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STATE OF CONNECTICUT v. HILBERT ROBERTS
(AC 37163)
Lavine, Keller and Bishop, Js.
Argued January 6—officially released June 23, 2015
(Appeal from Superior Court, judicial district of New
Haven, Licari, J.)
Michael Zariphes, assigned counsel, for the appel-
lant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and James G. Clark, former senior
assistant state’s attorney, for the appellee (state).
Opinion
BISHOP, J. After a jury trial in the New Haven judicial
district, the defendant, Hilbert Roberts, was convicted
of murder in violation of General Statutes § 53a-54a,
felony murder in violation of General Statutes § 53a-
54c, robbery in the first degree in violation of General
Statutes § 53a-134 (a) (2), criminal possession of a fire-
arm in violation of General Statutes § 53a-217 (a) (1),
and carrying a pistol without a permit in violation of
General Statutes § 29-35. As a consequence, he was
sentenced to sixty-five years imprisonment.1 The defen-
dant appeals from the judgment of conviction, claiming
that (1) the trial court incorrectly denied his motion
for a judgment of acquittal and motion for a new trial,
as the evidence was insufficient to convict him; (2) his
due process rights at trial were violated by prosecutorial
impropriety during closing argument; and (3) the court
incorrectly merged his conviction of felony murder with
his murder conviction at sentencing in order to avoid a
double jeopardy violation instead of vacating the lesser
conviction of felony murder.2 We affirm in part and
reverse in part the judgment of the trial court.
At trial, the jury reasonably could have found the
following facts: On April 17, 2005, at approximately 2
p.m., the defendant was driving a black Acura in the
vicinity of the intersections of South Genesee and East
Ramsdell streets in New Haven.3 Earlier in the day, the
owner of the Acura, Jared Buice, had rented it to the
defendant as part of a drug transaction. As the defen-
dant was driving this Acura on South Genesee Street,
the victim, Elijah Stovall, was standing in front of his
East Ramsdell Street residence, talking with James
Duarte, who is the victim’s cousin, and Raymond James.
The defendant stopped the Acura near the victim,
Duarte, and James, got out of the car, and approached
the threesome and asked them if ‘‘there [was] weed
out here.’’ When Duarte replied in the negative, the
defendant brandished a .22 caliber handgun and pointed
it at Duarte, and grabbed a chain from Duarte’s neck.
At that juncture, the victim started to back away from
the confrontation, and the defendant, while grabbing
Duarte’s shirt, fired several gunshots at the victim after
which he ran back to the Acura and drove away.
Shortly thereafter, the police were called and arrived
to find the victim collapsed on the ground. He was later
pronounced dead from gunshot wounds. During their
investigation, the police interviewed several individu-
als, including James Porter, who testified at trial. He
stated that he had been driving a taxicab near the scene
at the time of the shooting and that, after he dropped
off a fare, he observed a group of people and then heard
gunshots, after which the group dispersed. At this time,
he saw a man wearing a fitted cap and a do-rag, carrying
what Porter took to be a gun. Porter saw this individual
run to a black Acura, get into the driver’s side and drive
away from the scene. Porter was able to identify the
Acura that Buice had rented to the defendant as the
car he saw on the day in question. After a police investi-
gation, which included interviews with witnesses at
the scene and forensic evidence, the defendant was
arrested on May 7, 2005. Following a jury trial, the
defendant was convicted of murder, felony murder, rob-
bery in the first degree, criminal possession of a firearm,
and carrying a pistol without a permit and sentenced
to sixty-five years imprisonment. This appeal followed.
We first turn to the defendant’s claim that the court
improperly denied his motion for a judgment of acquit-
tal and motion for a new trial on the basis of his claim
that the evidence was insufficient to prove he was the
perpetrator of any of the crimes with which he was
charged. This claim borders on frivolous and merits a
terse response.
We begin by setting forth our standard of review for
sufficiency of the evidence claims. ‘‘The standard of
review 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 upon the facts so construed and
the inferences reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . .
‘‘Questions of whether to believe or to disbelieve a
competent witness are beyond our review. As a
reviewing court, we may not retry the case or pass on
the credibility of witnesses. . . . Our review of factual
determinations is limited to whether those findings are
clearly erroneous. . . . We must defer to the [finder]
of fact’s assessment of the credibility of the witnesses
that is made on the basis of its firsthand observation
of their conduct, demeanor and attitude.’’ (Internal quo-
tation marks omitted.) State v. Moody, 121 Conn. App.
207, 217–19, 994 A.2d 702, cert. denied, 297 Conn. 920,
996 A.2d 1193 (2010).
Here, the defendant appears to acknowledge that the
testimony of Duarte, if credited, was adequate to prove
his guilt, but the defendant argues that Duarte was
not credible. Indeed, the record reveals that Duarte
identified the defendant as the shooter with fulsome
testimony concerning the defendant’s behavior before
and during the incident, accompanied by the unwaver-
ing and repeated identification of the defendant as the
perpetrator. Whether Duarte should have been believed
was for the jury to decide. And to this task, it responded
with a verdict of guilty. We will not retry credibility
on appeal.
The defendant next claims that he was deprived of
his due process right to a fair trial by prosecutorial
impropriety during closing argument to the jury. During
his argument to the jury, the prosecutor stated: ‘‘Who’s
the only person identified as being involved in every
stage of this crime? [The defendant]. Who does [Duarte]
watch shoot his cousin from just inches away? Right
here, still holding onto his shirt. Okay. Looking right at
him. Has to push the hand down to get away himself
while he’s shooting that gun into the side and back of
his cousin. Who’s the only person who rents a car that
is the car—I mean, everybody agrees this black Acura
that belongs to Mr. Buice is the car involved. Who rented
this car? [The defendant] rented this car. Who drove
the car? It makes sense, you rent it, you drive it, right?
. . . But who’s driving the car? Who’s got the keys?
Who rented it and kept it over three hours, beyond their
three hours? [The defendant]. He’s right there. He’s the
driver of the car. He gets out of the car. James Duarte
tells you that. Taneisha Swindell [a passenger in the
Acura] tells you that. She’s vague about what [Labian
McKnight, another passenger in the Acura] did, but she’s
not vague about whether [the defendant] got out of the
car. And who gets back into the car? Who’s the only
person seen running back into the car by James Duarte?
The driver, [the defendant]. He’s the only one. The only
person connected through here. Now, your job as jurors
is never an easy job because it’s a serious decision that
you’ve got to make. But these facts that you have before
you in two pretty brief days of testimony should make
that job easier than it sometimes . . . is. This evidence
is overwhelming that [the defendant] committed this
crime. And there is nobody in this case to suggest that
anybody else did it.’’
The defendant claims that the prosecutor’s statement
to the jury contained assertions not supported by the
evidence. Specifically, the defendant claims that the
prosecutor was arguing facts not in evidence in stating
that Duarte saw the defendant shoot the victim, that
Duarte pushed the shooter’s hand aside, and that Duarte
also saw the defendant run back to the driver’s seat of
the car. The defendant claims, as well, that the prosecu-
tor improperly asserted that the vehicle involved in the
incident was the Acura rented by the defendant from
Buice, where, the defendant claims, the state adduced
no physical evidence that Buice’s Acura was involved.
In response to this claim, the state asserts that the
prosecutor’s comments, in the main, find support in the
evidence and that one statement regarding Duarte’s
observation of the defendant running from the scene
to the driver’s seat of the car was merely an inadvertent
misstatement. We agree with the state.
We begin by setting forth the legal principles and
standard of review that guide our analysis. ‘‘The stan-
dard of review governing claims of prosecutorial impro-
priety is well established. In analyzing claims of
prosecutorial impropriety, we engage in a two step ana-
lytical process. . . . The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . [If] a
defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is
on the defendant to show . . . that the remarks were
improper . . . .
‘‘Because the claimed prosecutorial improprieties
occurred during closing arguments, we advance the
following legal principles. [P]rosecutorial [impropriety]
of a constitutional magnitude can occur in the course
of closing arguments. . . . In determining whether
such [an impropriety] has occurred, the reviewing court
must give due deference to the fact that [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from.’’ (Citations omitted; internal quotation marks
omitted.) State v. Chase, 154 Conn. App. 337, 341–43,
107 A.3d 460 (2014), cert. denied, 315 Conn. 925, 109
A.3d 922 (2015).
Finally, we note that the defendant failed to object
at trial to the remarks that form the basis of his appeal.
‘‘[O]ur Supreme Court has explained that a defendant’s
failure to object at trial to each of the occurrences that
he now raises as instances of prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of
his claims. . . . This does not mean, however, that the
absence of an objection at trial does not play a signifi-
cant role in the determination of whether the challenged
statements were, in fact, improper. . . . To the con-
trary, we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time.’’ (Internal
quotation marks omitted.) Id., 343–44.
As to the statement made by the prosecutor that
Duarte looked at the shooter and pushed his hand aside
while gunshots were being fired, the record reveals that
Duarte testified that he saw the defendant as he alighted
from Buice’s Acura. He described the shooter, picked
him out of a photographic array, and identified him at
trial as the defendant. Again, contrary to the defendant’s
claim, the record reveals that Duarte observed the
defendant close at hand in the moments leading up
to the shooting and while it was taking place. These
comments are adequately supported by the record. As
to the presence of Buice’s Acura at the scene, the state
asserts that this claim is supported by the evidence as
well. To be sure, the record reveals that the identity of
this particular vehicle at the crime scene was not a
contested issue at trial. Therefore, the prosecutor’s
comment relating to Buice’s Acura at the scene was
reasonably based on inferences made from trial tes-
timony.
Finally, the state acknowledges that the prosecutor
incorrectly identified Duarte as the person who saw
the defendant run from the scene. The state argues,
nevertheless, that this statement was merely an inadver-
tent misidentification of the witness who testified to
seeing a person wearing a fitted cap and do-rag and
carrying a gun while running from the scene to Buice’s
Acura and driving away. The state points to testimony
from another witness, Porter, who gave this testimony,
not Duarte. Additionally, the state adduced testimony
from another witness, Swindell, a passenger in Buice’s
Acura at the time of the accident, that the defendant
was wearing a do-rag and driving Buice’s Acura at the
time. Therefore, as argued by the state, the prosecutor
did not make a claim unfounded in the evidence, but
simply misidentified the witness who provided this tes-
timony. Not every mistake by a prosecutor in closing
argument, not every misstep, amounts to an impropri-
ety. The substance of the comment, that the defendant
was observed running from the scene, gun in hand, then
driving away in Buice’s Acura, finds complete support
in the evidence. Even if we assume, arguendo, that the
prosecutor’s misstatement was improper, there is no
reasonable likelihood that this one misstatement influ-
enced the jury or prejudiced the defendant. See State
v. Williams, 81 Conn. App. 1, 15, 838 A.2d 214
(‘‘[a]lthough the prosecutor misspoke concerning the
defendant’s testimony, when the isolated comment is
read in context, it is clear that the jury reasonably would
understand to what the prosecutor was referring’’), cert.
denied, 268 Conn. 904, 845 A.2d 409 (2004). On the basis
of the foregoing, we conclude that the prosecutor’s
remarks during closing argument did not deprive the
defendant of his right to a fair trial.
The defendant’s last claim is that the court, faced
with a guilty verdict as to both felony murder and mur-
der, should have vacated the lesser charge and should
not have merged the conviction on those counts.
Indeed, the record reflects that at the time of sentenc-
ing, the court merged the felony murder conviction into
the conviction of murder and sentenced the defendant
on the murder conviction. This panel’s response to this
claim is governed by a previous decision of this court
in State v. Miranda, 145 Conn. App. 494, 75 A.3d 742,
cert. granted, 310 Conn. 942, 79 A.3d 894 (2013); see
also State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013).
There, a panel of this court determined that the rule of
vacatur applicable to double jeopardy claims should
apply to a cumulative conviction of multiple crimes that
are based on a single act. State v. Miranda, supra,
506. In light of this court’s holding in Miranda, we are
constrained to agree with the defendant that the court
should have vacated the felony murder conviction and
sentenced the defendant on the murder conviction.
Because the intention of the sentencing judge here is
clear; see footnote 1 of this opinion; a remand to the
trial court for resentencing is not necessary. See State
v. Miranda, supra, 508.
The judgment is reversed only as to the conviction
of felony murder and the case is remanded with direc-
tion to vacate that conviction. The judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
The court merged the conviction of murder under count one and felony
murder under count two, and sentenced the defendant on this conviction
and the remaining counts. Specifically, he was sentenced as follows: in
count one, a term of imprisonment of sixty years for the crime of murder;
in count three, a term of imprisonment of twenty years for the crime of
robbery in the first degree, to be served concurrently to count one; in
count four, a term of imprisonment of five years for the crime of criminal
possession of a firearm, to be served consecutively to counts one and three;
in count five, a term of imprisonment of five years for the crime of carrying
a pistol without a permit, to be served concurrently with count four and
consecutively to counts one and three. The total effective sentence imposed
was, therefore, sixty-five years.
2
In his brief, the defendant also asserted a claim regarding the court’s
instructions to the jury on the subject of transferred intent. At oral argument
before this court, the defendant withdrew this claim.
3
With the defendant in the Acura were passengers Labian Knight, William
McDuffy, and Taneisha Swindell.