STATE OF CONNECTICUT v. ADRIAN FLORES
(SC 20512)
Supreme Court of Connecticut
Argued March 28—officially released September 20, 2022
Robinson, C. J., and McDonald, D‘Auria, Mullins, Kahn, Ecker and Keller, Js.
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The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
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Syllabus
Convicted of home invasion, burglary in the first degree, attempt to commit robbery in the first degree, and conspiracy to commit home invasion, the defendant appealed to this court. The defendant and his friend, B, had agreed to steal drugs and money from the home of the defendant‘s drug dealer, D. After ingesting cocaine and acquiring various tools and supplies from B‘s workplace, the defendant and B drove to D‘s home, which they entered through the basement. The defendant and B were wearing facemasks and armed with box cutters, and B also held a machete. After they were confronted by D and other occupants of D‘s home, the defendant and B fled and were later apprehended by the police. Prior to trial, the defendant moved to suppress a written statement he made after being brought to the police station, claiming that it was inadmissible pursuant to the statute (
- The trial court correctly determined that the state had established, by a preponderance of the evidence, that the defendant‘s written statement to the police was both voluntary and reliable and, therefore, admissible under
§ 54-1o , and, accordingly, the court properly denied the defendant‘s motion to suppress:- The defendant could not prevail on his claim that the trial court‘s findings were clearly erroneous insofar as the court determined that, while the defendant was in a holding cell and without any prompting, he told a police sergeant that he wanted to give a statement: there was no evidence that the sergeant approached the defendant in his cell, as the sergeant testified that he had joined the defendant in the processing room, and this court therefore declined to rely on that subsidiary factual finding in determining whether the defendant‘s statement was voluntary; moreover, because there was at least some evidence in the record that the defendant‘s offer to make a statement was not prompted by the police, that subsidiary finding was not clearly erroneous, and, regardless of whether the statement was unprompted, it was undisputed that the defendant responded affirmatively when the police asked if he would provide a statement.
- The defendant‘s statement was voluntary insofar as he implicitly gave a knowing, voluntary waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966): the defendant responded affirmatively and without any reservations when asked whether he would provide a statement, he received two Miranda warnings before making his statement, at all times, he stated that he understood his rights and had a calm and cooperative demeanor, and the facts demonstrated, and the defendant specifically testified, that he was not coerced or threatened in any manner; moreover, the trial court specifically discredited the defendant‘s testimony that he had been cold, tired, under the influence of alcohol and narcotics, and not proficient in English at the time he made his statement, the court instead credited the police officers’ testimony that the defendant spoke and understood English and did not appear to be tired or under the influence of alcohol or drugs, and, because the defendant did not dispute the trial court‘s findings in that regard as clearly erroneous, this court would not second-guess the trial court‘s credibility determinations; furthermore, this court declined the defendant‘s request to read a requirement into
§ 54-1o that the state provide a valid explanation for its failure to record and preserve a custodial interrogation for the defendant‘s statement to be admissible, the legislature having declined to require the state to provide such an explanation in order to overcome the presumption of inadmissibility set forth in that statute. - In view of the totality of the circumstances, the defendant‘s statement was voluntary under due process principles: the record supported the trial court‘s findings, which the defendant did not claim were clearly erroneous, that he spoke and understood English at the time of the interrogation, the interrogation occurred only a few hours after the defendant‘s arrest and lasted for only about thirty minutes, and there was no evidence of physical or psychological punishment or the use of any potentially coercive interrogation methods.
- The trial court did not abuse its discretion in determining that the defendant‘s statement was reliable: the testimony of B, D, and the occupants of D‘s home corroborated the defendant‘s statement, the defendant testified that the substance of the statement was accurate, and none of the undisputed facts demonstrated that the defendant was coerced into giving a false confession.
- The defendant could not prevail on his claim that the truthfulness provisions contained in the cooperation agreement between B and the state constituted improper vouching for B‘s credibility, as a matter of both evidentiary law and prosecutorial impropriety: truthfulness provisions do not constitute impermissible vouching when they merely reveal that a witness has an obligation to testify truthfully and explain the consequences of a breach of that obligation, but such provisions constitute impermissible vouching when the prosecutor explicitly or implicitly indicates that he or she has verified the truth of the testimony presented to the fact finder, when they refer to facts not in evidence, or when they offer the prosecutor‘s personal opinion of the truthfulness of the witness’ testimony; in the present case, the provisions stating that B had a duty to “truthfully disclose” and “truthfully testify,” and that he could be charged with perjury if he lied, did not constitute impermissible vouching, as they merely stated B‘s obligation to testify truthfully and explained the consequences of his failure to do so; moreover, although the provision stating that the prosecutor would “make known to the sentencing court [in B‘s criminal case] the nature, extent, value, and truthfulness of [B‘s] information and testimony” came very close to impermissibly suggesting to the jury that the prosecutor had access to tools or information, not available to the jury, that the prosecutor would use to ensure that the witness tells the truth, nothing in the agreement suggested that the prosecutor already had verified the truth of B‘s testimony, the determination of the truthfulness of B‘s testimony was left to the jury, and the state‘s role in determining credibility under the agreement would not arise until the sentencing hearing in B‘s separate criminal case; furthermore, although it would have been better if the trial court had omitted the reference to the provision regarding what the prosecutor would have made known to the sentencing court in B‘s criminal case, this court stopped short of concluding that the trial court abused its discretion, as an evidentiary matter, in admitting it; accordingly, because the trial court did not abuse its discretion in admitting the truthfulness provisions as a matter of evidentiary law, the defendant‘s claim that the admission of the truthfulness provisions constituted prosecutorial impropriety also failed; nevertheless, this court emphasized that the state must take care in drafting cooperation agreements and that trial courts must carefully examine their language before admitting them fully into evidence, it cautioned the state not to insinuate in future cooperation agreements or in argument to the jury that it has verified testimony or that it is in a position to monitor and accurately verify a witness’ testimony, and it encouraged courts to address concerns about improper vouching in cooperation agreements by making appropriate redactions.
- The evidence was sufficient to prove beyond a reasonable doubt that the defendant committed the crimes of which he was convicted:
- The evidence was sufficient to convict the defendant of attempt to commit robbery in the first degree: contrary to the defendant‘s argument that the state had to prove beyond a reasonable doubt both that he intended to commit a larceny and that he intended to do so through the use or threatened use of force, it was well settled that the intent element of robbery relates to the commission of the larceny and not to the use or threatened use of physical force; moreover, even if the evidence was insufficient to establish that the defendant actually used or threatened the use of a box cutter, the defendant was charged and convicted of only attempt to commit robbery, and the defendant‘s conduct in asking B to procure weapons, kicking down the door to D‘s basement knowing that at least one person was home, and stating that he would do whatever it took to get money and drugs, including using force and tying up the occupants, was sufficient to establish that he took a substantial step in using or threatening to use the box cutter.
- The evidence was sufficient to convict the defendant of burglary in the first degree: the defendant conceded that, to establish the particular offense of burglary in the first degree with which he was charged, the state had to prove beyond a reasonable doubt only that he was armed with a dangerous instrument, not that he used or displayed a dangerous instrument; moreover, the jury reasonably could have found that the defendant used or attempted to use a box cutter in circumstances such that its use or attempted use was capable of causing death or serious physical injury.
- The evidence was sufficient to support the defendant‘s conviction of conspiracy to commit home invasion, predicated on his attempt to commit robbery in the first degree: because conspiracy is a specific intent crime, specific intent is required for every element of home invasion, including, in this case, the predicate felony of attempt to commit robbery in the first degree, and, although the defendant relied on his own testimony in support of his claim that he and B had agreed only to enter and commit a larceny in D‘s home and not to hurt anyone therein, the jury was not required to credit his testimony; moreover, there was sufficient other evidence, which the jury was entitled to credit, that the defendant had the specific intent to use or threaten the use of physical force against another person for the purpose of compelling that person to deliver property, including B‘s testimony that the defendant had agreed to use whatever force was necessary to force the occupants of D‘s home to comply and that he had asked B to gather the machete, box cutters, and other supplies, including zip ties and duct tape, the defendant‘s own statement to the police, in which he indicated those supplies would be used in case they needed to tie up D, and the testimony of D‘s brother that the defendant was holding a sharp object or knife when the occupants of D‘s home confronted the defendant after he forced his way into their basement.
(Two justices concurring separately in one opinion)
Argued March 28—officially released September 20, 2022
Procedural History
Substitute information charging the defendant with two counts each of the crimes of home invasion, burglary in the first degree, conspiracy to commit home invasion and conspiracy to commit burglary in the first degree, and with one count each of the crimes of attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree, brought to the Superior Court in the judicial district of Windham, where the court, Swords, J., denied the defendant‘s motion to suppress certain evidence; thereafter, the case was tried to the jury before Swords, J.; verdict of guilty; subsequently, the court vacated the verdict as to one count each of conspiracy to commit home inva-sion and conspiracy to commit robbery in the first degree, and two counts of conspiracy to commit burglary in the first degree; judgment of guilty of two counts each of home invasion and burglary in the first degree, and one count each of attempt to commit robbery in the first degree and conspiracy to commit home invasion, from which the defendant appealed to this court. Affirmed.
Alice Osedach, assigned counsel, for the appellant (defendant).
Meryl R. Gersz, deputy assistant state‘s attorney, with whom, on the brief, were Anne F. Mahoney, state‘s attorney, and Louis J. Luba, Jr., senior assistant state‘s attorney, for the appellee (state).
Opinion
D‘AURIA, J. The defendant, Adrian
Based on the evidence admitted at trial, the jury reasonably could have found the following facts. The defendant approached his friend, Bellavance, about a plan to steal drugs and money from the residence of the defendant‘s drug dealer, Daniel Bowling (Daniel). The defendant knew where Daniel lived because he previously had been to the residence to buy drugs from him. Bellavance, who was addicted to cocaine at the time, agreed to the defendant‘s plan.
On the day of the incident, December 21, 2017, the defendant and Bellavance ingested cocaine and then drove to A.J. Manufacturing, LLC, where Bellavance worked. Both men went inside and obtained two box cutters, zip ties, duct tape, two chisels, and plastic gloves. Once it was dark outside, Bellavance drove the defendant to Daniel‘s residence in Woodstock, a single-family house where he resided with his mother, Rhonda Bowling, and his father, Raymond M. Bowling, Jr. (Raymond Jr.). The defendant directed Bellavance not to park near Daniel‘s house but, rather, to park about one mile down the road. The defendant and Bellavance, who took turns holding a black duffel bag containing the items gathered at the store, then walked toward Daniel‘s house. Both men wore partial facemasks, and each had a box cutter. Bellavance also carried a machete, which he concealed in his pants, although the defendant was aware that he carried it. The men walked to the back basement door of Daniel‘s house. The defen-dant kicked in the door, and they entered the residence.
Daniel, whose bedroom was located in the basement of the house, was home with his mother and father. Daniel‘s older brother, Raymond Bowling III (Raymond III), also was at the residence visiting his family. All four family members were upstairs when they heard a loud noise from the basement. Daniel, Raymond Jr., and Raymond III ran down the basement stairs while Rhonda grabbed a kitchen knife and called 911. When Daniel, Raymond Jr., and Raymond III reached the bottom of the basement steps, they saw the defendant and Bellavance standing inside the basement with masks partially covering their faces. Bellavance was holding a machete and carrying a black duffel
Raymond III got into his vehicle and drove in the direction that the defendant and Bellavance had run until he encountered their unoccupied vehicle parked down the road. He drove back to his parents’ residence and gave the license plate number to Rhonda, who remained on the telephone with the police. He then drove back to the intruders’ unoccupied vehicle to prevent them from fleeing. Meanwhile, the defendant and Bellavance hid in the woods near their vehicle. They remained in the woods for approximately one to one and one-half hours until the police discovered them. While being taken into custody, the defendant stated that Daniel was his drug dealer. A patdown of the defendant revealed that he had a box cutter in the front pocket of his jacket. Additionally, the police found the machete and the black duffel bag containing the zip ties, duct tape, two chisels, and plastic gloves on the ground by a tree near the defendant and Bellavance. The defendant was arrested and transported to the police station, where he gave a statement to the police.
Following his arrest, the defendant was charged with two counts of home invasion, two counts of burglary in the first degree, one count of attempt to commit robbery in the first degree, and five conspiracy counts.1 After a jury trial, the defendant was found guilty on all ten counts. At sentencing, the court vacated the verdict as to four of the five conspiracy counts, leaving intact only the verdict on the count of conspiracy to commit home invasion predicated on robbery. The court sentenced the defendant to a total effective term of twenty-five years of incarceration, execution suspended after fifteen years, ten years of which was a mandatory minimum, followed by five years of probation. The defendant appealed directly to this court pursuant to
The defendant claims that the trial court improperly denied his motion to suppress his written statement to the police because the police had failed to comply with the requirements of
The following additional facts and procedural history are relevant to this claim. After the defendant was arrested and brought to the police station, he provided a written statement to the police. Prior to trial, the defendant filed a motion to suppress this statement, arguing that it was inadmissible under
In ruling on the defendant‘s motion, the trial court made the following subsidiary findings, which we quote at length: “[The defendant and Bellavance] were . . . transported to [the state police] Troop D [barracks in Danielson] and placed in individual cells at approximately 11:30 p.m. While the defendant was in his cell, Sergeant John Gregorzek . . . approached his cell and asked the defendant his name and date of birth; at that time, the defendant, unprompted, told Gregorzek that he wanted to give a statement; Gregorzek followed up by asking if the defendant would provide a statement, and the defendant responded yes, and . . . then . . . the defendant, unprompted, proceeded to give . . . a rundown of the events . . . of that night. Gregorzek then assigned Trooper Michael P. Gibson to advise the defendant of his rights. Accordingly, Gibson removed the defendant from the cell and brought him into the processing room . . . . At approximately 3:10 a.m. Gibson . . . advised the defendant, inter alia, of his right[s] to [remain] silen[t], to an attorney, and to be interviewed about the conditions of his release. State‘s exhibit 3 sets out those rights in both English and in Spanish. After Gibson read this form to the defendant, the defendant was allowed to read state‘s exhibit 3 for himself; after doing so, the defendant signed his name in the box at the bottom of the form. This entire procedure was witnessed by Gregorzek.
“The defendant told Gibson that he wanted to give a statement. Commencing at 3:20 a.m., therefore, Gibson read to the defendant state‘s exhibit 2, titled ‘Notice and Waiver of Rights.’ Gibson started by reading verbatim the top portion of the form, which advised the defendant, inter alia, of his right to remain silent, right to an attorney, right to have an attorney present during any questioning, and the right to stop answering questions at any time. The defendant told Gibson he understood these rights; he then signed the notice of rights form, and Gibson signed as a witness. Gibson then read the defendant the lower portion of the form, state‘s exhibit 3, consisting of three separate waivers of rights. These waivers included the desire to speak with the state police without consulting with an attorney or having an attorney present and the defendant‘s acknowledgment that he was waiving his rights freely, voluntarily, and without threats or promises. Gibson read each of these rights one by one, and the defendant placed his initials after each one. . . .
“After the defendant signed his waiver of rights form, Gibson then began to fill in the blanks at the top of the form, including the date, location, case number, etc. At this point, the case officer, Trooper Jana R.
“The defendant told Mazzarella what had occurred during the [incident]. Simultaneously, Mazzarella typed this information onto the statement form . . . [then] put the events in chronological order. . . . According to Mazzarella, this information was consistent with the facts reported by the residents and found by state police investigators.
“The written statement was completed at 3:48 a.m. After the statement was completed, Mazzarella read the entire statement verbatim to the defendant, including the preprinted notice at the top, which again advised the defendant, inter alia, of his right[s] to remain silent, to consult with an attorney, to have an attorney present, and to terminate questioning at any time. . . . The defendant then read his statement himself; after doing so, he signed it in Mazzarella‘s presence. . . .
“At no time during the various advisements of rights or during his interview did the defendant ask any questions about his rights or indicate that he didn‘t understand his rights. At all times, he spoke with Gibson, Gregorzek and Mazzarella in English, and he never asked for a Spanish interpreter. The defendant did not appear to be under the influence of alcohol, drugs, or any other substance, and he never indicated that he was in any way under the influence or . . . incapaci-tated. At all times, he appeared to understand and be aware of what was happening. He never indicated that he was cold or uncomfortable or injured or that he wanted to take a break or was tired. No threats or promises were made to the defendant by Gregorzek, Gibson, or Mazzarella; nor is there any evidence of physical or mental coercion being exerted against him. The defendant never asked for an attorney, never asked to stop answering questions, and never indicated that he wanted to stop talking to the state police. His demeanor was calm and cooperative throughout. . . .
“In his testimony, the defendant claimed that, in 2017, his English was not very good and that, on the night he was arrested by the police, he was under the influence of alcohol, cocaine and Percocet. He further claimed that he was confused, cold, tired, and scared when questioned by the police. Moreover, he claims that, prior to December 21, [2017], he had never heard of Miranda3 rights . . . [and] that he didn‘t understand he had the right to an attorney or the right not to talk to the police. . . .
“At the time of his arrest, the defendant was the manager of a restaurant in Putnam. At no point during the hearing before this court did the defendant use the assistance of a Spanish language interpreter, even though one was available and sitting in the courtroom. Throughout his testimony, it was obvious to the court that the defendant understands English very well. Additionally, consistent with his multiyear upbringing in California, where he undoubtedly attended public school, the defendant speaks English without any trace of an accent. The court finds that the defendant‘s claims that he was under the influence, that he was confused, tired and scared, that he didn‘t understand his right[s] to an attorney or to silence, and that his English was not good in 2017, to be not credible. The court finds Mazzarella‘s, Gibson‘s, and Gregorzek‘s testimony to be credible and adopts their versions of the events surrounding the defendant‘s advisement . . . the advisement of the defendant‘s
The court further stated: “Although the defendant‘s confession was recorded, no . . . steps were taken on December 21, [2017], to preserve the interview. Mazzarella testified [that] she was not aware on December 21, 2017, that she needed to notify a supervisor of the necessity to preserve the defendant‘s interview and that the supervisor would thereafter have preserved it. . . . Because no request to preserve the defendant‘s interview was received within thirty days, according to Mazzarella, in accordance with state police procedures, the defendant‘s interview was recorded over. Mazzarella further testified that she only discovered in October, 2018, that the confession had not been preserved.”
In light of the totality of these subsidiary facts, the trial court found by a preponderance of the evidence that (1) the state‘s failure to preserve the defendant‘s statement was not done in bad faith, intentionally, recklessly, or negligently, (2) the defendant voluntarily gave the statement, and (3) the defendant‘s statement was reliable. As a result, the trial court concluded that the state had satisfied its burden of overcoming the presumption of inadmissibility under
“[Section] 54-1o provides that, if a person suspected of one of several enumerated classes of felonies gives a statement to law enforcement as a result of a custodial interrogation at a detention facility, the statement will be presumed to be inadmissible unless officers make an audiovisual recording of the interrogation. Under subsection (h) of the statute, the state may overcome the presumption of inadmissibility in any case by proving by a preponderance of the evidence that the statement ‘was voluntarily given and is reliable, based on the totality of the circumstances.’
A
“The standard of review of a trial court‘s ruling on voluntariness in the context of the state‘s motion to admit a defendant‘s confession under
In Christopher S., we recognized that the term “voluntariness” may encompass two traditional tests: “(1) that the defendant‘s statement was taken in accordance with the requirements of Miranda, and (2) that the police did not overbear the defendant‘s will in violation of his right to due process.” Id., 273–74. We did not decide, however, whether the state must prove both due process voluntariness and compliance with Miranda because we held in that case that, even if we assumed that the state did have to prove both, the record supported the trial court‘s determination that there was no Miranda violation and that the defendant gave his statement voluntarily under the totality of the circumstances. See id., 274. In the present case, we likewise do not decide this issue. Here, too, the record supports the trial court‘s determination that there was no Miranda violation and that the defendant‘s statement was voluntarily given under the totality of the circumstances.
1
Initially, we note that the parties do not dispute most of the trial court‘s subsidiary factual findings. The defendant, however, argues that the trial court‘s findings were clearly erroneous inasmuch as there is no evidence to support the court‘s finding that, while he was in his cell, he, “unprompted, told Gregorzek that he wanted to give a statement” and, “unprompted, [he] proceeded to give . . . a rundown of the events . . . of that night.”4 The defendant contends that he never offered to give a statement “unprompted” and that, when he agreed to give a statement, he was not in his cell.
The state concedes that there is no evidence that Gregorzek approached the defendant in his holding cell. Rather, Gregorzek testified that he joined Gibson and the defendant in the processing room as Gibson read the defendant his rights. As a result, we do not rely on this subsidiary factual finding in determining whether the defendant‘s statement was voluntary. The state does not concede, however, that the trial court‘s finding that the defendant offered to give a statement to Gregorzek “unprompted” was clearly erroneous, arguing that the testimony was ambiguous as to this fact.
During the hearing on the defendant‘s motion to suppress, Gregorzek testified that he went to the processing room where Gibson and the defendant were located to ensure that Gibson read the defendant his rights. He stated that he was present while Gibson advised the defendant of his rights. The prosecutor then asked Gregorzek if there was any type of coercion of the defendant to sign the forms waiving his rights. Gregorzek responded that “the defendant was more than willing to provide a statement at that time and actually was—was the one that almost approached us to—to provide a statement. We—we asked him if he was willing to provide one, and he was more than willing at that point.” To clarify, the prosecutor asked, “based [on] what you‘re saying, he [the defendant] was the one [who] actually approached—or broached the subject—subject of giving a statement.” Gregorzek responded, “[c]orrect.” Subsequently, however, Gregorzek testified that he “asked [the defendant] if
We agree with the state that the record is ambiguous regarding whether the defendant offered to provide a statement “unprompted.” There was at least some evidence in the record to support the trial court‘s subsidiary finding that the defendant offered to give a statement unprompted and we, therefore, cannot say that this finding is clearly erroneous. Even if we do not rely on this finding in our determination regarding voluntariness, we conclude that the trial court correctly determined that the defendant‘s statement was voluntary. In so concluding, we do rely, however, on the trial court‘s undisputed finding that, when asked if he would provide a statement, the defendant responded affirmatively.
2
Regarding his Miranda rights, the defendant argues that his statement was inadmissible because he never gave a “knowing” and “voluntary” waiver of his Miranda rights. The waiver of a defendant‘s Miranda rights “must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception, and made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. . . . Despite this seemingly difficult task, [t]he prosecution . . . does not need to show that a waiver of Miranda rights was express. An implicit waiver of the right to remain silent is sufficient to admit a suspect‘s statement into evidence. . . . [When] the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused‘s uncoerced statement establishes an implied waiver of the right to remain silent. . . . [T]he state must demonstrate . . . (1) that the defendant understood his rights, and (2) that the defendant‘s course of conduct indicated that he did, in fact, waive those rights . . . .” (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Christopher S., supra, 338 Conn. 278.
The undisputed subsidiary facts show that, when the defendant was asked if he would provide a statement, he responded affirmatively without any reservations. He then received two Miranda warnings before he made his statement to the police. Additionally, after the defendant gave his statement, Mazzarella read it verbatim back to him, including the preprinted notice at the top, which again advised him of his right to remain silent, to consult with an attorney, to have an attorney present, and to terminate questioning at any time. At all times, the defendant stated that he understood his rights, and his demeanor remained calm and cooperative. Additionally, the trial court credited the testimony of Mazzarella, Gibson, and Gregorzek that the defendant spoke and understood English, did not appear tired, and did not appear under the influence of alcohol or narcotics. The subsidiary facts also show that the defendant‘s statement was not coerced. In fact, the defendant specifically testified that he was not
The defendant nevertheless argues that his statement was not voluntary because he did not have the ability to understand or to act on his constitutional rights. He relies on his own testimony at the suppression hearing that he had been cold, tired, and under the influence of alcohol and narcotics. He also highlights his testimony that his English was not good at the time of the statement and that he did not understand that he could refuse to give a statement. The defendant, however, does not dispute as clearly erroneous the trial court‘s subsidiary findings that he did not appear to be under the influence of alcohol or narcotics, that he was cooperative and calm, that he spoke English and understood what was happening, and that he never indicated that he was tired or cold. Rather, the defendant urges this court to credit his testimony, which the trial court specifically discredited, over the testimony of Gregorzek, Gibson, and Mazzarella, which the trial court specifically credited. “[I]t is not the function of this court to [second-guess] the trial court‘s reasoned credibility determinations . . . .” State v. Jones, 281 Conn. 613, 655, 916 A.2d 17 (2007).
Additionally, in arguing that his statement was not voluntary, the defendant asks this court to determine whether the state validly explained its failures to record and preserve the confession. He argues that, without this consideration, the statute is essentially toothless, given the low standard required for the state to overcome the statutory presumption.
This court has recognized that it is for the legislature, not this court, to “[weigh] and balanc[e] . . . the benefits and drawbacks of an electronic recording requirement, and to create the parameters of such a rule.” (Internal quotation marks omitted.) State v. Christopher S., supra, 338 Conn. 299. In doing so, our legislature determined that the statutory presumption of inadmissibility under
3
Regarding the defendant‘s due process rights, “any use in a criminal trial
The record in the present case simply does not support the defendant‘s claim that the interrogation violated his due process rights. Instead, the record supports the trial court‘s determination that the defendant voluntarily gave his statement to Mazzarella. Based on the trial court‘s subsidiary findings, which the defendant does not dispute as clearly erroneous on appeal, at the time of the interrogation, the defendant spoke and understood English, did not appear to the officers to be under the influence of alcohol or narcotics, and maintained a calm and cooperative demeanor. Even if the defendant did dispute the trial court‘s subsidiary finding that he understood English, the record fully supports this finding. Although the defendant was born in Mexico City, the trial court simply did not credit the defendant‘s claim that, at the time of the interrogation, he did not speak or understand English well, undermining the voluntariness of his statement. He spoke without an accent at trial and worked as a manager at a restaurant in Putnam at the time of his arrest. He had lived in San Diego in his youth before moving back to Mexico, and then, around age eighteen to twenty, lived in the United States continuously for the fourteen to sixteen years before his arrest.
Additionally, the defendant agreed to provide a statement, and was advised of his Miranda rights twice. The interrogation occurred only a few hours after his arrest and lasted for only about thirty minutes. There is no evidence of physical or psychological punishment. There also is no evidence that Mazzarella used any potentially coercive methods, such as threats, promises of leniency, or deception. Accordingly, the defendant‘s statement was voluntary under both Miranda and due process principles.
B
“[T]he reliability inquiry is evidentiary in nature. The standard that we apply in reviewing a trial court‘s evidentiary ruling depends on the context in which the ruling was made. . . . When a trial
In the present case, the defendant‘s argument that his statement was not reliable derives only from the fact that it was not recorded and preserved, as the statute requires. It is clear from the trial court‘s subsid-iary findings and the record, however, that the trial court did not abuse its discretion in determining that the defendant‘s statement was reliable. First, and most important, the defendant testified that the substance of his statement was accurate. Second, there was significant, independent evidence that corroborated the defendant‘s statement—specifically, the testimony of Bellavance and the testimony of the four victims. Moreover, as discussed, none of the undisputed subsidiary facts shows that the defendant was coerced into giving a false confession.
Accordingly, we conclude that the trial court properly found that the state established by a preponderance of the evidence that the defendant‘s statement was both voluntary and reliable and, therefore, admissible under
II
Next, the defendant claims that the trial court improperly admitted into evidence the entire cooperation agreement between Bellavance and the state. More precisely, he argues that the admission of the provisions regarding Bellavance‘s obligation to testify truthfully constituted improper vouching, both as a matter of evidentiary law and as a matter of prosecutorial impropriety. We conclude that the trial court did not abuse its discretion in admitting the challenged provisions in the present case. We emphasize, however, that the state must take care in drafting its cooperation agreements, and trial courts must carefully examine their language before admitting them fully into evidence.
In its case-in-chief, the state questioned Bellavance on direct examination regarding the fact that he had entered into a plea agreement and a cooperation agreement with the state. Specifically, Bellavance testified that, in January, 2019, he entered into a plea agreement that included a sentencing range of zero to twenty years of incarceration. According to Bellavance, at the time he entered into this plea deal, the state had not discussed entering into a cooperation agreement with him. Bellavance testified that, after entering into the plea agreement, on the advice of his counsel, he approached the state about entering into a cooperation agreement.
Bellavance ultimately entered into such a cooperation agreement, which provided in relevant part that, “at the time of sentencing the [s]tate‘s [a]ttorney‘s [o]ffice will make known to the sentencing court the nature, extent, value, and truthfulness of the witness’ information and testimony. The defendant retains the right to argue for a lesser sentence than that recommended by the [s]tate, including a sentence that includes a period of probation and/or special parole. The witness understands that the sentence to be imposed rests entirely with the sentencing court and that he cannot rescind or withdraw his
The prosecutor then sought to enter the entire cooperation agreement into evidence during his direct examination of Bellavance. Defense counsel objected, arguing that it was not relevant and that it constituted vouching because “the prosecutor is going to be making a decision about whether . . . Bellavance is telling the truth or not into whether he gets his bargain . . . .” He argued that “it‘s a little bit of a backdoor way of getting in for the state and the prosecutor to be vouching for the credibility of the witness . . . .” The trial court assumed that, in cross-examining Bellavance, defense counsel planned to attack his credibility and ruled that the cooperation agreement was “clearly relevant” to rehabilitate his credibility. The trial court asked defense counsel if he had a problem with any particular portions of the cooperation agreement. In response, defense counsel admitted that he “intend[ed] on attacking . . . Bellavance‘s credibility. That‘s going to be part of my cross-examination.” Nevertheless, he argued that he did not agree that the cooperation agreement would rehabilitate Bellavance unless there would be evidence that the prosecutor believed he was telling the truth, which would be improper. Defense counsel also requested that the trial court specifically redact the provision stating that, “at the time of sentencing the [s]tate‘s [a]ttorney‘s [o]ffice will make known to the sentencing court the nature, extent, value, and truthfulness of the witness’ information and testimony,” arguing that this showed that the state was going to decide the truthfulness of Bellavance‘s testimony. The prosecutor responded, stating that the cooperation agreement did not contain any vouching because it merely stated that it was Bellavance‘s “obligation to be truthful and that he understands that there are penalties that are related to it as far as perjury and other charges that can be filed against him if he‘s not being truthful, which is an accurate recitation of the law . . . .” The prosecutor argued that nothing in the cooperation agreement stated that Bellavance‘s testimony was in fact truthful. The trial court overruled defense counsel‘s objection and admitted the agreement in its entirety.
After the trial court admitted the agreement, Bellavance testified that the prosecutor had told him that he “[j]ust [had] to be honest and . . . tell the truth.” On cross-examination, defense counsel asked Bellavance if the prosecutor in the present case, Louis J. Luba, Jr., was “the one
The state‘s policy of committing all cooperation agreements to writing is relatively recent. In Marquez v. Commissioner of Correction, 330 Conn. 575, 198 A.3d 562 (2019), commenting on the state‘s “practice of informal, off-the-record leniency understandings with cooperating witnesses“; id., 603; this court encouraged prosecutors “to enter into a written cooperation agreement that memorializes the potential benefits that may ensue as a result of a cooperating [witness‘] testimony.” (Internal quotation marks omitted.) id., 606–607. We noted with approval the practice of some trial courts “to make a clear record of the nature of the agreement or understanding, including the anticipated charge(s) and the maximum and minimum penalties for those charges.” id., 607. These cooperation agreements would protect against prosecutors’ having “understandings“—often not with a witness, but with his counsel—whereby the state “suggest[s] . . . a favorable recommendation to the sentencing judge . . . in exchange for the witness’ testimony inculpating another defendant.” id., 603–604. Both the prosecutor (to the court and to defense counsel) and the witness (to the jury) could then “den[y] that there is any actual ‘agreement’ or ‘deal’ . . . .” id., 604. “These vague understandings can prevent defense counsel from effectively impeaching the witness for bias, perhaps leaving jurors with the impression . . . that [the witness did not have] any incentive to testify favorably for the state.” (Internal quotation marks omitted.) Id. In reality, however, “counsel operating in a courthouse in which he or she is familiar with the practices of prosecutors and presiding judges can comfortably advise the witness of the possible credit that might follow from his testimony. Thus, these ‘hypothetical’ outcomes serve as a real incentive to motivate a witness to testify for the state.” Id., 604–605; see also id., 611 (Palmer, J., concurring) (because they are really no different from cooperation agreement, “such understandings, although informal and perhaps somewhat undefined, are no less a motivating factor for a cooperating witness than a more formal cooperation agreement“).
“Left out of this equation, however, is the jury,” we noted, which is “not well versed in the nuanced vagaries of such leniency agreements. Yet, we rely on jurors to assess a witness’ credibility—including a witness’ motivation to testify—while withholding from them critical information that would help them assess just how motivated that witness might be.” Id., 604–605; see also id., 612 (Palmer, J., concurring) (“it is well known that . . . cooperating witnesses in this state invariably receive significant consideration“). To combat any misimpressions these “understandings” might leave the jury with, we noted that defense counsel might be motivated to “explore other means to reveal to the jury a
“To its credit, following our decision in Marquez, the Division of Criminal Justice voluntarily adopted a new policy, entitled ‘515 Cooperating Witnesses,’ which requires cooperation agreements to be reduced to writing.” Gomez v. Commissioner of Correction, 336 Conn. 168, 189 n.10, 243 A.3d 1163 (2020). Although the division has adopted a commendable policy, and one that we encouraged, that does not, a fortiori, make those agreements admissible in their entirety. Rather, a new concern arises when the state and a cooperating witness enter into an agreement that the state has drafted, virtually in its sole discretion, and the state then seeks to admit into evidence not only the fact of an agreement between the two, but also every word of that (at least . . . )
arguably) self-serving document. Cf. State v. Tony M., 332 Conn. 810, 829–30, 833–35, 213 A.3d 1128 (2019) (letter regarding plea negotiations written by defendant was not admissible, in part, because of concern defendant may use language framed with eye toward its self-serving use at trial).6 Moreover, at least in the present case, the state sought to enter the agreement into evidence in its case-in-chief to inoculate its own witness against impeachment even before defense counsel challenged his credibility.We note initially that the defendant raises this argument as both an evidentiary and a prosecutorial impropriety claim. Both claims are premised on the argument that the truthfulness provisions of the cooperation agreement constitute improper vouching. We will upset a trial court‘s ruling on the admissibility of evidence only upon a showing of a clear abuse of the court‘s discretion. See id., 831. Because we hold as a matter of evidentiary law that the trial court did not abuse its discretion by admitting the truthfulness provisions of the cooperation agreement, we likewise hold that no impropriety occurred. Thus, the defendant‘s claim fails both as an evidentiary and a prosecutorial impropriety matter. See State v. Taft, 306 Conn. 749, 761-62, 51 A.3d 988 (2012) (claims of prosecutorial impropriety require analysis consisting of two separate and distinct steps: “(1) whether [the impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial” (internal quotation marks omitted)).
Although Connecticut appellate courts have not previously addressed the extent to which cooperation agreements are admissible as a matter of evidentiary law, other appellate courts have. The similarity between how the
By contrast, the United States Courts of Appeals for the Second and Eleventh Circuits have held that, although cooperation agreements may be admissible if relevant, only “the impeaching aspects of cooperation agreements may be brought out in the government‘s direct examination of a witness who testifies pursuant to such an agreement.” (Internal quotation marks omitted.) United States v. Certified Environmental Services, Inc., 753 F.3d 72, 86 (2d Cir. 2014); see also United States v. Knowles, 66 F.3d 1146, 1161-62 (11th Cir. 1995), cert. denied sub nom. Wright v. United States, 517 U.S. 1149, 116 S. Ct. 1449, 134 L. Ed. 2d 568 (1996); United States v. Cruz, 805 F.2d 1464, 1479–80 (11th Cir. 1986), cert. denied, 481 U.S. 1006, 107 S. Ct. 1631, 95 L. Ed. 2d 204 (1987), and cert. denied sub nom. Thomas v. United States, 482 U.S. 930, 107 S. Ct. 3215, 96 L. Ed. 2d 702 (1987). “[I]mpeaching aspects of cooperation agreements” include “the fact of the agreement and the [witness‘] understanding of it, as a motivation for the witness to testify for the [g]overnment . . . .” (Internal quotation marks omitted.) United States v. Certified Environmental Services, Inc., supra, 86. The state, however, “may not introduce the bolstering aspects of a cooperation agreement unless and until the [witness‘] credibility has been questioned in ways that ‘open the door’ to the admission of the agreement.” Id. “This proposition stems from well established rules of evidence relating to relevance, hearsay, bias, completeness, and otherwise, that taken together, provide that absent an attack on the veracity of a witness, no evidence to bolster [the witness‘] credibility is admissible.” (Internal quotation marks omitted.) Id. Under this approach, truthfulness provisions are considered “bolstering aspects of a cooperation agreement” and, thus, are not admissible until the defendant attacks the witness’ credibility. Id., 85–86. However, it is not reversible error “if testimony on the [truth telling] provisions of a [witness‘] cooperation agreement has been improperly introduced before that [witness‘] credibility has been challenged, but the defense challenges the [witness‘] credibility later—for example, on cross-examination, or during closing arguments . . . .” United States v. Williams, 787 Fed. Appx. 8, 10 (2d Cir.), cert. denied, U.S. , 140 S. Ct. 645, 205 L. Ed. 2d 408 (2019); see also United States v. Porges, 80 Fed. Appx. 130, 132 (2d Cir. 2003). This minority approach is premised on the belief that, although cooperation agreements are “‘a double-edged sword’ “; United States v. Certified Environmental Services, Inc., supra, 85; overall, “the entire cooperation agreement bolsters more than it impeaches.” (Emphasis omitted; internal quotation marks omitted.) Id., 86. The Second Circuit, however, has recognized that this approach creates difficulties, as it is sometimes not easy to draw the line between impeaching provisions and bolstering provisions, especially during trial. For this reason, the Second Circuit has stated that, “[w]ere we writing on a blank slate, we might have followed the other circuits that avoid the distinctions we have required judges and lawyers to make during the heat of trial.” United States v. Cosentino, 844 F.2d 30, 33 n.1 (2d Cir.), cert. denied, 488 U.S. 923, 109 S. Ct. 303, 102 L. Ed. 2d 322 (1988).
Under either approach, however, truthfulness provisions contained in cooperation agreements are admissible, with the divide between circuits focused on when they are admissible—before or after the witness’ credibility is attacked. Regardless, all circuits agree that these provisions may constitute improper vouching by the state, with their admissibility hinging on the precise language of the provision. “Improper vouching may occur when the government: (1) refers to facts outside the record or implies that the veracity of a witness is supported by outside facts that are unavailable to the jury; (2) implies a guarantee of truthfulness; or (3) expresses a personal opinion about the credibility of a witness.” United States v. Benitez-Meraz, 161 F.3d 1163, 1167 (8th Cir. 1998). Under this definition, courts have explained that truthfulness provisions do not constitute impermissible vouching when they merely “reveal that the witnesses had an obligation to testify truthfully and explain the consequences of a breach of that obligation.” United States v. Bowie, 892 F.2d 1494, 1499 (10th Cir. 1990); see also United States v. Winter, 663 F.2d 1120, 1134 (1st Cir. 1981), cert.
We need not decide today whether to follow the majority or the minority of jurisdictions regarding whether the admission of the agreements and their truthfulness provisions must await an attack on the witness’ credibility because the trial court did not abuse its discretion under either approach in the present case. Before trial, defense counsel alerted the state and the trial court that he would indeed be attacking Bellavance‘s credibility
Nevertheless, the defendant argues that the trial court should not have admitted these particular truthfulness provisions contained in Bellavance‘s cooperation agreement because they implied that the state was vouching for the Bellavance‘s credibility. Two of the three truthfulness provisions at issue, however, are similar to the kind of provisions considered permissible in the federal case law discussed and cited previously—specifically, the provisions stating that Bellavance had a duty to “truthfully disclose” and “truthfully testify” and that he may be charged with perjury if he lies. Under applicable case law, these provisions do not constitute impermissible vouching because they do not refer to facts not in evidence, do not explicitly or implicitly indicate that the state has verified the accuracy of the testimony, and do not offer the prosecutor‘s personal opinion regarding the truthfulness of the testimony. Rather, these provisions merely state that Bellavance had an obligation to testify truthfully—a duty all witnesses are sworn to uphold—and explain the consequences for a breach of that obligation. We do not rule out the possibility that gratuitous references to the threat of perjury may constitute improper vouching under certain circumstances, but this concern does not arise in the present case.
One provision of the parties’ agreement in this case requires that we undertake a closer examination, however, and that trial judges do the same in future cases. That provision states: “[A]t the time of sentencing the [s]tate‘s [a]ttorney‘s [o]ffice will make known to the sentencing court the nature, extent, value, and truthfulness of the witness’ information and testimony.” (Emphasis added.) The state does not distinguish this provision from any of the other “truthfulness” provisions in the agreement, arguing only that the provisions as a whole “did no more than reveal” that Bellavance had an obligation to testify truthfully and the consequences of breaching that obligation. According to the state, the provision at issue merely “provid[ed] the jury with a full picture of Bellavance‘s agreement . . . .” “Would that it ‘twere so simple.” Hail, Caesar! (Univer-sal Pictures 2016).
To the contrary, this provision comes much closer to suggesting, “explicitly or implicitly,” that prosecutors “can monitor and accurately verify the truthfulness of the witness’ testimony.” United States v. Bowie, supra, 892 F.2d 1498. It comes very close to impermissibly suggesting to the jury that the prosecutor has access to tools or information not available to the jury that the prosecutor will use to ensure that the witness tells the truth. Such an implication is improper, even when made subtly or indirectly. Nonetheless, we recognize that this provision also can be understood to suggest that the prosecutor would be the final arbiter of truth—that is, that the prosecutor would decide the truthfulness of Bellavance‘s testimony and, then, at the time of Bellavance‘s sentencing, inform the sentencing judge whether he believed that Bellavance had been truthful, despite the fact that the
Nevertheless, we note that, if not carefully drafted by the state and addressed by the trial court, such provisions may lead a jury to infer not only that the prosecutor will monitor and ultimately verify the truthfulness of the cooperating witness’ testimony before the sentencing court, but also that, at the time of the testimony, the prosecutor believes the cooperating witness’ testimony is truthful. Ethically, of course, the state could not knowingly put on testimony it thought to be untrue; see
It is not inconsistent, however, to observe that, from the perspective of the now cooperating and testifying witness addressing his testimony to the trier, the “truth” is not the only consideration supporting the agreement. In most instances, of course, a cooperating witness either already has provided a police statement (as Bellavance did in the present case), or he or his counsel has proffered his intended testimony to the state. The state can maintain that it has bargained only for the truth and deny that the essence of the bargain supporting the agreement is that the witness testify consistent with that earlier statement or proffer. But then, as in Marquez, the jury is no better informed than when we deny that the state and the witness have an “agreement,” but only an “understanding.” Jurors are “not well versed in the nuanced vagaries of such leniency agreements. Yet, we rely on jurors to assess a witness’ credibility—including a witness’ motivation to testify—while withholding from them critical information that would help them assess just how motivated that witness might be.” Marquez v. Commissioner of Correction, supra, 330 Conn. 605. The challenge for counsel and the court is to help the jury with these nuanced vagaries.
By introducing such agreements, in whole or in part, that contain provisions that explicitly or implicitly indicate that the prosecutor can monitor and accurately verify the truthfulness of the witness’ testimony, the state invites the defendant to conduct a vigorous cross-examination, as in the present case: about the terms of the agreement, who drafted it, who would enforce it, and the witness’ motivation for entering into the agreement. It might be that, in most cases, this constitutionally
As we noted in Marquez, however, defense counsel might seek to combat any misimpressions by “explor[-ing] other means to reveal to the jury a cooperating witness’ motivation to testify” id., 606; including offering expert testimony to educate the jury about the “nuanced vagaries” of cooperation agreements. Id., 605. This approach increases the costs of litigation and can potentially reduce the case to a swearing contest between competing experts. Id., 606. A defendant also might ask a court to design a jury charge on the issue of how cooperation agreements are struck or ask a court to specifically instruct the jury that the fact that the cooperating witness entered into a cooperation agreement with the state does not ensure the credibility of the testimony. See id., 613 (Palmer J., concurring).
In the end, ensuring that any mention of a cooperation agreement—and more specifically, any mention of “truthfulness” or its equivalent in that agreement—is fairly portrayed to a jury is a task we are confident can be managed by vigilant trial judges, mindful of the circumstances and evidence at issue. We also must trust prosecutors to avoid overreaching by drafting and introducing documents loaded with self-serving terms in a manner that amounts to improper vouching. We caution the state, however, that, both in any cooperation agreement and in any argument before the jury regarding that agreement, the state must not insinate to the jury that it has verified the testimony placed before the jury or that it is in a position to monitor and accurately verify the witness’ testimony. To the extent that a cooperation agreement includes terms or provisions that constitute improper vouching, that needlessly include “[r]epeated references to the [witness‘] obligation to tell the truth“; Commonwealth v. Ciampa, 406 Mass. 257, 262, 547 N.E.2d 314 (1989); or that are otherwise gratuitous or irrelevant, including gratuitous references to the threat of perjury, trial courts can and should address these concerns by appropriate redactions.
III
Last, the defendant launches a multipronged attack on the jury‘s findings, claiming that there was insufficient evidence to prove beyond a reasonable doubt that he committed the crimes of (1) attempt to commit robbery in the first degree, (2) home invasion predicated on attempt to commit robbery in the first degree, (3) burglary in the first degree, (4) home invasion predicated on burglary in the first degree, and (5) conspiracy to commit home invasion. We disagree with each of the defendant‘s sufficiency arguments.
The evidence supporting each of the defendant‘s challenged convictions can be summarized as follows. In its case-in-chief, the state offered testimony from all four victims and Bellavance, as well as testimony regarding the defendant‘s written statement to the police. Bellavance testified that the defendant had approached him about stealing money and drugs from the defendant‘s drug dealer and that he had agreed. The defendant asked him if he could get a gun. Bellavance said no. According to Bellavance, the defendant then asked him if he could get other tools or equipment, specifically, box cutters, zip ties, a machete, gloves and duct tape. Bellavance agreed and obtained these items. Bellavance testified that he and the defendant specifically had discussed what they would do if they encountered residents
As to the incident itself, Bellavance testified that, once he had acquired all the tools and had ingested cocaine, he drove the defendant to Daniel‘s house. As they approached the house, the defendant told Bella-vance to park about one mile away. The defendant and Bellavance then walked toward Daniel‘s house, with Bellavance carrying the machete and both men taking turns carrying a black duffel bag containing the acquired tools. Upon approaching the house, they saw lights on in the front of the residence and a couple of vehicles in the driveway, and the defendant told Bellavance that one of the vehicles belonged to Daniel. Thus, the defendant and Bellavance assumed that Daniel was home. As a result, Bellavance testified, they decided to enter through the back of the house where there was a door leading to the basement. According to Bellavance, the defendant asked him to kick down the door, but he declined, so the defendant kicked it down. The two men then entered the basement with Bellavance holding the machete and duffel bag. Bellavance testified that, just as he entered Daniel‘s bedroom, he heard footsteps coming down the basement stairs. Three men came down the basement stairs and stopped in their tracks when they saw Bellavance holding the machete. Bellavance testified that one of the men asked them what they were going to do but that he and the defendant did not respond. Bellavance and the defendant then ran out of the residence and hid in the nearby woods until the police apprehended them.
Through Mazzarella, the state offered into evidence the defendant‘s written statement to the police, which was read into the record.9 The statement was consistent10 with Bellavance‘s testimony
Raymond Jr. testified that, on the night of the incident, he heard a loud bang and followed his sons down the basement stairs to see what had happened. In the basement, he saw two individuals wearing masks. He stated that one of the intruders, whom he identified as Bellavance, was holding a machete and a backpack. He testified that the other intruder, the defendant, also “appeared to have a weapon in his hand” that was “[s]ome type of knife” or “something else sharp . . . .”
Similarly, Raymond III testified that, after hearing a loud bang and running downstairs to the basement, he saw two men wearing masks. He stated that one of the men was holding a knife and, when he asked what they were going to do, the man holding the knife responded by raising it. Raymond III explained that, when he repeated his question, the men, who remained silent, ran away through the basement door. Daniel‘s testimony was consistent with the testimony of Raymond III. Additionally, Raymond III testified that he had known the defendant before the incident at issue and recognized him during the incident but could not remember his last name at that time.
The defendant testified in his own defense. He stated that he and Bellavance simply wanted to get drugs and money and had no plan to hurt or tie up anyone. Asked what he intended to do if someone was home, the defendant stated that, “if we would have known there was somebody home, we wouldn‘t go in there.” The defendant testified, contrary to Bellavance‘s testimony, that he thought no one was home because it was dark outside. He explained that he intended to use the box cutter to cut into drywall because he believed that Daniel hid his money in the power outlets. He also stated that he kept the box cutter in his pocket during the entire incident. He further testified that he did not know what was in the black duffel bag, including the zip ties. On cross-examination, however, he admitted that he previously had conceded that everything in his statement to the police was accurate.
“When reviewing a sufficiency of the evidence claim, we do not attempt to weigh the credibility of the evidence offered at trial, nor do we purport to substitute our judgment for that of the jury. . . . [W]e construe the evidence in the light most favorable to sustaining the verdict . . . [and] determine whether the jury reasonably could have concluded that the evidence established the defendant‘s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Haughwout, 339 Conn. 747, 765, 262 A.3d 791 (2021). We briefly address each of the defendant‘s insufficiency claims in turn, none of which has merit.
A
The defendant claims that there was insufficient evidence to convict him of attempt to commit robbery in the first degree11 because (1) there was no evidence that he intended to use or threaten to use
As to his specific intent, the defendant more specifically argues that the state had to prove beyond a reasonable doubt both that he intended to commit a larceny and that he intended to do so through the use or threat-ened use of force. The defendant‘s argument misconstrues the language of the relevant statutes. “[T]he specific intent required to prove an attempted robbery is no different from the specific intent required to commit a robbery . . . .” (Internal quotation marks omitted.) State v. Henderson, 173 Conn. App. 119, 133, 163 A.3d 74 (2017), aff‘d, 330 Conn. 793, 799, 201 A.3d 389 (2019). “To prove that a defendant is guilty of robbery [under
As to his actual use or threatened use of a dangerous instrument, the defendant argues that there was evidence only that he had a box cutter in his pocket during the incident at issue, and, thus, he only possessed the box cutter and did not actually use or threaten its use. Although the defendant is correct that, to be convicted of robbery in the first degree under
In the present case, there was testimony that the defendant asked Bellavance to bring weapons (first a gun and then the box cutters and machete); that he stated that would tie up and do whatever it took, including using force, to get money and drugs; that he kicked down the victims’ backdoor knowing that at least one person was home; and that he possessed a box cutter. Most important, there was testimony from Raymond Jr. that the defendant held a knife or sharp object, which the jury reasonably could have inferred to refer to the box cutter. Even if we assume that this testimony was insufficient to establish that the defendant actually used or threatened the use of the box cutter as a dangerous instrument, it was sufficient to establish that the defendant took a substantial step in using or threatening the use of the box cutter. Accordingly, there was sufficient evidence for the jury to find the defendant guilty of attempt to commit robbery in the first degree.
B
The defendant also claims that there was insufficient evidence to convict him of burglary in the first degree14 because there was no evidence that the box cutter he possessed constituted a dangerous instrument. Specifically, he argues that there was no evidence that he used or attempted to use the box cutter in circumstances that its use or threatened use was capable of causing death or serious physical
The defendant concedes that, under
In the present case, the jury reasonably could have found that, under the circumstances, the defendant used or attempted to use a box cutter, which was capable of causing death or serious physical injury, when he (1) asked Bellavance to procure weapons, including a gun, a machete, and box cutters; (2) stated that he would do whatever it took, including using force and tying up the residents, to obtain the money and drugs; (3) kicked down the backdoor of the residence at night knowing people were home; and (4) was holding the box cutter when he encountered the residence.16 Additionally, the jury was free to disbelieve the defendant‘s testimony that he did not intend to harm anyone, that he intended to use the box cutter only to cut into drywall, and that he kept the box cutter in his pocket during the course of the entire incident. See, e.g., State v. Hughes, 341 Conn. 387, 400, 267 A.3d 81 (2021). Accordingly, there was sufficient evidence that the defendant was armed with a dangerous instrument.
C
The defendant claims that there was insufficient evidence to convict him of conspiracy to commit home invasion premised on attempt to commit robbery in the first degree because the evidence showed that he and Bellavance agreed only to enter the home and to commit larceny, not to enter the home and to use or threaten the use of physical force against another person for the purpose of compelling them to deliver property. Although for attempt to commit robbery in the first degree, the state did not have to prove beyond a reasonable doubt that the defendant had the specific intent to use or threaten the use of force—only the specific intent to commit a larceny—this court has explained that “[c]onspiracy is a specific intent crime, with the intent divided into two elements: [1] the intent to agree or conspire and [2] the intent to commit the offense [that] is the object of the conspiracy. . . . Thus, [p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.”17 (Emphasis omitted; internal quotation marks omitted.) State v. Pond, 315 Conn. 451, 460, 108 A.3d 1083 (2015). As a result, specific intent is required for every element of home invasion,18 including, in
In challenging the sufficiency of the evidence from which the jury reasonably could conclude that he and Bellavance agreed to enter Daniel‘s home and to commit a larceny through the use or threatened use of physical force, the defendant relies on his own testimony that he did not intend to hurt anyone, that he and Bellavance never discussed or agreed to use force, that he did not know anyone was home, that the box cutter remained in his pocket during the incident, and that he intended to use the box cutter only to cut through drywall. The jury, of course was not required to credit his testimony. See, e.g., State v. Hughes, supra, 341 Conn. 400.
Rather, the jury was entitled to credit Bellavance‘s testimony that he and the defendant agreed to enter the house to steal money and drugs and that, if any residents resisted, the defendant would tie them up and do whatever was necessary to force them to comply. Bellavance stated that the defendant asked him to gather a machete, several box cutters, zip ties, chisels, and duct tape. Additionally, the defendant himself testified that he traveled to Daniel‘s house at night, parked approximately one mile away, walked to the house carrying a box cutter and the bag of items obtained by Bellavance, knew that Bellavance had a machete, and kicked in the basement door despite knowing at least one resident was home. The defendant admitted much of the same in his written statement to the police, including that the items in the bag would be used in case they needed to tie up Daniel. Finally, Raymond Jr. testified that the defendant was holding a sharp object or knife, which the jury reasonably could infer to have referred to the box cutter. Accordingly, there was sufficient evidence for the jury to find the defendant guilty of conspiracy to commit home invasion predicated on attempt to commit robbery in the first degree.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and MULLINS, KAHN and KELLER, Js., concurred.