State v. Cosby

687 A.2d 895, 44 Conn. App. 26, 1996 Conn. App. LEXIS 614
CourtConnecticut Appellate Court
DecidedDecember 31, 1996
Docket14048
StatusPublished
Cited by12 cases

This text of 687 A.2d 895 (State v. Cosby) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cosby, 687 A.2d 895, 44 Conn. App. 26, 1996 Conn. App. LEXIS 614 (Colo. Ct. App. 1996).

Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes (Rev. to 1995) § 53a-134 (a) (l)1 and assault in the first degree in violation of General Statutes (Rev. to 1995) § 53a-59 (a) (l).2 On appeal, the defendant claims that (1) the evidence was insufficient to establish his guilt of the crimes charged, (2) the trial court improperly admitted evidence and (3) the trial court improperly instructed the jury on circumstantial evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On February 27,1993, at approximately 6:20 p.m., the victim, Harold Spain, owner of Harold’s Market in Bridgeport, was in his store when he heard someone say “stick up.” Two men wearing ski masks had entered the store. One man, carrying a rifle, wore a blue mask, a blue jacket and blue denim pants. The other man was wearing a brown mask and a brown jacket. The second man proceeded to take about $300 from the cash register. The victim was ordered to lie down on the floor, and for approximately twenty minutes the two robbers searched for more money. During the search, they closed the window blinds and locked the door. The [28]*28victim was ordered to get up and lock the door. Instead, the victim ran out of the store and was shot in the left thigh.

The victim later identified the man who shot him as Tavares Cosby, the robber dressed in blue who had the rifle. Cosby, who lived in the area, had been a customer but, due to a disagreement, the victim had not allowed the defendant into the market for two or more months. Approximately two hours prior to the robbery, the victim had left the store to go to church. As he drove away, he heard someone across the street say, “I’m going to get ya.” There were fifteen to twenty men there and the victim did not see who had said it. He turned his car around and went back to the group and observed the defendant, dressed as he usually was in a blue jacket and blue denims, waving at him. The victim alleged that this was the man who later shot him. The victim had known the defendant for nine or ten years. For several years, the defendant had entered the store three or four times a day. The defendant had a “funny type figure” and “a sort of impediment with his speech.” The defendant’s posture was distinctive because he did not stand upright. The victim also recognized the defendant’s eyes through the ski mask. The victim, therefore, was able to make an in-court identification of the defendant.

I

The defendant claims that the evidence was insufficient to sustain his conviction. “ ‘When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that [29]*29the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.” (Emphasis in original.) State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994).

The jury has the opportunity to observe the conduct, demeanor and attitude of the witnesses and to gauge their credibility. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Jurors are not expected to lay aside matters of common knowledge or their own observations and experiences, but, rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. State v. Cintron, 39 Conn. App. 110, 119, 665 A.2d 95 (1995).

The defendant claims that the evidence was insufficient to convict him of the crimes charged because it [30]*30did not establish his identity as one of the robbers or as the person who had shot the victim. He argues that no facial identification was made and that the remaining alternative means of identification were unreliable and, therefore, insufficient. He also argues that there should have been a lineup with the participants wearing masks to validate the victim’s “corporeal” identification, or a “voice-up” to validate the victim’s voice identification.

For purposes of admitting any out-of-court identification, the test to be applied is reasonable probability. State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). “Absent constitutional barriers, so long as the witness has identified the defendant with reasonable probability, whether the identification is the result of a photo display, a line-up, a show-up or otherwise, the evidence is admissible.” State v. Ledbetter, 185 Conn. 607, 612, 441 A.2d 595 (1981). The defendant has no constitutional right to a lineup, nor does the state have a constitutional duty to conduct one. State v. Tatum, 219 Conn. 721, 729, 595 A.2d 322 (1991).

The victim based his identification of the defendant on the defendant’s voice, posture and eyes, and on the victim’s familiarity with the defendant. Under all of the circumstances, the identification testimony was determined to be reliable and, therefore, admissible. See State v. Hamele, 188 Conn. 372, 378, 449 A.2d 1020 (1982). We, therefore, do not agree with the defendant that to find that the defendant was one of the robbers, the jury had to resort to speculation and conjecture and to draw unwarranted inferences from the facts presented.

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Cite This Page — Counsel Stack

Bluebook (online)
687 A.2d 895, 44 Conn. App. 26, 1996 Conn. App. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cosby-connappct-1996.