******************************************************

The ‘‘officially released’’ date that appears near the

beginning of each opinion is the date the opinion will

be published in the Connecticut Law Journal or the

date it was released as a slip opinion. The operative

date for the beginning of all time periods for filing

postopinion motions and petitions for certification is

the ‘‘officially released’’ date appearing in the opinion.

In no event will any such motions be accepted before

the ‘‘officially released’’ date.

All opinions are subject to modification and technical

correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the

event of discrepancies between the electronic version

of an opinion and the print version appearing in the

Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the

latest print version is to be considered authoritative.

The syllabus and procedural history accompanying

the opinion as it appears on the Commission on Official

Legal Publications Electronic Bulletin Board Service

and 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.

******************************************************
STATE OF CONNECTICUT v. JACQUES LOUIS

(AC 35703)

Lavine, Keller and Pellegrino, Js.

Argued November 30, 2015—officially released February 9, 2016

(Appeal from Superior Court, judicial district of

Fairfield, Thim, J.)

Alan Jay Black, assigned counsel, for the appellant

(defendant).

Adam E. Mattei, assistant state’s attorney, with

whom, on the brief, were John C. Smriga, state’s attorney, and Joseph P. Harry, senior assistant state’s attorney, for the appellee (state).
Opinion

LAVINE, J. The defendant, Jacques Louis, appeals

from the judgment of conviction, rendered after a jury

trial, of one count of conspiracy to commit robbery in

the first degree with a deadly weapon in violation of

General Statutes §§ 53a-48 (a)1 and 53a-134 (a) (2)2 and

one count of conspiracy to commit robbery in the second degree in violation of § 53a-48 and General Statutes

(Rev. to 2011) § 53a-135 (a) (1).3 On appeal, the defendant claims that the trial court improperly (1) denied

his motions for judgment of acquittal and (2) charged

the jury with respect to conspiracy in violation of State

v. Pond, 315 Conn. 451, 108 A.3d 1083 (2015), and that

(3) the prosecutor denied him a fair trial by arguing

facts not in evidence. We affirm the judgment of the

trial court.

The jury reasonably could have found the following

facts. On December 28, 2011, at approximately 8:15

p.m., the defendant, Jean Barjon, Tinesse Tilus, and

Guailletemps Jean-Philippe (conspirators) together

entered the Caribbean-American Market (market) on

Wood Avenue in Bridgeport. They called for the owner,

Rene Adolph, who was in the kitchen cooking, to come

out. Adolph recognized Tilus and Barjon, but not the

defendant and Jean-Philippe, who stood on either side

of him. The conspirators demanded money from

Adolph, and Jean-Philippe displayed a firearm. Adolph,

fearing for his life, ran from the market to the laundry

next door and called out for help. The defendant, Barjon, and Tilus chased Adolph, who held the door to the

laundry closed as the defendant attempted to open it.

Margarita Avcolt, a laundry employee, observed the

activity, and telephoned the police. She saw one man

trying to open the door and two others standing a

‘‘meter’’ away.

Meanwhile, Jean-Philippe, who had remained in the

market, walked into the walled-in area occupied by the

cashier, Ramon Tavares. Jean-Philippe displayed his

gun and ordered Tavares to give him money. Jean-Philippe took the money Tavares gave him, as well as his

phone.

Back at the laundry, Adolph saw a police cruiser

passing by so he ran out and flagged down Officer

Elizabeth Santoro. The three conspirators, who had

followed Adolph to the laundry, ran and got into a car.

Adolph pointed to the three conspirators in the car,

who were getting ready to ‘‘take off.’’ Adolph told Santoro that the men had tried to rob him. He also pointed

to Jean-Philippe who by that time was running away

from the market on Wood Avenue. Adolph saw him

‘‘toss the gun.’’ Santoro was able to detain Jean-Philippe,

and told Barjon, the driver of the car not to move.

Tilus and the defendant were passengers in the car.

According to Santoro, all of the conspirators were
dressed in suits as if they were going somewhere.

Officer Christopher Martin arrived on the scene as

backup for Santoro. Martin seized $635 from Jean-Philippe and found a loaded, operable firearm that JeanPhilippe had discarded near a trash receptacle. A firearms expert, Marshall Robinson, examined the gun that

Martin recovered and the casings it ejected when fired.

As part of his investigation, Robinson learned that the

gun had been used to fire cartridges in an incident in

New Jersey. Both the defendant and Jean-Philippe were

from New Jersey.

The defendant and Barjon were each charged with

robbery in the first degree, conspiracy to commit robbery in the first degree, robbery in the second degree,

and conspiracy to commit robbery in the second degree

and stood trial together. The defendant’s theory of

defense was that he was ‘‘merely present’’ at the time

of the robbery and that Adolph’s testimony was not

believable. Barjon also claimed that he merely was present at the time of the robbery, that Adolph was not

credible, and that Jean-Philippe acted alone in order to

collect an unpaid debt from Adolph, who allegedly ran

an illegal lottery from the market.4

The jury was unable to reach a unanimous verdict

with respect to the charges ofrobbery in the first degree

and robbery in the second degree against the defendant,5 but the jury found him guilty of conspiracy to

commit robbery in the first and second degree. At sentencing, the court merged the conspiracy convictions

and sentenced the defendant to twelve years in prison,

suspended after six years, and five years of probation.

I

The defendant claims that the court violated his right

to due process by denying his (1) motion for a judgment

of acquittal at the close of the state’s case and (2)

motion for judgment of acquittal notwithstanding the

jury’s verdict. He claims that there is no evidence that

he was present in the market where the robbery

occurred, and therefore, the court should not have permitted the case to go to the jury. He also argues that

there is no evidence that he agreed to rob Adolph and

that he intended to commit robbery in either the first

or second degree, specifically to display or threaten the

use of a deadly weapon in the case of conspiracy to

commit robbery in the second degree.6 We do not agree.

The following additional procedural history is relevant to the defendant’s claim. After the state rested,

the defense counsel, Charles Kurmay, moved for a judgment of acquittal, claiming that there was insufficient

evidence that the defendant was present when JeanPhilippe took money from Tavares and no evidence

that the defendant agreed to commit a robbery. The

court denied the motion stating that Adolph’s testimony

alone was sufficient for the jury to find the defendant
guilty.7 The defendant elected not to present any

evidence.

The jury found the defendant guilty of conspiracy to

commit robbery in the first and in the second degree.

Prior to sentencing, the defendant filed a ‘‘motion for

judgment of acquittal after mistrial’’ on the charge of

robbery in the first degree on the ground of insufficient

evidence. He also sought a judgment of acquittal notwithstanding the verdict on the ground that there was

insufficient evidence to find him guilty of conspiracy

to commit robbery in the first degree. The court denied

the motion.8

‘‘The due process clause of the fourteenth amendment to the United States constitution protects a criminal defendant from conviction absent proof beyond a

reasonable doubt of each fact necessary to constitute

the elements of the crime. . . . Because a jury may

occasionally convict even when it can be said that no

rational trier of fact could find guilty beyond a reasonable doubt, a defendant is entitled to challenge his conviction on that basis with a motion for a judgment of

acquittal.’’ (Citation omitted; internal quotation marks

omitted.) State v. Watts, 71 Conn. App. 27, 31, 800 A.2d

619 (2002).

‘‘The standard ofreview we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction,

we apply a two-part test. First, we construe the evidence

in the light most favorable to sustaining the verdict.

Second, we determine whether on the facts so construed and the inferences reasonably drawn therefrom

the [finder of fact] reasonably could have concluded

that the cumulative force of the evidence established

guilt beyond a reasonable doubt.’’ (Internal quotation

marks omitted.) State v. Martin, 285 Conn. 135, 147,

939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133,

172 L. Ed. 2d 101, after remand, 110 Conn. App. 171,

954 A.2d 256 (2008), appeal dismissed, 295 Conn. 192,

989 A.2d 1072 (2010).

‘‘[T]he inquiry into whether the record evidence

would support a finding of guilt beyond a reasonable

doubt does not require a court to ask itself whether it

believes that the evidence . . . established guilt

beyond a reasonable doubt. . . . Instead, the relevant

question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.’’ (Internal quotation marks omitted.) State v. Watts, supra, 71 Conn.

App. 31. In ruling on a motion for judgment of acquittal,

the trial court must determine whether a rational trier

of fact could find guilt proven beyond a reasonable

doubt. See State v. Delarosa, 16 Conn. App. 18, 33, 547

A.2d 47 (1988).
The defendant argues that no one ever identified him

as having been present at the scene of the robbery in

the market. Adolph, however, testified that four men

entered the market. He knew Barjon and Tilus, and he

identified Jean-Philippe as the man with the gun. He

also testified that there was a fourth man, whom he

did not know, who stood beside him in the market and

that this unknown person chased him to the laundry and

tried to pull open the door. When he stopped Santoro,

Adolph pointed to Jean-Philippe, who was walking

away from the market, and told the officer that he had

a gun and had just robbed him. He also told her that

the men in the white car in front of the market also

had robbed him. Santoro saw three men in the white

car. The defendant was a passenger in the car; Barjon

was the driver. On appeal, he claims that it is not clear

whether he sat in the car during the robbery or got

into the car sometime later. He argues that the jury,

therefore, had to resort to speculation.

We disagree that no one identified the defendant as

a participant in the robbery. According to Adolph, four

men entered the market. He recognized two of them,

but did not recognize the two men who stood next to

him. One of those men had a gun. Barjon and the

unknown man without a gun chased him as he ran from

the market. At Adolph’s direction, Santoro arrested the

four men because Adolph stated that they had robbed

him. At the time she detained them, three of the men

were sitting in a white car in front of the market, and

Jean-Philippe was running away. At trial, in response

to a question from Barjon’s counsel, Matthew Couloute,

Santoro testified that the first time she saw Barjon and

the defendant, they were in the white car. Santoro also

testified that all four of the men were dressed in suits

as if they were going to a club. She also testified that the

defendant was sitting at counsel table next to Barjon.9

The jury also heard testimony from Tavares, the market cashier. According to Tavares, one man with a black

gun ordered him to open the glass partition, to stand

facing the wall, and to give him the money. Avcolt

testified that Adolph ran into the laundry calling for

help. Adolph held the door shut while one person whom

Avcolt did not recognize tried to open the door to the

laundry. The person trying to open the door was not

Barjon. She saw two other men standing approximately

a meter away from the door while this occurred.

On the basis of the evidence presented, the jury reasonably could have found beyond a reasonable doubt

that the defendant was the fourth man to enter the

market. Adolph identified two of the men who entered

the market by name and there is no dispute that JeanPhilippe was the man with the gun. Given Santoro’s

testimony that she arrested three men in the car, two

of whom were identified by Adolph, by process of elimination, the jury reasonably could have found that the
defendant was the fourth man who robbed the market.

Common sense does not take flight at the courthouse

door. See, e.g., State v. Zayas, 195 Conn. 611, 620, 490

A.2d 68 (1985).

The defendant also claims that the court improperly

permitted the case to go to the jury because the jury had

to resort to speculation and conjecture as to whether he

conspired to participate in the robbery. See State v.

Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986) (jury

may not speculate or resort to conjecture). He argues

that the fact that he was in the car and arrested with

Barjon and Tilus is insufficient to prove beyond a reasonable doubt that he conspired to rob the market. He

contends that there is no evidence that he agreed with

anyone to participate in the robbery let alone that he

agreed to every element of the crime of robbery in the

first or second degree, i.e., that a deadly weapon would

be used or displayed.10 The defendant relies on our

Supreme Court’s decision in State v. Pond, supra, 315

Conn. 451, for the proposition that the state must prove

specific intent to agree to commit the subject crime.

‘‘To establish the crime of conspiracy under [§] 53a48 of the General Statutes, the state must show that

there was an agreement between two or more persons

to engage in conduct constituting a crime and that the

agreement was followed by an overt act in furtherance

of the conspiracy by any one of the conspirators. The

state must also show intent on the part of the accused

that conduct constituting a crime be performed.’’(Internal quotation marks omitted.) State v. Delarosa, supra,

16 Conn. App. 33.

Our Supreme Court has explained that § 53a-48

‘‘[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 which

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.’’ (Emphasis in the original; internal quotation marks omitted.) State v. Pond,

supra, 315 Conn. 460. ‘‘[T]o sustain a conviction for

conspiracy to commit a particular offense the [state]

must show not only that the conspirators intended to

agree but also that they intended to commit the elements of the offense.’’(Emphasis in the original; internal

quotation marks omitted.) Id., 461.

‘‘To establish a violation of § 53a-48 (a), the state must

prove that the three essential elements are satisfied: (1)

the accused intended that conduct constituting a crime

would be performed; (2) the accused formed an

agreement with one or more persons to engage in such

conduct; and (3) any one of the coconspirators performed some overt act in furtherance of the conspiracy.

. . . Conspiracy, then 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 which is the object of the conspiracy.’’ (Citation

omitted; internal quotation marks omitted.) Id., 467–68.

‘‘The state must also show intent on the part of the

accused that conduct constituting a crime be performed. . . . The existence of a formal agreement

between the parties need not be proved; it is sufficient

to show that they are knowingly engaged in a mutual

plan to do a forbidden act. . . . Because of the secret

nature of conspiracies, a conviction usually is based on

circumstantial evidence. . . . Consequently, it is not

necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the

words we have an agreement. . . . [T]he requisite

agreement or confederation may be inferred from proof

of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the

commission of these acts.’’ (Citations omitted; internal

quotation marks omitted.) State v. Taft, 306 Conn. 749,

756–57, 51 A.3d 988 (2012). Ourlaw does not distinguish

between direct and circumstantial evidence with regard

to probative force. See State v. Crump, 201 Conn. 489,

495, 518 A.2d 378 (1986).

In the present case, the offenses that are the object

of the conspiracy are robbery in the first degree in

violation of § 53a-134 (a) (2) and robbery in the second

degree in violation of § 53a-135 (a) (1). The burden on

the state, therefore, was to prove beyond a reasonable

doubt that one of the conspirators was armed with a

deadly weapon during the course of the robbery or

immediate flight therefrom; see General Statutes § 53a134 (a) (2); and that he was aided by another person

actually present. See General Statutes (Rev. to 2011)

§ 53a-135 (a) (1).

On the basis of the testimony given by Adolph and

Santoro, the jury reasonably could have concluded that

the defendant entered the market with three men who

intended to commit a robbery therein. Adolph knew

Barjon and Tilus, who were customers. He did not know

orrecognize the defendant or Jean-Philippe.After entering the market, the conspirators surrounded Adolph

with the defendant and Jean-Philippe standing on either

side of him. Jean-Philippe displayed a black gun and

demanded that Adolph give him money. The defendant

did notflee when Jean-Philippe displayed the gun. When

Adolph fled from the market to the laundry, the defendant followed him and attempted to open the laundry

door, which Adolph was holding shut. The gun that was

used in the robbery was traced to a crime that had

occurred in New Jersey, where Jean-Philippe and the

defendant were from. There is no dispute that JeanPhilippe took money and a phone by force from

Tavares.

‘‘[I]t is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural
consequences of his voluntary conduct.’’ State v. Montanez, 219 Conn. 16, 20, 592 A.2d 149 (1991). In the

present case, the defendant aided the coconspirators

by entering the market and standing beside Adolph

when Jean-Philippe displayed a gun and ordered Adolph

to give him money. ‘‘The fact that the defendant stood

by silently when a gun was displayed in order to [force

the victim to give up his property] . . . is evidence

from which the jury might reasonably have inferred

the defendant’s acquiescence in [an] enlarged criminal

enterprise.’’ State v. Crosswell, 223 Conn. 243, 256, 612

A.2d 1174 (1992). We therefore conclude that there was

sufficient evidence by which the jury reasonably could

have found that the defendant agreed with three others

to enter the market and to threaten the use of physical

force to compel Adolph to give them money and that

Jean-Philippe would be armed with a deadly weapon.

The trial court, therefore, properly denied the defendant’s motions for judgment of acquittal.

II

The defendant’s second claim is that the court failed

to give the jury a conspiracy instruction that complied

with State v. Pond, supra, 315 Conn. 451. The state

claims that the defendant’s claim is not reviewable

because the defendant failed to (1) preserve it at trial,11

(2) comply with Practice Book § 67-4 (d) (2), or (3)

adequately brief the claim. We agree that the defendant

failed to preserve the claim at trial, but we will review

it pursuant to State v. Golding, 213 Conn. 233, 239–40,

567 A.2d 823 (1989), because the court’s charge is contained in the record and a claim of instructional error

as to an essential element of a crime may violate the

defendant’s due process rights to a fair trial. See State v.

Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995). We disagree,

however, that the alleged constitutional violation

exists.

‘‘When reviewing [a] challenged jury instruction . . .

we must adhere to the well settled rule that a charge

to the jury is to be considered in its entirety, read as

a whole, and judged by its total effect rather than by

its individual component parts. . . . [T]he test of a

court’s charge is not whether it is as accurate upon

legal principles as the opinions of a court of last resort

but whether it fairly presents the case to the jury in

such a way that injustice is not done to either party

under the established rules of law. . . . As long as [the

instructions] are correct in law, adapted to the issues

and sufficient for the guidance of the jury . . . we will

not view the instructions as improper.’’ (Internal quotation marks omitted.) State v. Ortiz, 71 Conn. App. 865,

872, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d

1136 (2002).

On the basis of our review of the court’s charge to

the jury, we disagree that the court’s charge is not in

accordance with the legal principles articulated in
Pond. The more fundamental problem with the defendant’s claim is that it is predicated upon the crime at

issue in Pond, conspiracy to commit robbery in the

second degree in violation of General Statutes (Rev. to

2007) § 53a-135 (a) (2) (‘‘displays or threatens the use

of . . . a deadly weapon or a dangerous instrument’’).

The defendant in the present case was charged with

conspiracy to commit robbery in the second degree

in violation of a different statutory provision, namely,

General Statutes (Rev. to 2011) § 53a-135 (a) (1) (‘‘he

is aided by another person actually present’’).

On appeal, the defendant takes issue with the following portion of the court’s charge: ‘‘The state must further

prove that the conspirators understood that a deadly

weapon would be carried by one of the participants.

The state need not prove a formal or express agreement.

The state may rely upon circumstantial evidence, if

sufficient, to prove this element beyond a reasonable

doubt.’’

The law regarding conspiracy is well known. ‘‘To

establish the crime of conspiracy under § 53a-48 . . .

the state must show that there was an agreement

between two or more persons to engage in conduct

constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy

by any one of the conspirators. The state must also

show intent on the part of the accused that conduct

constituting a crime be performed. The existence of

a formal agreement between the parties need not be

proved; it is sufficient to show that they are knowingly

engaged in a mutual plan to do a forbidden act.’’ (Internal quotation marks omitted.) State v. Millan, 290 Conn.

816, 825–26, 966 A.2d 699 (2009). ‘‘[T]he requisite

agreement or confederation may be inferred from proof

of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the

commission of those acts.’’ (Internal quotation marks

omitted.) Id., 826. Furthermore, ‘‘[a] coconspirator’s

conduct at the scene can provide the requisite evidence

of an agreement.’’ Id., 828.

The defendant also claims that the court failed to

instruct the jury that he had the specific intent that the

robbery would involve the display or threatened use of

what the defendant represented to be a deadly weapon

or dangerous instrument. In support of his claim the

defendant relies on the following language from State

v. Pond, supra, 315 Conn. 451. ‘‘[T]he trial court should

have instructed the jury that, to find the defendant guilty

of conspiracy to commit robbery in the second degree

in violation of §§ 53a-135 (a) (2) and 53a-48 (a), it had

to find that the defendant specifically intended that the

robbery would have involved the display or threatened

use of what [the other conspirator] represented to be

a deadly weapon or dangerous instrument.’’ Id., 466.

Although the Supreme Court held that the trial court
must instruct the jury that a defendant had the intent

to conspire to commit the crime that is the object of

the conspiracy, the language quoted by the defendant is

inapplicable to the present case because the defendant

here was not charged with violation of § 53a-135 (a)

(2). He was charged with conspiracy to commit burglary

in the second degree in violation of § 53a-135 (a) (1).

Our review of the transcript reveals that the court

charged the jury with respect to robbery in the first

degree and robbery in the second degree. After each

of those instructions, the court gave the respective

charge as to conspiracy to commit the charged robbery

offenses, which we summarize in relevant part. ‘‘To

convict a defendant of conspiracy to commit robbery

in the first degree, the state must prove three essential

elements. First, an agreement between the defendant

and one or more persons to engage in the crime of

robbery in the first degree. Second, an overt act in

furtherance of the subject of the agreement to commit

robbery in the first degree committed by one of those

persons who was a member of the conspiracy; and

third, proof that the defendant acted with the intent to

commit robbery in the first degree, and the crime of

robbery in the first degree requires an intent to permanently steal property from a person.

‘‘As to the first element, an agreement, the state must

prove that the defendant whose conduct you’re examining, came to an understanding with at least one other

person to take property from Rene Adolph under circumstances that amounted to robbery in the first

degree, that is, taking property by threat or force. The

state must prove further that there was an understanding that force would be used to force someone to give

up property. The state must further prove that the conspirators understood that a deadly weapon would be

carried by one of the participants. The state need not

prove a formal or express agreement. The state may

rely upon circumstantial evidence, if sufficient, to prove

this element beyond a reasonable doubt.’’ (Emphasis

added.)

‘‘To convict a defendant of conspiracy to commit

robbery in the second degree, the state must prove

three essential elements. First, the state must prove an

agreement between the defendant whose conduct you

are considering and one or more persons to engage in

conduct that amounted to robbery in the second degree.

Second, an overt act in furtherance of the agreement

must be proven. An overt act by one or more of the

participants, one or more members of the conspiracy;

and third, proof that the defendant whose conduct you

are considering acted with intent to permanently

deprive Mr. Adolph of his property. So you must focus

upon each defendant individually and decide whether

the essential elements have been proven as to that

defendant.
‘‘As to the first element, an agreement, the state must

prove that the defendant came to an understanding with

at least one other person to take property from Rene

Adolph under circumstances that amounted to robbery

in the second degree. The state must prove there was an

understanding that the person who took the property

would be aided by another person actually present.’’

(Emphasis added.)

After reviewing the charges against the defendant

and the court’s instruction to the jury, we conclude that

the court properly instructed the jury with respect to

the conspiracy charges lodged against the defendant in

conformity with State v. Pond, supra, 315 Conn. 454.

The court instructed the jury with respect to robbery

in the first degree that the state had to prove that the

‘‘coconspirators understood a deadly weapon would be

carried by one of the participants,’’ and with respect

to robbery in the second degree that there was ‘‘an

understanding that the person who took the property

would be aided by another person actually present.’’

The instructions given by the court properly guided the

jury to consider the issues before it. The defendant’s

claim of instructional error, therefore, fails.

III

The defendant also claims that he was denied the

right to due process by the prosecutor, who allegedly

argued facts not in evidence during his rebuttal argument. We disagree that the prosecutor’s rebuttal argument was improper.

The defendant’s analysis of this claim verges on insufficient, as he refers only to the following portion of the

transcript of the prosecutor’s rebuttal argument:

‘‘[The Prosecutor]: This isn’t TV, this didn’t come with

a script, there’s no commercials. Why didn’t the officers

do DNA? Why didn’t the officers do fingerprints? Why

didn’t the officers—why didn’t they? Ask yourselves,

why should they. They had the eyewitness, they had

another eyewitness, and they had a third eyewitness

on scene. These four individuals, two seated in this

courtroom today, came in and robbed him.

‘‘[Attorney Kurmay]: Objection. That mischaracterizes the testimony. They never said this man came in

and robbed anyone.

‘‘The Court: The jury will find what the facts are. This

is just argument at this time.’’

The standard for review of claims of prosecutorial

impropriety is well known. ‘‘[T]he touchstone of due

process analysis in cases of alleged prosecutorial

[impropriety] is the fairness of the trial, and not the

culpability of the prosecutor. . . . The issue is whether

the prosecutor’s conduct so infected the trial with

unfairness as to make the resulting conviction a denial

of due process. . . . [T]he burden is on the defendant
to show, not only that the remarks were improper, but

also that, considered in light of the whole trial, the

improprieties were so egregious that they amounted to

a denial of due process. . . .

‘‘[I]n analyzing claims of prosecutorial [impropriety],

we engage in a two step analytical process. The two

steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that

[impropriety] deprived a defendant of his due process

right to a fair trial.’’ (Citations omitted; internal quotation marks omitted.) State v. Campbell, 149 Conn. App.

405, 434–35, 88 A.3d 1258, cert. denied, 312 Conn. 907,

93 A.3d 157 (2014).

In its brief, the state directed us to the substance of

the prosecutor’s initial closing argument, as well as that

of defense counsel. Initially, the prosecutor marshaled

the evidence by which the jury reasonably could infer

that the defendant, Barjon, Tilus, and Jean-Philippe conspired to and robbed Adolph. Thereafter Barjon’s counsel, Couloute, argued stating in part: ‘‘Did a robbery

occur? Yes. Can counsel prove [Jean-Philippe] robbed

the store? Absolutely. Is there any evidence that this

man [Barjon] was involved in that? Outside of conflicting testimony, there isn’t. Do you find the person guilty

based on conflicting testimony, that someone who you

know lied, to actually even have these people arrested?

That’s what they’re asking you to do, and that’s what

I mean when I say everybody has to do their job.’’

Kurmay then argued on behalf of the defendant,

claiming that the defendant was on trial because an

hysterical man who had just been robbed rushed to

identify the perpetrator and his ‘‘allegation’’ was ‘‘compounded by poor police work.’’ Kurmay continued:

‘‘When we talk about the identification, let’s talk about

this. It deserves some serious attention. No eyewitness,

not one, got up there and said [the defendant] came in

the store and robbed anybody, not Mr. Adolph, the man

whose store it was. [Adolph] came in here and said I

don’t recognize him. I recognize one of them, [Barjon],

but he doesn’t recognize [the defendant], has no idea

who he is.

‘‘Then you have Mr. Travares. Mr. Tavares comes in

and says . . . I don’t know. I don’t know who he is. I

was robbed by a man with long hair, but then you hear

Officer Santoro come in, and she gives a description

of Mr. [Jean-Philippe], the guilty party, the man that

actually did rob someone, as having long hair . . . .’’

He further argued that Avcolt testified that there was

only one man at the door of the laundry. Kurmay also

criticized the quality of the police investigation. ‘‘There

are no fingerprints on that gun they were able to lift

or that they even tried to lift. . . . This is like making

a medical decision without any diagnostic testing, like

having no MRI, no CT scan, no nothing. In this case,

there’s no fingerprint, there’s no DNA, there’s no hair
evidence. Lord knows he’s got plenty of hair. If there

was this big struggle, why didn’t they find any? But they

never tried.’’

The defendant’s claim on appeal as to the prosecutor’s rebuttal argument was that the prosecutor mischaracterized the evidence that the defendant

participated in the robbery at the market. On the basis

of our review of the record, we conclude that the portion of the argument to which the defendant objects

was not improper. Adolph and Santoro testified that

there were four men involved in the robbery. Adolph

and Avcolt testified that they did not recognize or know

one of the men who did not have the gun. Adolph told

Santos three of the men who had tried to rob him had

gotten into a car and were ready to take off. Santoro

identified the man sitting next to Barjon as one of the

men in the white car whom she arrested. As the trial

court pointed out, the facts were to be determined by

the jury.12 In its general instructions, the court charged

the jury that it was its recollection of the facts that

controlled, not the facts that counsel may have argued.

The jury is presumed to have followed the instructions

of the court absent a clear indication to the contrary.

See State v. Raguseo, 225 Conn. 114, 131, 622 A.2d 529

(1993). The defendant’s claim of prosecutorial impropriety therefore fails.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy

when, with intent that conduct constituting a crime be performed, he agrees

with one or more persons to engage in or cause the performance of such

conduct, and any one of them commits an overt act in pursuance of such conspiracy.’’

2 General Statutes § 53a-134 (a) provides in relevant part: ‘‘A person is

guilty of robbery in the first degree when, in the course of the commission

of the crime of robbery as defined in section 53a-133 or of immediate flight

therefrom, he or another participant in the crime . . . (2) is armed with a

deadly weapon . . . .’’

General Statutes § 53a-133 provides: ‘‘A person commits robbery when,

in the course of committing a larceny, he uses or threatens the immediate

use of physical force upon another person for the purpose of: (1) Preventing

or overcoming resistance to the taking of the property or to the retention

thereof immediately after the taking; or (2) compelling the owner of such

property or another person to deliver up the property or to engage in other

conduct which aids in the commission of the larceny.’’

3 General Statutes (Rev. to 2011) § 53a-135 (a) provides in relevant part:

‘‘A person is guilty ofrobbery in the second degree when he commits robbery

as defined in section 53a-133 and (1) he is aided by another person actually

present . . . .’’ See footnote 2 of this opinion.

Hereinafter, all references to § 53a-135 are to the 2011 revision of the

statute unless otherwise indicated.

4 The jury found Barjon guilty of all four charges against him. In a separate

trial, a jury found Tilus guilty of robbery in the first degree. See State v.

Tilus, 157 Conn. App. 453, 117 A.3d 920, cert. granted, 317 Conn. 915, 117

A.3d 854 (2015). Prior to the defendant’s trial, Jean-Philippe pleaded guilty

to both robbery in the first degree and conspiracy to commit robbery in

the first degree.

5 At the time the defendant was sentenced, the state entered a nolle

prosequi with respect to the two robbery charges.

6 The defendant was charged with conspiracy to commit robbery in the

second degree in violation of §§ 53a-48 and 53a-135 (a) (1). To be found

guilty of robbery in the second degree in violation of § 53a-135 (a) (1), a
defendant need not display or threaten the use of a deadly weapon. See

footnote 3 of this opinion.

The defendant’s claim appears to be founded on the elements of subdivision (2) of General Statutes (Rev. to 2011) § 53a-135 (a) which provides: ‘‘in

the course ofthe commission ofthe crime or ofimmediate flight therefrom he

or another participant in the crime displays or threatens the use of what

he represents by his words or conduct to be a deadly weapon or a dangerous

instrument.’’ The defendant was not charged with the crime of conspiracy

to commit robbery in the second degree in violation of § 53a-135 (a) (2).

7 The court denied the motion for a judgment of acquittal stating: ‘‘Just

relying upon [Adolph’s] testimony alone, there’s sufficient evidence that

points out that four people came in the store, three surrounded him, one

pulled out a gun and went to the cashier and stole the money, and all four

were stopped shortly, within minutes thereafter, out in front by the police

and one of the four had just thrown a gun next to the garbage can. There’s

sufficient evidence for the jury to consider, therefore, the defense motions

are denied.’’

8 The court ruled on the motion for judgment of acquittal notwithstanding

the verdict stating: ‘‘[The defendant] was one of four persons who entered

a market to collect a debt by force. One of the four persons, not [the

defendant], but another person, possessed a handgun and displayed the

handgun as he took money by force from one of the persons in the market.

The witnesses testified all four were inside the market and participated in

the robbery. When the police officer passed by, three of the robbers were

sitting in a car outside. It does not follow that all three of those persons

were sitting outside all the time. The evidence was to the contrary. Now,

the gunman, who has been sentenced, was from New Jersey. This man [the

defendant] happens to be from New Jersey. I would conclude from that,

that they were friends and came together.’’

9 Santoro also testified as follows on cross-examination by Kurmay, the

defendant’s counsel:

‘‘[Attorney Kurmay]: You never saw [the defendant] outside the car on

Sherwood Avenue; is that correct?

‘‘[The Witness]: That’s correct.

‘‘[Attorney Kurmay]: The only place you saw him was in the back of the

car; is that true?

‘‘[The Witness]: Yes, sir.

‘‘[Attorney Kurmay]: And where was he seated inside the car?

‘‘[The Witness]: I don’t remember.

‘‘[Attorney Kurmay]: You don’t remember. Do you remember who was

driving the car; do you remember?

‘‘[The Witness]: Barjon.

‘‘[Attorney Kurmay]: So [the defendant] was not the driver, correct?

‘‘[The Witness]: Which one is [the defendant]?

‘‘[Attorney Kurmay]: The one sitting next to . . . Barjon.

‘‘[The Witness]: Right. No, not the driver.’’

10 Again we note that neither conspiracy to commit robbery in the first

or second degree contains the element of ‘‘the use of a deadly weapon.’’

See footnote 3 of this opinion.

11 The state correctly notes that the defendant did not object to the court’s

proposed conspiracy charge and did not take an exception to that portion

of the charge after it was given.

Practice Book § 67-4 (d) (2) provides in relevant part: ‘‘When error is

claimed in the charge to the jury, the brief or appendix shall include a

verbatim statement of all relevant portions of the charge and all relevant

exceptions to the charge. . . .’’ The state included the relevant portion of

the court’s charge in the appendix to its brief.

12 Our review of the final arguments reveals that all counsel objected

repeatedly to the characterization of the evidence by all opposing counsel.

The court repeatedly stated that the facts were to be determined by the jury.