STATE v. HERMAN VASQUEZ APODACA, SC 18170

Judicial District of New Britain

Criminal; Whether Pinkerton Liability Applies to Felony Murder; Whether Trial Court Improperly Excused Juror Without Cause; Whether Jury Instruction Concerning Lesser Included Offense was Proper; Whether Trial Court Adequately Responded to Jury's Request for Clarification. The defendant was convicted by a jury of first degree robbery, conspiracy to commit first degree robbery and felony murder.  On the fifth day of the trial, a juror advised the court that she was too ill to attend the proceedings that day.  Uncertain as to when the juror would be able to return and not wanting to delay the trial, the court issued an order excusing the juror.  Later that day, the juror advised that she was feeling better and could be in court that afternoon.  The court determined that she had lost her status as a juror when it excused her from the case and, as a result, she was no longer qualified to participate as a juror in the remainder of the proceedings.  On appeal, the defendant claims that the trial court improperly dismissed the juror without cause and under the mistaken premise that, under the circumstances, she could not return as a juror after the court issued its order excusing her.  The defendant also challenges the court's jury instruction on felony murder on the ground that it improperly allowed the jury to convict him under the Pinkerton theory of vicarious liability.  Under Pinkerton v. United States, 328 U.S. 640 (1946), a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.  The defendant argues that Pinkerton liability is not applicable to felony murder and that the court's instruction improperly allowed the jury to convict him of felony murder if it found that one of his coconspirators committed the underlying felony of robbery.  The defendant also challenges the court's instruction on conspiracy to commit robbery in the first degree.  The defendant argues that the instruction allowed the jury to convict him of the crime of conspiracy to commit robbery in the first degree if it found him guilty only of the lesser included offense of robbery in the third degree.  The defendant also claims that the court improperly failed to respond adequately to a request by the jury during its deliberations that the court give an instruction on conspiracy in laymen's terms.