State v. Lopez

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                  (AC 42146)
               DiPentima, C. J., and Lavine and Beach, Js.


Convicted, following a jury trial, of attempt to commit robbery in the first
   degree and conspiracy to commit robbery in the first degree, the defen-
   dant appealed to this court. Held that the defendant could not prevail on
   his claim that the trial court improperly admitted uncharged misconduct
   evidence regarding a separate robbery as the defendant failed to meet
   his burden of establishing harmful error: the state presented evidence
   beyond the uncharged misconduct evidence that overwhelmingly identi-
   fied the defendant, including surveillance video and eyewitness identifi-
   cation as well as physical evidence linking the defendant to the gun
   that was used in the attempted robbery and the defendant stated to the
   police that he and his accomplice had intended to commit robberies
   and were present in the store where the attempted robbery took place;
   moreover, the trial court instructed the jury several times that the
   uncharged misconduct evidence could be considered only for purposes
   of identification and a jury is presumed to follow limiting instructions
   in the absence of contrary evidence.
       Argued November 21, 2019—officially released July 14, 2020

                           Procedural History

   Amended information charging the defendant with
felony murder, 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 Fairfield and tried to the jury before Kava-
newsky, J.; verdict and judgment of guilty of attempt
to commit robbery in the first degree and conspiracy
to commit robbery in the first degree, from which the
defendant appealed to this court. Affirmed.
  Robert L. O’Brien, assigned counsel, with whom, on
the brief, was Christopher Y. Duby, assigned counsel,
for the appellant (defendant).
   C. Robert Satti, Jr., supervisory assistant state’s
attorney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Aaron Simkovitz, certified legal
intern, for the appellee (state).

   BEACH, J. The defendant, Treizy Lopez, appeals from
the judgment of conviction, following a jury trial, of
attempt to commit robbery in the first degree in viola-
tion of General Statutes §§ 53a-49 and 53a-134 (a) (2),
and conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-48 and 53a-134
(a) (2).1 On appeal, the defendant claims that the court
improperly admitted uncharged misconduct evidence
of a separate robbery. We conclude that the defendant
has not met his burden of establishing harmful error.
Accordingly, we affirm the judgment of the trial court.
   The jury reasonably could have found the following
facts. On April 11, 2015, the defendant met with his
friend, Leighton Vanderberg. They drove to Bridgeport
in a light green Ford Focus owned by Vanderberg’s wife
to ‘‘hit a stain to get some money.’’2 At approximately
3 p.m., the defendant and Vanderberg entered Sapiao’s
Grocery store in Bridgeport. The defendant went to the
counter, where Maria Salgado (Maria) was located, and
Vanderberg went to the back of the store where he
confronted Jose Salgado (Jose).3 Maria testified that
the defendant, who was wearing a black mask, pointed
a gun at her and told her not to talk or move. Meanwhile,
Vanderberg, who also had a gun, approached Jose and
demanded that he give him the $900 that Jose was
holding. Speaking in Portuguese, Jose requested that
Maria retrieve his gun located behind the counter. As
she was reaching for the gun, Vanderberg shot Jose
three times. Two bullets entered his body, one in the
neck and the other in his right upper shoulder, which
‘‘went through the muscles of the upper arm and shoul-
der area and then continued into . . . the chest where
it went into the chest cavities and [injured] the right
lung, as well as the pulmonary artery . . . and then it
continued and it injured the left lung, as well.’’ The
bullet that injured the chest and torso was fatal.4 There-
after, the defendant and Vanderberg fled the store and
drove to New Haven where they planned to commit a
second robbery at the Smokin’ Wings restaurant.5
  Officers from the Bridgeport Police Department sub-
sequently were called to the scene at Sapiao’s Grocery.
During their investigation, the police obtained video
surveillance from surrounding stores. The videos
revealed that the defendant had purchased items from
a nearby market shortly before the robbery. The videos
further showed the defendant and Vanderberg entering
Sapiao’s Grocery, fleeing, and driving away in a green
Ford Focus, which had been parked nearby.6
   The defendant also was identified by a witness who
saw the two men flee the store. She testified that ‘‘[o]ne
of [the men] was tall [with darker skin] and the other
. . . was wearing some type of mask. . . . [The man
wearing the mask] had light[er] skin. He wasn’t too
dark and he wasn’t too fair.’’ The witness further
described the lighter skinned man as having longer
black hair that went down to his neck.
   Later that day, New Haven police officers found a
gun in a trash can in New Haven. The gun was sent to
the state’s forensic laboratory for testing. The forensic
firearms examiner concluded that the bullets and bullet
fragments recovered from Jose’s body during an
autopsy matched test samples fired from the gun that
had been recovered by the New Haven police.7 The
forensic DNA examiner concluded that the defendant
was a DNA contributor to samples found on multiple
locations on the gun, including the gun’s grip, trigger,
and hammer.8
   On April 27, 2015, Bridgeport police detectives
arrested the defendant and conducted an interview,
which was video recorded, and, ultimately, shown to
the jury. During the interview, the defendant admitted
to participating in the robbery.9 The defendant further
described the type of gun that he had used during the
robbery10 and what happened to the gun after the rob-
bery.11 He also admitted to changing his physical
appearance after the day of the robbery.12 The defendant
was charged with felony murder in violation of General
Statutes §§ 53a-54c, attempt to commit robbery in the
first degree in violation of §§ 53a-49 and 53a-134 (a) (2),
and conspiracy to commit robbery in the first degree
in violation of §§ 53a-48 and 53a-134 (a) (2).
   On May 2, 2018, the defendant filed a pretrial motion
in limine seeking to preclude the state from presenting
‘‘any and all evidence regarding a robbery/shooting
investigation of a commercial establishment called
‘Smokin’ Wings’ in New Haven . . . on April 11, 2015
. . . .’’13 He argued that the evidence was irrelevant and
unduly prejudicial. The state objected to this motion.
On May 15, 2018, after conducting a hearing, the court,
Kavanewsky, J., denied the defendant’s motion, subject
to reargument, stating: ‘‘Okay, at this point, I’m going
to deny the motion to preclude. . . . [Y]ou’ve got the
Bridgeport homicide, that’s the one the defendant is
charged with participating in. Very, very close in time,
we have the Smokin’ Wings [robbery], same day, within
a matter of hours. The weapon that was used in the
Bridgeport homicide was used in the Smokin’ Wings
[robbery] and was recovered by the police, identified
to be the . . . Bridgeport homicide weapon. There’s
DNA of the defendant on this weapon.
  ‘‘In the Smokin’ Wings [robbery] there are three per-
petrators supposed to be involved, an African-American
and two either white or Hispanic.
  ‘‘Now, the state does not have to prove beyond a
reasonable doubt that the defendant participated in the
Smokin’ Wings [robbery], but yet, I think I have to keep
my eye on the ball here, and the question is, is this New
Haven Smokin’ Wings incident and the [gun] and the
. . . evidence concerning the [gun] relevant to estab-
lishing the defendant’s guilt in the Bridgeport homicide.
I think the answer is clearly it’s relevant. It tends to
prove a fact that’s in issue. It doesn’t have to be conclu-
sive but it’s relevant and I’ll consider a limiting instruc-
tion concerning what you may object to being adduced
about what happened within Smokin’ Wings but I’m not
going to just outright preclude that . . . I think all of
this is relevant to the charge of the defendant’s guilt
of the felony murder in Bridgeport . . . . I think it’s
admissible evidence.’’
  During trial, on May 23, 2018, the state proffered
evidence of the Smokin’ Wings robbery for the purposes
of establishing identity, outside the presence of the
jury. The defendant renewed his initial objection to the
admission of the evidence. The court concluded that
the evidence ‘‘should be . . . admitted for purposes
of the jury’s consideration that the defendant was a
perpetrator in the charged offense here in Bridgeport.’’
Evidence regarding the robbery at Smokin’ Wings was
then presented to the jury.
   On May 31, 2018, the defendant was convicted of
attempt to commit robbery in the first degree and con-
spiracy to commit robbery in the first degree.14 The
court sentenced the defendant to a total effective sen-
tence of thirty years of incarceration, ten years of which
were mandatory, followed by a period of special parole
for five years. This appeal followed.
  The defendant claims that the trial court improperly
admitted evidence of the separate robbery at the
Smokin’ Wings restaurant in New Haven. He argues that
(1) the evidence of the Smokin’ Wings robbery was
not relevant or material to any uncharged misconduct
exception pursuant to § 4-5 (c) of the Connecticut Code
of Evidence, (2) the prejudicial effect of evidence of
the Smokin’ Wings robbery outweighed its probative
value, and (3) the admission of this evidence was harm-
ful error.
   We have no need to consider whether the admission
of evidence of misconduct at the Smokin’ Wings restau-
rant was improper, because the evidence was emphati-
cally harmless. See State v. Osimanti, 

299 Conn. 1

18, 6. A.3d 790 (2010) (no abuse of discretion analysis
conducted when concluding that trial court’s eviden-
tiary rulings were harmless). The evidence was prof-
fered and admitted on the ground that it was relevant
to identification, that is, that it tended to show that the
defendant participated in the robbery at the Sapiao’s
Grocery. The court instructed the jurors several times
that they could consider the evidence only for the pur-
pose of identification.15
  Other evidence overwhelmingly established identifi-
cation. The jury could have found that the defendant’s
DNA was on the gun that fired the fatal bullets. Surveil-
lance video and eyewitness’ descriptive testimony con-
firmed the identification. Furthermore, the defendant
himself stated to the police and testified that he and
Vanderberg had intended to commit robberies and that
they were present in Sapiao’s Grocery.16
   The defendant claims evidential rather than constitu-
tional error; he, thus, has the burden on appeal of show-
ing harmful error. ‘‘[W]hen an improper evidentiary rul-
ing is not constitutional in nature, the defendant bears
the burden ofdemonstrating that the error was harmful.
. . . [W]e must examine the impact of the [improperly
admitted] evidence on the trier of fact and the result
of the trial. . . . [T]he proper standard for determining
whether an erroneous evidentiary ruling is harmless
should be whether the jury’s verdict was substantially
swayed by the error. . . . Accordingly, a nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict. . . . If the evidence may have had a ten-
dency to influence the judgment of the jury, it cannot
be considered harmless. . . . That determination must
be made in light of the entire record [including the
strength of the state’s case without the evidence admit-
ted in error].’’ (Internal quotation marks omitted.) State
v. LeBlanc, 

148 Conn. App. 503

, 508–509, 

84 A.3d 1242

cert. denied, 

311 Conn. 945


90 A.3d 975

   The defendant argues that because the jury returned a
split verdict, finding him not guilty of the felony murder
charge but guilty of both robbery charges, the state’s
case against him was ‘‘close’’ and, therefore, the admis-
sion of evidence of the Smokin’ Wings robbery ‘‘cannot
be said to have not substantially affected the verdict.’’
(Emphasis in original.) He argues that, ‘‘after carefully
considering the evidence, the jury refused to find that
all the elements of felony murder were proven beyond
a reasonable doubt. . . . The fact that the jury split its
verdicts after hearing [evidence of the Smokin’ Wings
robbery] and considering it to the point that it entered
at least one acquittal further shows how close this case
was.’’ According to the defendant, the purported weak-
ness in the state’s case contributed to the harmfulness
of the uncharged misconduct evidence. The defendant
does not claim that there was insufficient evidence to
support his conviction.
  To support his assertion that the jury had doubts
concerning the strength of the state’s case, the defen-
dant cites State v. Angel T., 

292 Conn. 262

, 294–95, 

973 A.2d 1207

(2009).17 In Angel T., our Supreme Court
determined that where there was no physical evidence
introduced concerning a sexual assault and the jury
twice reported to the court that it was deadlocked in
making its decision, ‘‘the state’s case was not suffi-
ciently strong so as to not be overshadowed by the
[harmful error].’’

Id., 293. The

court held: ‘‘[T]he lack
of physical evidence of sexual assault . . . rendered it
a credibility contest between the defendant and his
accusers, and the jury’s deadlock, followed by a split
verdict, leads us to believe that the state’s evidence did
not overwhelm the jury, indicating that the jury may
well have been unduly influenced by the [harmful

Id., 295. In

the present case, the jury reported to the court
that it was deadlocked regarding the charge of felony
murder. In a note to the court, the jury stated: ‘‘[T]he
jury has—I think it’s found—found consensus on charge
two [(attempted robbery)] and [charge] three [(conspir-
acy to commit robbery)] and is divided on charge one
[(felony murder)]. Jury members have indicated unwill-
ingness to change.’’ Shortly before the jury was released
for the day, the foreperson indicated that ‘‘[he] just
would prefer to have redacted the note.’’ He clarified:
‘‘I sent it out too early and I don’t really want the court
to address [it], if that makes sense. . . . I sent the note
out premature[ly] and I—I would wish to—to redact it,
to take it back and not have the court address it.’’ The
next day, the court, acknowledging the note and the
foreperson’s request, instructed the jury to continue its
deliberations. The jury then informed the court that it
had reached a consensus on all counts and delivered
its verdict.
   Although the record discloses that the jury briefly
was deadlocked as to one count, there is no indication
of deadlock as to the other two counts, or as to identity
in any event. There was strong physical evidence linking
the defendant to the gun that was used in the robbery,
as well as witness identification and the defendant’s
own admissions. The court instructed the jury to con-
sider the Smokin’ Wings evidence, if at all, only on
the issue of identification. We presume that the jury
followed the instructions of the court. See State v. Paul

315 Conn. 19

, 32, 

105 A.3d 130

(2014) (in absence
of contrary evidence, appellate courts presume jury
followed limiting instruction). A review of the evidence
in this case, therefore, shows that the evidence of identi-
fication was so strong that any error regarding the
admission of evidence concerning Smokin’ Wings was
inconsequential. The defendant has not met his burden
of showing harmful error.
      The judgment is affirmed.
      In this opinion the other judges concurred.
    The jury also found that the defendant used a firearm in the commission
of the crime of attempt to commit robbery, and his sentence was enhanced
by application of General Statutes § 53-202k.
    The defendant testified: ‘‘A stain means we’re going to commit a robbery
or just pretty much get in over on anybody. It doesn’t necessarily have to
be a robbery. It just could be something as easy as, all right, I told you I’m
going to do something for you and I got you for your money. Like, you gave
me money to do something and—I don’t know—like, you [were] going to
buy my car and you gave me the money for my car, but in return I didn’t
sell you the car. I filled out false paperwork. So, pretty much, basically, just
scam somebody for money. That could be considered a stain as well. It’s
just anything—pretty much anything to get some money that—basically,
that’s it.’’
     The Salgados owned Sapiao’s Grocery.
     The medical examiner testified: ‘‘I would say that the [bullet] that went
through the torso . . . the trunk, and the lungs, that was, clearly, a fatal
injury.’’ He further testified: ‘‘The cause of death was the gunshot wound
of the trunk.’’
     During the police interview, the defendant stated: ‘‘[W]e got back to New
Haven . . . [a]nd [Vanderberg] was planning on robbing another store.’’
     The vehicle also was identified by Augusto Cesar Manazare, who testified
that while he was waiting in his car to do laundry, he saw ‘‘[t]wo guys
running and . . . going into a [light green] car that was parked in front of
[his] . . . house.’’ Although he could not describe the men in detail, he did
identify the light green Ford Focus. Referring to the light green Ford Focus,
Manazare testified: ‘‘That was the car that was parked in front of my house.’’
     The forensic firearms examiner testified: ‘‘[A]fter a microscopic compari-
son of the two items to each other and then to test fires that the laboratory
made with this actual firearm there was agreement between the bullets from
the test fires, as well as the two evidence bullets. Enough for an examiner
to say that, yes, these were fired in this gun.’’
     In regard to the hammer, the forensic DNA examiner testified: ‘‘[The
defendant] is included as a potential contributor to the major DNA profile
from item 3-3G1, which was the hammer. And the expected frequency of
individuals who could be a contributor to this major mixture profile is less
than one in seven billion in the African-American, Caucasian, and Hispanic
population. That’s actually our laboratory ceiling. We won’t report out a
statistic higher than that. We’ve capped it at one in seven billion because
seven billion is approximately the population of the earth.’’
     The defendant stated: ‘‘So we were driving around Bridgeport and like,
you know, we just going, we just going to get a store. I’m like, but how
[are] we [going to] do it? We can’t just go in there without having a plan.
[Vanderberg’s] like, just do it. We’re just [going to] do it. You can’t think.
You think I’m [going to] be there like it’s just, I don’t even know how to
explain it like, it’s just . . . we got to the store, we got out. . . .’’
   He continued: ‘‘[Vanderberg] told me, just do it, just do it, this, that and
a third. . . . So we go in the store, we both got guns. . . . He [goes] behind
the counter, or whatever, I got the gun pointed at the lady. . . . I told her
just, don’t move, nobody is [going to] get hurt, we just want the money. So
she’s sitting there, she’s not replying to nothing at all. She’s just completely
quiet and shocked. . . .
   ‘‘So, next thing you know, the man come, he over here grabbing whatever
he grabbing, gunshots go off. After that, we run out the store. . . . I’m like,
I’m completely shocked, I don’t know what the fuck [is] going on. I’m
thinking he got [the] money, we [are about] to be good, everything, we just
about to get away. . . .
   ‘‘We got into the car and we just took off.’’
      The defendant stated: ‘‘I had a nine millimeter. . . . It was chrome.
. . . [Vanderberg had] a .38 or something.’’
      When questioned about the location of the guns that were used in the
robbery, he stated: ‘‘I gave it to [Vanderberg]. I really don’t know what he
did with them. But I’m pretty sure they’re gone.’’
      The following colloquy occurred:
   ‘‘[Detective Curet]: Your hair was different that day, right?
   ‘‘[Lieutenant Lamaine]: It was like pretty long. And you had a decent
looking beard, kind of scruffle thing going. When did you shave the head
and the beard?
   ‘‘[The Defendant]: The same day you talked to me.
   ‘‘[Lieutenant Lamaine]: That Wednesday morning, that would be the
Wednesday after the homicide.’’
      The motion did not seek to preclude the physical evidence regarding
the gun recovered by the New Haven police. During the hearing on the
motion, defense counsel stated: ‘‘I think my objection is really—it’s not the
recovery of the firearm or any subsequent testing . . . . I understand that
the court is going to allow the firearm . . . but as far as [what occurred]
inside the store, that would really be my specific objection because the
person in the store cannot tell . . . who fired the firearm . . . . I’m asking
the court to limit that testimony, more so than the actual physical recovery
of the firearm . . . because the owner . . . of that store could not say who
it was.’’
      The jury found the defendant not guilty of the felony murder charge.
      The court gave the following limiting instruction at the time the evidence
was admitted: ‘‘You may not consider the Smokin’ Wings evidence as estab-
lishing a predisposition on the part of the defendant to commit any crime
charged or to demonstrate criminal propensity. You may consider such
evidence if you believe it and further find it logically and rationally supports
the issue for which its being offered by the state, but only as it may bear
on the issue of the identity of the defendant in the Bridgeport homicide. So
you can consider this evidence of the New Haven matter if you believe it
and only for purposes of your consideration of identity of the defendant in
the Bridgeport homicide.’’
   When charging the jury, the court also stated: ‘‘The state . . . offered
[evidence of the Smokin’ Wings robbery] . . . as an alleged act of miscon-
duct of the defendant as it [may] bear upon your consideration of the identity
of the defendant as a perpetrator of the crimes charged in this case. You
may not consider such evidence as establishing a predisposition on the part
of the defendant to commit any of the crimes charged or to demonstrate a
criminal propensity. You may consider such evidence if you believe it and
further to find that it logically and rationally supports the issue for which
it is being offered by the state, but only as it may bear on the issue of
identity of the defendant in the Bridgeport matters. On the other hand, if
you do not believe such evidence, or even if you do, if you find that it does
not logically and rationally support the issue for which it is being offered
by the state—namely, the identity of the defendant—then you may not
consider such [evidence] for any other purpose.’’ We presume that the jury
followed the instructions of the court.
      The following examination transpired between the prosecutor and the
defendant at trial:
   ‘‘Q. And the store that you’re talking about, is that Sapiao’s Grocery store?
   ‘‘A. Yes. It is.
   ‘‘Q. And what happens inside the store?
   ‘‘A. I mean, I walk in the store, [Vanderberg] runs around the counter,
and the next thing you know I just hear arguing. . . .
   ‘‘Q. And what happens next?
   ‘‘A. I just heard gunshots. Like, I heard the arguing. . . . But I didn’t
necessarily hear everything. . . . [T]he main things I remember was just
give me the money or I’mma shoot you.
   ‘‘Q. Okay. So, you hear a shot and what do you do?
   ‘‘A. I froze up. I was completely in shock. . . . I didn’t know what to do.
Like, I didn’t even know what was happening. I thought the lady got shot,
but then I [saw] a man and the man was coming because I couldn’t see.
Like, I knew Vanderberg . . . was arguing with somebody, but I thought,
like—I don’t know. I just couldn’t tell who he was arguing with. I didn’t
know what was going on until after the fact when the shots went off and
there was a man in front of me. And he was, like, clutching his neck and
his chest.’’
      The defendant also cites State v. Sawyer, 

279 Conn. 331

, 359–60, 

904 A.2d 101

(2006), overruled in part on other grounds by State v. DeJesus,

288 Conn. 418


953 A.2d 45

(2008), to support the proposition that the state’s
case was not particularly strong. In Sawyer, which involved a sexual assault,
our Supreme Court held that when there is a lack of physical evidence of
the sexual assault, the state does not have a strong case and the admission
of uncharged misconduct is harmful.

Id., 359. The

present case is distinguish-
able from Sawyer. Here, there is an abundance of physical evidence linking
the defendant to the robbery as well as the defendant’s admissions. As such,
Sawyer does not apply.

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