
included offense. See id.; see also footnote 2 of this
opinion.
On the basis of these factors, guided by our Supreme
Court’s decision in LaFleur, we cannot conclude that
it would be fair to the defendant to order a modification
of the judgment of adjudication as a youthful offender.
Accordingly, the judgment must be reversed and a judg-
ment of acquittal directed.
The judgment is reversed and the case is remanded
with direction to render a judgment of acquittal.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
1
Because we conclude that the defendant’s conviction must be reversed
and a judgment of acquittal ordered, we do not consider his second claim
on appeal.
2
Even if we were not constrained by our Supreme Court’s decision in
LaFleur, we are not necessarily persuaded that we would automatically
remand the case to the trial court with direction to modify the basis of the
adjudication as a youthful offender to conspiracy to commit robbery in the
third degree, which is the specific modification the state is requesting.
Although the state concedes that there was no evidence that the defendant
knew or agreed that his coconspirators would employ the use of a firearm
in this case, we question what evidence there is, inferential or otherwise,
that the defendant knew or intended that his coconspirators would use or
threaten the use of force in obtaining the pizza and related items that he is
alleged to have ordered on their behalf. As our Supreme Court explained
in State v. Pond, 315 Conn. 451, 453, 108 A.3d 1083 (2015): ‘‘General Statutes
§ 53a-48 (a), Connecticut’s criminal conspiracy statute, provides that ‘[a]
person is guilty of conspiracy when, with intent that conduct constituting
a crime be performed, he agrees with one or more persons to engage in or
cause the performance of such conduct, and any one of them commits an
overt act in pursuance of such conspiracy . . .’ [which means that] . . .
to be convicted of conspiracy, a defendant must specifically intend that
every element of the planned offense be accomplished, even an element
that itself carries no specific intent requirement. . . . [W]e are not per-
suaded that the legislature intended to punish offenders for conspiring to
commit crimes that they never agreed or intended to commit . . . .’’ (Foot-
note omitted.) Because we are reversing the judgment on the basis of
LaFleur, however, we need not conduct a separate and complete analysis
of this issue.
3
We offer no opinion on the defendant’s statement that the state, during
closing argument, could have argued for a possible conviction of a lesser
included offense without having given the defendant notice of its intention
to do so.