author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JERMANO C. FLOWERS
    (AC 20578)
    (AC 20579)
    Lavery, C. J., and Bishop and Daly, Js.
    Argued January 17
    officially released April 9, 2002

      David V. DeRosa, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Jermano C. Flowers, appeals from the judgments of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), interfering with an officer in violation of General Statutes § 53a-167a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant claims that the court deprived him of his constitutional right to a fair trial by (1) failing to conduct an adequate voir dire, (2) precluding him from offering alibi witness testimony and (3) improperly instructing the jury. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On the evening of September 18, 1998, Jordan Welch returned after work to his home in West Haven. A block party was in progress at a neighbor’s house. Welch visited the party briefly, returned to his front porch and watched the nearby festivities while drinking beer in the company of his eleven year old son.

Within minutes, Welch saw a neighbor known to him as “Junkie Jay” emerge from the alley next to his house. Junkie Jay proceeded up the steps of Welch’s porch while glancing to his side. Following Junkie Jay’s eyes, Welch observed the defendant and his codefendant at trial, Teddy Salmond, standing together about ten feet away near the front of his porch. As Junkie Jay ascended the steps, he drew a silver or chrome handgun, pointed the gun at Welch and ordered him to surrender his gold chain and religious medallion. Welch told his son, who was standing in the doorway, to go into the house and close the door. Junkie Jay then snatched the chain and medallion from Welch’s neck and departed down the steps.

Welch pursued Junkie Jay, but was accosted at the bottom of the steps by the defendant and Salmond. The two men grabbed Welch from the side and pulled him toward the alley. Both men, each wielding a black handgun, beat Welch about the head and attempted to rifle his pockets while Junkie Jay stood by and watched. The arrival of a police officer, Anthony Pacileo, caused Junkie Jay, the defendant and Salmond to flee.

Welch, who was bleeding from a head wound, described his three assailants to Pacileo. When backup officers arrived, they walked with Welch to the party site and surveyed the crowd. There, Welch identified Salmond, who was taken into police custody. A search of Salmond and the immediate area failed to produce the stolen articles or any weapons. Neither Junkie Jay nor the defendant was found that evening, and Welch never recovered the stolen medallion and chain.

The following morning, Welch was on his front porch when he observed the defendant’s brother, Stephen Flowers, drive up in a vehicle and park it outside the Flowers residence adjacent to Welch’s home. Both men made gestures toward each other and began to brawl on the sidewalk. During the fight, Stephen Flowers brandished a black handgun, and Welch retreated inside his home. Welch’s wife, who had observed the fracas from inside the residence, called the police.

The police arrived at the scene shortly thereafter, and Flowers’ mother consented to a search of the Flowers residence, where Stephen Flowers was apprehended. During the search, Officer Sean Faughnan was detailed to secure the rear yard, which was separated from the Welch yard by a fence. At one point, Faughnan looked through the slats of the fence and saw the defendant and another man cross the Welch yard and proceed toward the Welch residence. As the men approached the house, Faughnan observed the defendant withdraw a handgun from his waistband. Faughnan drew his own weapon, opened a gate in the fence and confronted both men from a distance of three to five feet. The defendant placed the handgun on the ground and the two men fled the area.

After securing the gun left by the defendant, Faughnan gave chase, directed, in part, by observant neighbors. Faughnan later discovered and apprehended the defendant, who kicked and spat at the officer while Faughnan was trying to secure him. The defendant subsequently was arrested and charged in connection with the robbery.

The court granted the state’s motion to try the defendant and Salmond together. The jury found the defendant guilty of robbery in the first degree, carrying a pistol without a permit and interfering with an officer. The court sentenced the defendant to twenty-three years incarceration, execution suspended after nineteen years, and four years probation. This appeal followed.

I

The defendant first claims that the court improperly deprived him of his constitutional right to a fair trial when it failed to question adequately several prospective jurors who may have observed him in shackles. The defendant seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

During jury selection, a clerk informed the court that she had noticed several panel members seated in the second row of the jury box “looking down” in the direction of the defendant’s shackles. The clerk also stated that she thought she heard one of the panel members mention the shackles while the group was waiting in the hallway outside her office during individual voir dire.

Thereafter, the court suspended individual voir dire, ordered the shackles removed from the defendant and interviewed the clerk on the record. The court asked the clerk to identify the panel members involved and then examined each member to determine whether any had seen anything unusual about the physical appearance or attire of either defendant in the courtroom. The court also asked if any panel member had overheard other members make comments about the defendants. The court did not specifically ask the panel members if they had observed the defendant in shackles. Each person who was examined denied observing anything out of the ordinary or overhearing comments about the defendants.

At the end of each interview, the court gave an instruction on the presumption of innocence and the burden of proof in criminal cases. The court also gave counsel for both parties an opportunity to ask their own questions, but counsel declined. When all of the designated panel members had been questioned, the court advised counsel: “You’re more than free at any time during the voir dire process to bring this up and ... if you wish me to make any further individual inquiry, I’ll do that. But you’re at liberty during the voir dire to bring up anything that you feel is pertinent to that issue . . . .” Defense counsel indicated that the court should address the issue with each of the remaining panel members, and the court agreed to do so.

When individual voir dire resumed, the court asked each of the panel members not originally identified by the clerk if he or she had overheard comments about either defendant. None had. Subsequently, one of the group of five prospective jurors originally examined by the court was selected, without objection, as an alternate juror and, ultimately, as a juror.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) Id. “The first two requirements involve a determination of whether the claim is reviewable; the second two requirements involve a determination of whether the defendant may prevail.” State v. Woods, 250 Conn. 807, 815, 740 A.2d 371 (1999).

We conclude that the record is adequate for review and that the claim is of constitutional magnitude alleging the violation of a fundamental right. The defendant can not prevail under the third prong of Golding, however, because he has not established that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

“In order for a criminal defendant to enjoy the maximum benefit of the presumption of innocence, our courts should make every reasonable effort to present the defendant before the jury in a manner that does not suggest, expressly or impliedly, that he or she is a dangerous character whose guilt is a foregone conclusion. . . . The negative connotations of restraints, nevertheless, are without significance unless the fact of the restraints comes to the attention of the jury.” (Citations omitted.) State v. Tweedy, 219 Conn. 489, 508, 594 A.2d 906 (1991). “The defendant bears the burden of showing that he has suffered prejudice by establishing a factual record demonstrating that the members of the jury knew of the restraints.” State v. Webb, 238 Conn. 389, 455, 680 A.2d 147 (1996).

Here, the defendant has failed to establish a factual record showing that the members of the jury knew of his restraints. Although the clerk testified that the panel members seated in the second row of the jury box may have observed the defendant wearing shackles and that she thought a panel member had mentioned the shackles while standing in the hallway outside her office, a third party’s mere assertion that one or more prospective jurors may have seen the defendant in shackles does not constitute evidence that they did, in fact, observe him in shackles.

Moreover, the defendant cannot fault the court for failing to question the jurors more closely when he had the opportunity to do so himself. Our Supreme Court’s reasoning in State v. Webb, supra, 238 Conn. 389, in which a similar claim was considered and rejected, is instructive. The defendant in Webb also was restrained in the courtroom by shackles. Id., 453. During a court recess while jury voir dire was being conducted, he was taken to a secure holding area adjacent to the courtroom. Id. Two of the sheriffs accompanying the defendant later reported to the court that they saw one or two prospective jurors pass by a door with a glass window through which they might have observed the defendant being placed in the holding room. Id. The court subsequently questioned members of the venire panel individually to determine if they had seen the defendant through the window or had overheard any discussions concerning the case among other panel members. Id. The court reminded the parties that they would have the opportunity during individual voir dire to ask additional questions concerning the incident. Id., 454. On appeal, the defendant claimed that because the court had failed to ask the venirepersons more specific questions regarding their observations, he was denied his right to a fair trial. Id.

The Webb court noted that the defendant had not argued that any prospective juror actually saw him in shackles, but only that it was possible a juror might have seen him in shackles. Id., 455. The court then rejected the defendant’s claim that he was unfairly prejudiced by the trial court’s failure to conduct a more extensive interrogation of panel members because “the defendant was provided with a full opportunity during voir dire examination to ask each venireperson the very question that he now faults the trial court for failing to ask.” Id., 455-56. The same reasoning is applicable here, where the defendant also argues that he may have been observed in the courtroom wearing shackles. The court provided counsel with ample opportunity to question each prospective juror regarding his or her possible observation of the defendant in shackles, but counsel expressly declined the court’s invitation.

Accordingly, the defendant has not demonstrated that a constitutional violation clearly exists that clearly deprived him of a fair trial, and his claim must fail under the third prong of Golding. State v. Golding, supra, 213 Conn. 239-40.

II

The defendant next claims that the court violated his state constitutional right to compulsoiy process and his federal constitutional sixth amendment rights by precluding him from calling alibi witnesses without first considering a less onerous sanction for noncompliance with discovery rules. The defendant again seeks review of his unpreserved claim under State v. Golding, supra, 213 Conn. 239-40.

On February 25, 1999, the state’s attorney filed a motion pursuant to Practice Book § 40-21 demanding that the defendant give notice of his intent, if any, to present an alibi defense at trial. The defendant did not respond. On October 27, 1999, a jury selection day, the court asked the defendant’s counsel to respond to the state’s motion. Counsel indicated that he had received new information relating to a possible alibi defense, and he asked the court if he could have until the end of the day to disclose, in writing, information pertaining to such a defense. In response, the court indicated that given the imminence of trial and the passage of time since the state’s motion demanding notice of an alibi defense, counsel should be in a position to make an oral representation as to whether he intended to call any alibi witnesses, to be followed by a written disclosure at the end of the day. Counsel indicated that he had no alibi witnesses. The court then informed counsel that he would be precluded from offering an alibi defense at trial. Counsel neither objected nor took exception to the court’s pretrial ruling. At trial, the defendant did not seek to offer any alibi testimony.

We conclude that the defendant’s unpreserved claim must fail under the second prong of Golding because it does not implicate a constitutional right. “A trial court’s authority to preclude alibi witnesses for failure to comply with the discovery rules does not violate the defendant’s constitutional rights. State v. Boucino, 199 Conn. 207, 213-14, 506 A.2d 125 (1986) (preclusion of alibi witnesses is not per se violation of defendant’s right to compulsory process). The decision to preclude alibi witnesses is left to the sound discretion of the trial court.” State v. McIntyre, 242 Conn. 318, 330-31, 669 A.2d 911 (1997). We therefore decline to review the defendant’s unpreserved claim.

Ill

The defendant’s final claim is that the court deprived him of his constitutional right to a fair trial by improperly instructing the jury. The defendant claims that the court (1) failed to instruct the jury on all of the essential elements of the offense of robbery in the first degree, (2) improperly commented that the defendant had utilized a dangerous weapon in the course of the robbery and (3) failed to charge that the defendant, as an accessory, may have had an intent different from that of the principal and may have been culpable of a lesser included offense. We address each of those claims in turn.

A

The defendant claims that the court’s instruction on robbery was fatally defective because it did not include the statutory definition oflarceny. The defendant seeks review of his unpreserved claim under State v. Golding, supra, 213 Conn. 239-40.

The court instructed the juiy as follows with respect to the robbery charge: “Now, robbeiy in the first degree, the first alternate charge, is robbery in the first degree, § 53a-134 (a) (2). The defendants here are charged in the first degree in violation of § 53a-134 (a) (2) of the Penal Code, which provides as follows: a person is guilty of robbeiy in the first degree when, in the course of the commission of the crime as defined in § 53a-133, and I’ll give you that definition, or in the immediate flight therefrom, he or another participant in the crime, is armed with a deadly weapon.

* * *

“Here is the definition of a robbery, ladies and gentlemen: A person commits robbery, when in the course of committing a larceny, that is a theft, the taking away of the property of another person, 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 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. That’s the definition of a robbery. So, basically, it’s the taking of property, which is the larceny, and you must determine that there was taking, and in this case, in robbery in the first degree by force or by use of a deadly weapon.” The court later instructed that the state was required to prove beyond a reasonable doubt every element of robbery in the first degree “as I define that term for you.” The court did not charge the jury on larceny.

There is no evidence in the record that the defendant filed a request to charge concerning the essential elements of robbery. The defendant also took no exception to the court’s failure to include in its definition of robbery the essential elements of larceny.

“In a criminal case, the state must prove, and the trial court must instruct the jury on, each essential element of the crime charged. ... A trial court’s failure to instruct on any of these elements warrants reversal regardless of whether the defendant objected at trial. ... It cannot be considered harmless error for a jury to find an accused guilty without even knowing what are the essential elements of the crimes charged. . . . Put another way, the failure to instruct a jury on an essential element of a crime charged is error because it deprives the defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are. . . . After all, when [the defendant] exercised his constitutional right to a jury, he put the [state] to the burden of proving the elements of the crimes charged to a jury’s satisfaction . . . .” (Citations omitted; internal quotation marks omitted.) State v. Payne, 12 Conn. App. 408, 412-13, 530 A.2d 1110 (1987).

It is, therefore, “constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). A claim that the trial court failed to instruct the jury adequately on an essential element of the crime charged necessarily involves the defendant’s due process rights and implicates the fairness of his trial. State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989).” (Internal quotation marks omitted.) State v. Gayle, 64 Conn. App. 596, 605, 781 A.2d 383, cert. denied, 258 Conn. 920, 782 A.2d 1248 (2001). Accordingly, the defendant’s claim is of constitutional magnitude alleging the violation of a fundamental right. The defendant may not prevail, however, under the third prong of Golding because he has not established that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. See State v. Golding, supra, 213 Conn. 239-40.

General Statutes § 53a-119 defines larceny in relevant part as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” Connecticut courts have interpreted the essential elements of larceny as “(1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.” (Internal quotation marks omitted.) State v. Calonico, 256 Conn. 135, 153, 770 A.2d 454 (2001).

We conclude that the court’s charge to the jury included all of the essential elements of the crime of robbery, but provided an incomplete description of larceny. The court’s instructions as a whole, however, were sufficient to convey the essential meaning of larceny to the jurors. The court instructed that robbery in the first degree involved alarceny, and then described larceny as “a theft, the taking away of the property of another person.” To the extent that the charge failed to include the further instruction that the crime of larceny includes the notion of a wrongful taking with the intent to permanently deprive, the charge was imperfect, or technically incomplete.

“The standard of review for an improper instruction on an element of an offense is whether it is reasonably possible that the jury was misled. State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995); State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994). In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982). . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978) .... The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977) .... The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” (Internal quotation marks omitted.) State v. Gayle, supra, 64 Conn. App. 605. “While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Emphasis in original; internal quotation marks omitted.) Richmond v. Ebinger, 65 Conn. App. 776, 779, 787 A.2d 552 (2001).

By stating that larceny involved a “theft, the taking away of the victim’s property,” the court conveyed the essential characteristics of larceny. “[W]hen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.” State v. Kurvin, 186 Conn. 555, 562, 442 A.2d 1327 (1982). The word “theft” has an ordinary meaning that conveys both wrongfulness and permanent retention. On hearing that larceny means a theft or a taking away, there was no reasonable likelihood that the jury was misled because the jury was informed that to find the defendant guilty, it had to find that he aided Junkie Jay in a wrongful taking with the intent permanently to deprive Welch of his medallion and chain.

Moreover, the court’s instructions are not to be examined in a vacuum, but in the context of the factual issues raised at trial. Id., 558. Here, apart from defense counsel’s cross-examination of Welch to demonstrate by his prior felony convictions that he was not a trustworthy witness, there was no suggestion at trial that the forcible removal of the victim’s chain and medallion by Junkie Jay was anything but wrongful. Nor was there any suggestion that the taking was not intended to be permanent. Indeed, at trial, Welch testified that the chain was never returned to him. By stating that larceny involved a theft, a taking away of the victim’s property, the court thus conveyed the essential characteristics of larceny and, in the context of the evidence, it cannot reasonably be argued that the charge, while incomplete, misled the jury.

Accordingly, the charge was sufficient for the guidance of the jury, and the defendant has not shown that a constitutional violation clearly exists that clearly deprived him of a fair trial. Consequently, the defendant has not satisfied the third prong of Golding and his claim must fail.

B

The defendant next claims that he was denied his right to a fair trial because the court improperly commented on the evidence in its instructions to the jury. He claims that in stating that “I don’t think there is any question . . . that there was a deadly weapon,” the court impermissibly suggested that the weapon Faughnan retrieved from the defendant the day after the robbery was one of the weapons used to strike Welch in the course of the robbery. We disagree.

At trial, testimony was offered with respect to three issues regarding the gun that was retrieved from the ground when the defendant and his companion fled from Faughnan. The first issue was whether the person who placed the gun on the ground was the defendant or his companion. The second and third issues were whether that particular gun had been used by any of the assailants during the robbery and whether the gun was operable.

Regarding the first two issues, Welch identified the defendant and Salmond as the two men who had beaten him with guns during the robbery. He also identified the handgun taken from the defendant as one of the weapons used during the robbery. When shown the gun and asked if it looked similar to those used in the robbery or looked familiar to him, Welch replied, “It does.” He then was asked why it looked familiar, to which he replied, “I was hit with that one.” When he was asked whether it appeared similar to one of the objects with which he was hit, he replied, “Same, black; about the same size.”

Edward McPhillips, from the Connecticut state police forensic laboratoiy, testified for the state as to the gun’s operability. McPhillips stated that he tested the weapon retrieved from the defendant and that the weapon was capable of discharging bullets. Following McPhillips’ direct testimony, there was no cross-examination by counsel for either defendant. The testimony concerning operability was, therefore, unchallenged.

In its instructions to the jury, the court stated: “Now, let me say this to you, ladies and gentlemen, my recollection of the evidence—again it’s your recollection which controls, but this is just my observation, if you believed that there was a deadly weapon used in this alleged crime, if you find there was a robbery, that’s a fact that you are going to have to decide, but if you do decide that there was a robbery, I don’t think there is any question, ladies and gentlemen, that there was a deadly weapon, but that again is your decision.” (Emphasis added.)

After those comments, the court continued: “For you to find the defendants, either one or both, guilty of the charge, the state must prove beyond a reasonable doubt that the defendant committed a robbery as defined in § 53a-133. . . . Remember, you will consider robbery in the first degree only after you have determined that the defendant committed a robbery. Robbery in the first degree requires proof of an aggravating factor that occurs in the course of the commission of a robbery or the immediate flight from the robbery. The aggravating factor under this section for your consideration is that in the course of the commission of the robbery or the immediate flight therefrom, the defendant or another participant in the robbery or the crime was armed with a deadly weapon. The state must prove this aggravating factor beyond a reasonable doubt.

“Under our law, a deadly weapon is any weapon whether loaded or unloaded from which a shot may be discharged. You must decide if the state has established beyond a reasonable doubt that the weapon admitted into the evidence was one from which a shot may have been discharged.

“You have to determine whether that’s the weapon, but there was credible evidence, if you so believe, it from the expert from the forensic [laboratory], that, that was an operable weapon, a weapon from which there could be a discharge. In fact, he testified that he fired the gun twice into the bucket or pail of water.

“The state does not have to prove that the defendants intentionally armed themselves with a deadly weapon or that any of the other participants intentionally armed themselves with a deadly weapon in the course of the commission of the crime .... The state has to prove that either the defendant or any one of the participants in the alleged robbery was armed with a deadly weapon.

“You must first find that the state has established beyond a reasonable doubt that the defendant committed a robbery .... You must then decide if the state has proven that during the course of the robbery . . . either the defendant or another participant was armed with a deadly weapon. If you find that the defendant or one of the other participants was armed with a deadly weapon beyond a reasonable doubt, then you should find the defendant or the defendants guilty .... If the state fails to establish any of the elements of robbery in the first degree beyond a reasonable doubt, then you should find the defendants not guilty.”

Later in the charge, the court provided the jury with an explanation of § 53a-134 (a) (4), that portion of the statute pertaining to the display of what a perpetrator represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm. In that regard, the court stated: “Obviously shotgun, machine gun, don’t apply here, it’s—was there a pistol or a revolver as that forensic officer defined it. He said it was one or the other, and you have to determine whether in fact that weapon was involved in this particular crime.”

Those portions of the charge were amplified by the court’s general instructions to the jury delineating their fact-finding responsibilities, their right to disregard the comments by either the court or counsel on the evidence if those comments did not comport with their own recollections and their obligation to independently assess the evidence.

At the conclusion of the instructions, defense counsel took exception to the following language used by the court in instructing the jury: “I don’t think there is any question, ladies and gentlemen, that there was a deadly weapon.” Counsel insisted that “that’s a question for the jury to decide.” The court responded: “Well, I think I said that, there was no question that there was a deadly weapon if they believed that there was a weapon used in the crime. I don’t think I said that they are to immediately infer or to accept without reservation, that there was a weapon here in this crime or that this weapon that was offered was in fact the weapon used in the crime. I think that I made that pretty clear. I’ll overrule that.”

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. . . . Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. . . . The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter. ” (Citation omitted; internal quotation marks omitted.) State v. Young, 68 Conn. App. 10, 17, 791 A.2d 581, cert. denied, 260 Conn. 909, 795 A.2d 547 (2002).

The claim of an improper instruction on an element of an offense is of constitutional magnitude. State v. Gayle, supra, 64 Conn. App. 605. We therefore review the entire charge to determine whether it is reasonably possible that the jury was misled. “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) State v. Young, supra, 68 Conn. App. 17.

We conclude that the court did not advise the jury, as the defendant claims, that the weapon retrieved from the defendant the day after the robbery was used to strike Welch. The court explained in response to the defendant’s objection that the language it used was intended to convey only that “there was no question that there was a deadly weapon” if the jurors believed that a weapon was used in the crime and that the weapon retrieved from the defendant was one of the weapons used in the robbery.

The defendant argues that even if the court did not instruct that the weapon in question was used in the crime, the court improperly commented on its operability. He further argues that the weapon’s operability was a factual question for the juiy to decide and that the jury should have been free to find that the weapon introduced into evidence was not a deadly weapon.

Although we do not encourage the court to make conclusory statements regarding the evidence, the statement made by the court that the weapon in question was deadly did not deprive the defendant of a fair trial where the operability of the gun essentially was uncontested. Moreover, the court did not direct or advise the jury to find that the weapon was deadly. To the contrary, immediately before uttering the disputed words, the court advised the jurors that “it’s your recollection which controls,” and immediately thereafter added, “but that again is your decision.” Indeed, the court specifically directed that the jurors must decide if the state had established beyond a reasonable doubt that the weapon admitted into evidence was one from which a shot may have been discharged: “You have to determine whether that’s the weapon, but there was credible evidence, if you so believe it, from the expert from the forensic [laboratory], that, that was an operable weapon, a weapon from which there could be a discharge.” (Emphasis added.)

Furthermore, reviewing the charge in its entirety, we conclude that the court did not unfairly comment on the evidence. The court repeatedly instructed that the jurors were the sole finders of fact, that every element of the crimes charged had to be proved beyond a reasonable doubt and that if the state failed to prove any element beyond a reasonable doubt, they should find the defendants not guilty. Accordingly, the court’s instructions did not mislead the jury and, consequently, they did not unduly prejudice the defendant and deprive him of a fair trial.

C

The defendant also claims that the court failed to charge the jury that as an accessory, he may have had an intent different from that of the principal and may have been culpable of a lesser included offense. The defendant seeks review of his unpreserved claim under State v. Golding, supra, 213 Conn. 239-40.

We conclude that the record is adequate for review and that the defendant’s claim that the court improperly instructed the jury on the element of intent is of constitutional magnitude. We reject the defendant’s claim, however, under the third prong of Golding because he has not established that a constitutional violation clearly exists that clearly deprived him of a fair trial.

The court charged the jury as follows on the element of accessory liability: “Under the law, an accessory is just as guilty as if he were the principal offender. Being an accessory is not a crime in and of itself, but it is only another way of committing a crime. The principal responsibility of an accessory is provided in [General Statutes § 53a-8 (a)] of our Penal Code, and that section states as follows: ‘A person, acting with the mental state required for the commission of an offense, who . . . intentionally aids, another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct, and may be prosecuted and punished as if he were the principal offender.’

“So focus ... on a person’s mental state and does he do something which intentionally aids another person to engage in the conduct which constitutes the crime. If you so find, then that person is as guilty as the person who is the principal offender, but you must find that the state has proved that beyond a reasonable doubt. A person is an accessory if he intentionally aids another person to engage in the conduct that constitutes the offense. A person acts intentionally with respect to the result or to the conduct when his conscious objective is to cause such result or to engage in such conduct. Intentionally aid therefore means to act in any manner, the conscious objective of which is to help, assist or support the principal offender.

“In order to be an accessory under the statute, a person must not only intentionally aid another person to engage in conduct that constitutes the offense, but he must commit one of the following, ladies and gentlemen. He must have that mental state required for the commission of the underlying offense or crime and share the same unlawful purpose or purposes in common with the person who actually commits the offense. It is not enough that [the] person committed acts specified in the statute as I am now reading to you, that in fact aided the actual participation or perpetration of the crime, he must also have the same mental state and purpose necessary to be guilty of the crime as does the actual perpetrator.

“In order to prove the defendant or defendants guilty as an accessory to a crime charged in any of the counts, the state has the burden to prove that the defendant with the requisite mental state intentionally aided another person who actually committed the crime charged in that count .... Therefore, you must find that the state has proven beyond a reasonable doubt that the defendant or defendants assisted another person to commit the crime of robbery, as I have defined it to you with the requisite state of mind, as I explained to you in this charge.”

General Statutes § 53a-8 (a) provides in relevant part: “A person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

The defendant concedes that the court instructed on the element of accessory liability and “in substance charged criminality of intent and community of unlawful purpose.” He claims, however, that the court improperly failed to charge that, as an accessory, he may have had an intent different from that of the principal and may have been culpable of a lesser included offense.

As previously stated, the standard of review for an improper instruction on an element of an offense is whether it is reasonably possible that the jury was misled. State v. Prioleau, supra, 235 Conn. 284. We conclude that it was not.

In State v. Floyd, 253 Conn. 700, 721, 756 A.2d 799 (2000), our Supreme Court considered a claim that under Connecticut law, an accessory need not share the same criminal intent as the principal to be convicted as an accessory, but may have had an intent different from that of the principal and be convicted, as an accessory, of a crime different from that for which the principal is convicted. The court, however, did not resolve that issue, but concluded that even if the statutory interpretation urged by the defendant was correct, any error in the jury instructions was harmless beyond a reasonable doubt because the jury reasonably could not have found that the defendant in the case had a level of intent different from that of the principal. Id., 723-24.

We conclude likewise. The defendant points to Welch’s testimony that Junkie Jay, and not the defendant, was the person who robbed him, but Welch also indicated that the defendant and Junkie Jay acted in concert to accomplish the robbery. Welch testified that after Junkie Jay grabbed the chain and medallion from his neck, the defendant and Salmond accosted him at the bottom of the steps and prevented him from pursuing Junkie Jay. Welch further testified that the defendant and Salmond pulled him toward the alley, beat him about the head and attempted to rifle his pockets while Junkie Jay stood by and that all three fled when the police arrived on the scene.

Accordingly, we conclude that there was no evidence from which the jury reasonably could have inferred that the defendant’s intent differed from that of the principal, and it is not reasonably possible that the jury was misled by the court’s instructions on accessory liability. The defendant, therefore, has failed to prove that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial, and his claim must fail under the third prong of Golding. See Slate v. Golding, supra, 213 Conn. 239-40.

The judgments are affirmed.

In this opinion the other judges concurred.

       This case is the companion to State v. Salmond, 69 Conn. App. 81, 797 A.2d 1113 (2002).

       “[A] criminal defendant has the right to appear in court free from physical restraints. . . . Grounded in the common law, this right evolved in order to preserve the presumption favoring a criminal defendant’s innocence, while eliminating any detrimental effects to the defendant that could result if he were physically restrained in the courtroom. . . . The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. . . . The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” (Citations omitted; internal quotation marks omitted.) State v. Woolcock, 201 Conn. 605, 612-13, 518 A.2d 1377 (1986). The claim that the court failed to question the prospective jurors adequately as to whether they may have seen the defendant in shackles thus implicates the defendant’s right to a fair trial.

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him [and] to have compulsory process to obtain witnesses in his behalf .... No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       Practice Boole § 40-21 provides in relevant part: “Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file within twenty days, or at such other time as the judicial authority may direct, a written notice of the defendant’s intention to offer a defense of alibi. ...”

       The current edition of Black’s Law Dictionary defines “theft” as “[t]he felonious taking and removing of another’s personal property with the intent of depriving the true owner of it; larceny.” Black’s Law Dictionary (7th Ed. 1999). The previous edition of Black’s Law Dictionary defined “theft” as “[a] popular name for larceny.” Black’s Law Dictionary (6th Ed. 1990).


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. TEDDY SALMOND
    (AC 20477)
    Lavery, C. J., and Bishop and Daly, Js.

      Argued January 17
    officially released April 9, 2002

      Sandra J. Crowell, deputy assistant public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, was Mary M. Galvin, state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

In this case, which is the companion to Statev. Flowers, 69 Conn. App. 57, 797 A.2d 1122 (2002), the defendant, Teddy Salmond, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). The defendant claims that the court (1) improperly determined that he was ineligible for youthful offender status, (2) improperly granted, over his objection, the state’s motion for joinder and (3) improperly instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of September 18, 1998, Jordan Welch returned after work to his home in West Haven. A block party was in progress at a neighbor’s house. Welch visited the party briefly, returned to his front porch and watched the nearby festivities while drinking a beer in the company of his eleven year old son.

Within minutes, Welch saw a neighbor known to him as “Junkie Jay” emerge from the alley next to his house. Junkie Jay proceeded up the steps of Welch’s porch while glancing to his side. Following Junkie Jay’s eyes, Welch observed the defendant and his codefendant at trial, Jermano C. Flowers, standing together about ten feet away in front of his porch. As Junkie Jay ascended the steps, he drew a silver or chrome handgun, pointed the gun at Welch and ordered him to surrender his gold chain and religious medallion. Welch told his son to go into the house. Junkie Jay then snatched the chain and medallion from Welch’s neck and departed down the steps.

Welch pursued Junkie Jay, but was accosted at the bottom of the steps by the defendant and Flowers. The two men grabbed Welch from the side and pulled him toward the alley, where both men, each wielding a black handgun, beat Welch about the head and attempted to rifle his pockets. The arrival of a police officer, Anthony Pacileo, caused Junkie Jay, the defendant and Flowers to flee.

Welch, who was bleeding from a head wound, described his three assailants to Pacileo. When backup officers arrived, they walked with Welch to the party site and surveyed the crowd. There, Welch identified the defendant, who was taken into police custody. A search of the defendant and the immediate area failed to produce the stolen articles or any weapons. Neither Junkie Jay nor Flowers was found that evening, and Welch never recovered the stolen medallion and chain.

The following morning, Welch again was sitting on his front porch when he observed Flowers’ brother, Stephen Flowers, park a vehicle outside the Flowers residence adjacent to Welch’s home. Both men gestured toward each other and began to brawl on the sidewalk. During the fight, Stephen Flowers brandished a black handgun, and Welch retreated inside his home. Welch’s wife, who had observed the fracas from inside the residence, called the police.

The police arrived at the scene shortly thereafter, and Flowers’ mother consented to a search of the Flowers residence, where Stephen Flowers was apprehended. During the search, Officer Sean Faughnan was detailed to secure the rear yard, which was separated from the Welch yard by a fence. At one point, Faughnan looked through the slats of the fence and saw Jermano Flowers and another man cross the Welch yard and proceed toward the Welch residence. As the men approached the house, Faughnan observed Flowers withdraw a handgun from his waistband. Faughnan drew his own weapon, opened a gate in the fence and confronted both men from a distance of three to five feet. Flowers placed the handgun on the ground and the two men fled the area.

After securing the gun left by Flowers, Faughnan gave chase, directed, in part, by observant neighbors. Faughnan later discovered and apprehended Jermano Flowers, who kicked and spat at the officer while Faughnan was trying to secure him. Flowers subsequently was arrested and charged in connection with the robbery.

The court granted the state’s motion to try the defendant and Flowers together. The jury found the defendant guilty of robbery in the first degree. The court sentenced the defendant to a total effective term of twelve years imprisonment, execution suspended after nine years, and five years probation. This appeal followed.

I

The defendant claims that the court improperly determined that he was ineligible for youthful offender status. Specifically, the defendant (1) challenges the adequacy of the investigation of him that was conducted by the office of adult probation to assist the court in determining his eligibility for youthful offender status and (2) claims that the court improperly exercised its discretion in determining that he was ineligible for such status.

The following procedural histoiy is relevant to the defendant’s claim. On October 6,1998, the state charged the defendant with one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53&-134:. On June 18,1999, the defendant, who was then seventeen years old, filed an application for an investigation to determine whether he was eligible for youthful offender status. On June 18, 1999, the court, Flynn, J., granted the application, but declined to order that the investigation include a mental or physical examination of the defendant. See General Statutes § 54-76d (a).

The office of adult probation investigated the defendant and reported that he satisfied the preliminary requirements for eligibility for youthful offender status. See General Statutes § 54-76b. After receiving the results of the investigation, the court, Thompson, J., held a hearing to determine whether to grant the defendant youthful offender status. During that hearing, which occurred on July 27, 1999, the state argued that the defendant should not be accorded youthful offender status due to the seriousness of the crime.

Defense counsel conceded that robbery in the first degree was a serious crime, but challenged the strength of the evidence against the defendant. Additionally, counsel emphasized that (1) the investigation had disclosed that the defendant satisfied the preliminary requirements for eligibility and (2) the defendant still was attending high school. Regarding the results of the investigation of the defendant, he stated: “Obviously, the results of the examination and investigation and questioning in this matter really just determines whether or not he’s eligible on his age and things of that nature .... I don’t think there’s anything in the examination, investigation and questioning that Your Honor has in front of you that I can point to other than that he’s just saying that it wasn’t him, that he was searched almost immediately afterward, and none of the fruits of the crime or the gun were found on him

At the conclusion of the hearing, the court declined to grant the defendant youthful offender status. In so doing, the court stated: “/ don’t know whether [the defendant] is guilty of this charge or not. He’s presumed, presumed to be innocent of this charge and that—that’s the situation whether he’s tried in the adult court or tried as a youthful offender, and that’s not what we’re dealing with here today. We’re not dealing with whether he’s guilty or not of this charge. But as far as the charge itself, a gunpoint robbery, in my mind it’s much too serious for youthful offender status, so I’m going to deny the motion.” (Emphasis added.)

A

The defendant claims that the investigation of him that was conducted by the office of adult probation was inadequate as a matter of law. Therefore, he argues, his right to due process under the fourteenth amendment to the United States constitution was violated.

The record discloses that the defendant’s claim is unpreserved. “When a claim is raised for the first time on appeal, our review of the claim is limited to review under either the plain error doctrine; [Practice Book § 60-5]; or State v. Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989)].” State v. Barnett, 53 Conn. App. 581, 600, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999). The defendant did not request review of his claim under either of those doctrines. “ ‘As this court has previously noted, it is not appropriate to engage in a level of review that is not requested.’ State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995).” State v. Barnett, supra, 600. Accordingly, we decline to review the claim.

B

The defendant claims also that the court improperly exercised its discretion in denying his youthful offender application. Specifically, he claims that the court’s oral ruling discloses that the court violated § 54-76d (b) by considering only the severity of the charge in ruling on his application for youthful offender status.

Section 54-76d (b) provides in relevant part: “[T]he court, in its discretion based on the severity of the crime, which shall also take into consideration whether or not the defendant took advantage of the victim because of the victim’s advanced age or physical incapacity, and the results of the examinations, investigation and questioning, shall determine whether such defendant is eligible to be adjudged a youthful offender. . . .” Thus, under § 54-76d (b), a court, in determining eligibility for youthful offender status, is required to consider (1) the severity of the alleged crime, (2) whether the victim was of advanced age or had a physical incapacity and, if so, whether the defendant targeted the victim on the basis of either of those characteristics, and (3) the results of the examinations, investigation and questioning.

On the basis of the record, we are unpersuaded that the court failed to consider the appropriate statutory criteria in determining the defendant’s eligibility for youthful offender status. The mere fact that the court referred to the seriousness of the crime does not support the defendant’s argument that the court failed to consider all of the relevant statutory factors in declining to grant the defendant youthful offender status.

II

Next, the defendant claims that the court improperly granted, over his objection, the state’s motion for joinder. Specifically, the defendant argues that (1) the court improperly exercised its discretion in granting the motion because it failed, inter alia, to apply the proper test and (2) due to joinder, he actually was prejudiced as the trial progressed.

A

We first address the defendant’s argument that the court did not apply the proper test when considering the motion for joinder. He contends, and the state concedes, that the court mistakenly applied the test for determining whether to consolidate multiple charges against one defendant for trial, instead of the test for determining whether to join the trials of two or more defendants who each allegedly were involved in the same criminal incident.

The record discloses that the court mistakenly considered the factors that our Supreme Court, in State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987), had identified as relevant to determining whether multiple charges against one defendant should be consolidated for trial. “[Those] factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Delgado, 243 Conn. 523, 532-33, 707 A.2d 1 (1998), citing State v. Boscarino, supra, 722-24.

The test that the court should have applied was stated recently by our Supreme Court in State v. Ortiz, 252 Conn. 533, 747 A.2d 487 (2000): “Ordinarily justice is better subserved where parties are tried together. . . . Joint trials of persons jointly indicted or informed against are the rule, and separate trials the exception resting in the discretion of the court. ... A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. . . . [T]he phrase prejudicial to the rights of the [accused] means something more than that a joint trial will probably be less advantageous to the accused than separate trials.” (Internal quotation marks omitted.) Id., 575, quoting State v. Booth, 250 Conn. 611, 620, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). “The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded.” (Internal quotation marks omitted.) State v. Ortiz, supra, 575, quoting State v. Booth, supra, 620.

Ordinarily, a decision on a motion for joinder is entitled to our deference and will not be disturbed absent an abuse of discretion. See, e.g., State v. Ortiz, supra, 252 Conn. 575 (“ ‘[w]hether to consolidate or sever the trials of defendants involved in the same criminal incident lies within the sound discretion of the trial court’ ”). When ruling on a motion for joinder, a court’s discretion encompasses the act of weighing the factors included in the test set forth in State v. Ortiz, supra, 575, and its predecessors. A court has no discretion, however, in selecting the test to apply when considering such a motion. Cf. State v. Thurman, 10 Conn. App. 302, 317, 523 A.2d 891 (“[t]his court simply does not enjoy the luxury of ignoring binding precedent of our highest court”), cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). Therefore, the abuse of discretion standard of review does not apply because the court applied the wrong factors.

As stated in previous cases, we can affirm a correct decision even though the reasoning underlying that decision is flawed. See, e.g., State v. Lucas, 63 Conn. App. 263, 270 n.7, 775 A.2d 338 (“ ‘[w]e can sustain a right decision although it may have been placed on a wrong ground’ ”), cert. denied, 256 Conn. 930, 776 A.2d 1148 (2001); Biro v. Hirsch, 62 Conn. App. 11, 16 n.7, 771 A.2d 129 (“[w]e may affirm a proper result of the trial court for a different reason”), cert. denied, 256 Conn. 908, 772 A.2d 601 (2001). Accordingly, we review the record to determine whether the ultimate decision on the motion for joinder was correct. Our standard of review is plenary, and we are mindful that our review of the court’s initial decision must be based solely on the information provided to the court at the time the motion was considered. See State v. Booth, supra, 250 Conn. 620-21; see also State v. Smith, 201 Conn. 659, 669, 519 A.2d 26 (1986) (“[t]he discretion of the court is necessarily exercised before the trial begins and with reference to the situation as it then appears to the court”).

The following additional procedural history is relevant. During the pretrial hearing on the motion, the state argued that (1) the evidence indicated that on the morning following the robbery, a police officer had seen Flowers toss a gun matching the description of one that had been used in the robbery, (2) the police had recovered that gun and testing later had revealed that it was operable, and (3) the state had charged the defendant and Flowers each with violating § 53a-134 (a) (2), which required proof that at least one of the defendants had been armed with a deadly weapon. Thus, the state argued, the operability of the gun that had been recovered on the morning following the robbery was an element of the robbery charge against the defendant. Also, the state claimed that although evidence indicated that Flowers had resisted arrest on the morning following the robbery, that evidence would not be inflammatory, gruesome or otherwise highly prejudicial. The state also contended that the cases were simple and, if joined, likely would take no longer than one week to try. Finally, the state argued, our law favors joinder, and joinder furthers judicial economy.

In response, the defendant argued that because Flowers had additional charges relating to his conduct on the morning following the robbery, there would be evidence admissible against Flowers but not against the defendant. Similarly, the defendant argued that evidence of the fact that Flowers, on the morning after the robbery, had run from a police officer and later resisted arrest would be inadmissible at the defendant’s trial if he were tried separately, and that such evidence would be prejudicial in light of the fact that the defendant did not resist his arrest on the evening of the robbery. The defendant also argued that there was a possibility of antagonistic defenses.

In the present case, the defendant failed to offer any persuasive information to substantiate his claim of antagonistic defenses. “[I]t is the party’s responsibility to present information to the court from which it can determine whether the defenses are going to be antagonistic . . . .” (Internal quotation marks omitted.) State v. Booth, supra, 250 Conn. 621. Furthermore, our Supreme Court has stated that mere assertions are insufficient to overcome the preference for a joint trial. See, e.g., id.; State v. Varricchio, 176 Conn. 445, 449-50, 408 A.2d 239 (1979) (defenses not antagonistic even though defendants asserted they were).

Also, the evidentiary concerns expressed by the defendant do not foster a belief that a joint trial likely would result in substantial injustice. On the basis of the information provided by the defendant at the hearing on the motion for joinder, we conclude that the court’s decision to try the defendant and Flowers together was correct.

B

The defendant also claims that due to joinder, he actually was prejudiced as the trial progressed. Specifically, he argues that he was prejudiced (1) by the “spillover” effect of evidence indicating that the gun recovered on the morning following the robbery was operable, (2) because the state “presented its case in a confusing and broken manner,” (3) because “joinder eviscerated [his] misidentification defense,” (4) because the state “improperly pitted the defense arguments against one another” and (5) because “the jury instructions exacerbated the prejudice.”

“[E]xceptional cases may arise where a motion for [joinder has been properly granted], but during or after the joint trial it appears that the joint trial is resulting or has resulted in substantial injustice to one or more of the accused. In such circumstances, justice to the prejudiced accused requires that he be afforded a new trial.” State v. Holup, 167 Conn. 240, 245, 355 A.2d 119 (1974); accord State v. Booth, supra, 250 Conn. 623. To prevail on a claim of this type, the “defendant must prove substantial injustice.” (Internal quotation marks omitted.) State v. Booth, supra, 633. “[I]t is not enough for [a] defendant to show that a joint trial was less advantageous than a separate trial would have been.” (Internal quotation marks omitted.) Id. Accordingly, we now, inter alia, “scrutinize the strategies [actually] employed by each defendant at trial and determine, in light of the trial court’s ongoing duty to monitor the fairness of the joint trial, whether conflict between the defendants tainted the proceeding.” State v. Vinal, 198 Conn. 644, 649, 504 A.2d 1364 (1986); see also State v. Cavanaugh, 23 Conn. App. 667, 676, 583 A.2d 1311 (1990) , cert. denied, 220 Conn. 930, 598 A.2d 1100 (1991) .

The record discloses that (1) the defenses employed at trial were not antagonistic, (2) the evidence concerning the operability of the gun was properly admitted against both defendants, (3) the trial was neither lengthy nor complex, (4) the state presented evidence of the crimes in chronological order, (5) the defendant’s misidentification defense was not at all compromised and (6) the state did not “improperly [pit]” the defendants against each other. More importantly, the record discloses that the court, while instructing the jury during the trial and in its jury charge, carefully and methodically directed it to consider each defendant’s case separately.

For the foregoing reasons, we conclude that the defendant has failed to prove that he was substantially prejudiced by the joinder of his trial with that of Flowers.

Ill

Finally, the defendant claims that the court improperly instructed the jury, thereby violating his right to a fair trial as guaranteed by the fourteenth amendment and article first, § 8, of the Connecticut constitution. The defendant argues that the court (1) improperly failed to include the statutory definition of larceny in its instruction on the elements of robbery in the first degree and (2) improperly commented that the evidence indicated that the defendant had wielded a dangerous weapon in the course of the robbery. In State v. Flowers, supra, 69 Conn. App. 67-68, Flowers raised the same challenges to the jury instructions, which we addressed and rejected in parts III A and III B of that opinion. We reject the defendant’s jury instruction claims on the basis of that analysis.

The judgment is affirmed.

In this opinion, the other judges concurred.

       Thereafter, on March 1, 1999, the state filed a substitute information charging the defendant with one count of robbery in the first degree.

       General Statutes (Rev. to 1997) § 54-76c provides in relevant part: “In any case where an information or complaint has been laid charging a defendant with the commission of a crime, and where it appears that the defendant is a youth, upon motion of the defendant, his counsel, the state’s attorney or the prosecuting attorney, as the case may be, to the court having jurisdiction that an investigation be made of such defendant for the purpose of determining whether he is eligible to be adjudged a youthful offender, the court shall, but only as to the public, order such information or complaint to be filed as a sealed information or complaint. . . .”

       General Statutes § 54-76d (a) provides: “If the court grants such motion or if the court on its own motion determines that the defendant should be investigated hereunder and the defendant consents to physical and mental examinations, if deemed necessary, and to investigation and questioning, and to a trial without a jury, should a trial be had, the information or complaint shall be held in abeyance and no further action shall be taken in connection with such information or complaint until such examinations, investigation and questioning are had of the defendant. Investigations under sections 54-76b to 54-76n, inclusive, shall be made by an adult probation officer. When the information or complaint charges commission of a felony, the adult probation officer shall include in the investigation a summary of any unerased juvenile record of adjudications of the defendant.”

       General Statutes § 54-76b provides in relevant part: “For the purpose of sections 54-76b to 54-76n, inclusive, ‘youth’ means a minor who has reached the age of sixteen years but has not reached the age of eighteen years or a child who has been transferred to the regular criminal docket pursuant to section 46b-127; and ‘youthful offender’ means a youth who is charged with the commission of a crime which is not a class A felony or a violation of subdivision (2) of section 53-21, section 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a or 53a-72b, who has not previously been convicted of a felony or been previously adjudged a serious juvenile offender or serious juvenile repeat offender, as defined in section 46b-120, or a youthful offender, or been afforded a pretrial program for accelerated rehabilitation under section 54-56e, and who is adjudged a youthful offender pursuant to the provisions of said sections. . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       During the hearing, the defendant neither objected to the report nor indicated to the court that he had concerns relating to its adequacy.

       We note that the test that the court mistakenly applied in the present case is not substantially similar to the correct test, which is iterated in State v. Ortiz, supra, 252 Conn. 575.

       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 . . . .” (Emphasis added.)

       Besides robbery in the first degree, Flowers was charged with interfering with an officer in violation of General Statutes § 53a-167a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a).

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf . . . and in all prosecutions ... to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”
      In State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), our Supreme Court set forth a six factor test for analyzing independent claims under the Connecticut constitution. “Those six factors are ‘(1) the textual approach ... (2) holdings and dicta of [our Supreme Court], and the Appellate Court ... (3) federal precedent ... (4) sister state decisions or sibling approach ... (5) the historical approach, including the historical constitutional setting and the debates of the framers . . . and (6) economic/ sociological considerations.’ . . . [Id., 685].” State v. Gibbs, 254 Conn. 578, 599 n.20, 758 A.2d 327 (2000). In his brief to this court, the defendant did not include those factors in his analysis. Absent a proper analysis of the state constitution, we deem abandoned the defendant’s state constitutional claim. See State v. Eady, 249 Conn. 431, 435 n.6, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).


author: MCDONALD, J.

text:
    STATE OF CONNECTICUT v. ALBERTO NIEVES
    (AC 21856)
    Lavery, C. J., and Mihalakos and McDonald, Js.
    Argued January 9
    officially released April 9, 2002

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

MCDONALD, J.

The defendant, Alberto Nieves, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court abused its discretion in permitting an expert witness to testify as to the results of an atomic absorption gunshot residue test performed on the defendant’s hands. We affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. At approximately 8 p.m. on June 28, 1996, the defendant, Alex Rivera, Jose Rivera, Luis Rosa, Ervin Rosado and others were near 100 Hobart Street in Meriden. The victim, David Laureano, who was not friendly with them, drove his vehicle, in which there were two passengers, down Arch Street toward the vicinity of 100 Hobart Street. When the vehicle stopped, Jose Rivera approached it, began an argument with the occupants and then threw a punch at Laureano. Laureano exited the vehicle, and Jose Rivera struck him. A fight ensued with golf clubs being used by Laureano’s passengers against several of the defendant’s companions. During the fight, the defendant was injured. As the fighting continued, Laureano was left fighting alone by his companions, who fled the scene when their golf clubs were taken away from them. The defendant at this time went to his apartment at 65 Arch Street, returned with a small semiautomatic handgun and shot Laureano, killing him. The defendant then ran back to 65 Arch Street.

The police arrived on the scene shortly thereafter. A witness identified the defendant and his companions as those involved in the altercation and shooting. The witness pointed out to the police officers a red vehicle leaving 65 Arch Street. Upon stopping the vehicle, an officer took the witness to the vehicle, were she identified Jose Rivera and Rosado. The witness then saw Alex Rivera walking down the street, whereupon he was arrested. The witness also told the police that she saw the defendant run into 65 Arch Street after the shooting. Upon investigating 65 Arch Street, the police found Rosa climbing into the defendant’s apartment window and took him into custody. A subsequent search of the back hallway at 65 Arch Street led to the defendant. Upon being discovered and before the police said anything, the defendant shouted at the police that he had not shot or killed anybody. The defendant resisted when the police attempted to apprehend him, requiring officers at the scene to call for additional help. No handgun was found at 65 Arch Street.

Once in police custody, all five individuals were given a gunshot residue test. The defendant and Rosa tested positive for the presence of lead on their hands. Lead was found on the defendant’s left palm, right palm and on the back of his right hand, and on Rosa’s left palm and the back of both of his hands. When Rosa testified at the defendant’s trial, he was unable to identify any source for the lead found on the defendant’s hands. The defendant was subsequently convicted of murder and carrying a weapon without a permit and sentenced to a total effective sentence of forty-five years. This appeal followed.

The defendant claims that the court abused its discretion when it failed to strike the testimony of the state’s expert witness, Robert O’Brien, after he testified that the gunshot residue test revealed the presence of lead on the defendant’s hands. We are not persuaded.

The following additional facts are necessary for our resolution of the defendant’s claim. At trial, the state called O’Brien, a supervising criminologist with the state police forensic science laboratory, to testify as to the results of the atomic absorption test for gunshot residue that was performed on the defendant’s hands. O’Brien testified that, in conducting a gunshot residue test, he looks for the presence of three metals or elements to ascertain whether an individual has recently fired a firearm: lead, barium and antimony. Further, O’Brien testified that when a person fires a firearm, there is a mist of gas created that will blow back on the person’s hand. This is a result of the detonation of the primer and the burning of gunpowder. Gunshot residue tests attempt to detect the primer residue that is left on an individual’s hands after firing a firearm. O’Brien stated that lead is the element most commonly found in gunshot residue, followed by barium, and then antimony. O’Brien also explained that each shot will produce a different amount of residue “so it really varies as to the amounts and the concentrations we get from the hands in any test firing . . . .” Only if lead, the most common component, is found will the residue be tested for the other elements. O’Brien explained that if lead is not found, it is not likely the other elements will be found.

The defendant’s test results disclosed that the defendant had traces of only lead on his hands, and not barium or antimony. When O’Brien was asked to state whether the lead on the defendant’s hands was a result of his firing a weapon, he testified, “I can’t be a hundred percent certain. It is one of the possibilities, that’s it.” O’Brien explained that environmental factors, such as a person’s occupation, might explain the presence of lead. He noted, however, that lead products are not common in society, but contact with a lead source could be a reason that an individual would have lead on his hands. Additionally, O’Brien explained that an individual could remove gunshot residue from his hands by wiping or washing them.

On cross-examination, O’Brien testified that the presence of only lead would be of the least significance, as opposed to a finding of all the elements. O’Brien stated that even if all three elements were found, however, he could not rule out the environmental factor, but the presence of all three elements made it more likely that a firearm was the source of the residue.

The following day, the defendant moved to strike O’Brien’s testimony. The defendant argued that the testimony’s relevance was outweighed by its prejudicial nature. In denying the defendant’s motion, the court stated that “there is some relevance to this testimony and the prejudicial effect does not outweigh the relevancy of it . . . .”

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was ... a showing by the defendant of substantial prejudice or injustice.” (Emphasis in original; internal quotation marks omitted.) State v. Turner, 62 Conn. App. 376, 383, 771 A.2d 206 (2001).

“Concerning expert testimony specifically, we note that the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 123, 763 A.2d 1 (2000).

A predicate to the admissibility of expert testimony is its relevance to some issue in the case. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) Id., 123-24; see also Conn. Code Evid. § 4-1.

The defendant concedes that O’Brien’s testimony was relevant. He does not claim that the results of gunshot residue tests should be prohibited under State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), which adopted the test enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), for the admissibility of scientific evidence. The defendant’s sole claim is based on his contention that because the results of the atomic absorption test performed on his hands revealed the presence of lead only, without a showing of barium or antimony, the probative value of O’Brien’s testimony was outweighed by its prejudicial impact.

In support of his claim, the defendant relies on our Supreme Court’s decision in State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990). This reliance, however, is misplaced. In Moody, the defendant argued that the trial court incorrectly permitted the state’s serologist to testify that a stain on one of the soles of the defendant’s shoes showed a positive result for the “presumptive test for blood.” The “presumptive test for blood” is “a preliminary screening test that determines whether the actual test for blood should be administered.” Id., 627. In Moody, because the stain was too small, the determinative test for blood could not be performed. Id., 628. Our Supreme Court found that the test result was “entirely irrelevant” and had “no probative value [because it] did nothing toward establishing the likelihood of the presence of human blood on the sole of the defendant’s shoe.” Id.

In this case, the testimony contributed toward establishing the likelihood that the defendant had recently fired a handgun. O’Brien testified that lead, the most commonly found element in gunshot residue, was in fact found on the defendant’s hands. Although O’Brien could not be 100 percent certain, the defendant’s firing a handgun could have caused the presence of lead. As pointed out in Wargo, the test result need not be conclusive to be admissible because “[a]ll that is required is that the evidence tend to support a relevant fact even to a slight degree . . . .” (Internal quotation marks omitted.) State v. Wargo, supra, 255 Conn. 124.

The analysis of possible gunshot residue is a widely accepted technique to determine if an individual has recently fired a gun. See R. Koons, D. Havekost & C. Peters, “Analysis of Gunshot Primer Residue Collection Swabs Using Flameless Atomic Absorption Spectrophotometry: A Reexamination of Extraction and Instrument Procedures,” 32 J. Forensic Sciences 846, 847 (1987). “When a firearm is discharged, an assortment of vaporous and particulate materials are expelled in the area around the firearm.” Id., 846. “These residues are principally composed of burnt and unbumt particles from the propulsive charge . . . the cartridge case and the firearm itself, and they are generally called gunshot residue . . . .” F. Romolo & P. Margot, “Identification of Gunshot Residue: A Critical Review,” 119 Forensic Science Int’l 195 (2001). “Most primers produce residue deposits that contain lead, antimony, and barium. These elements normally become more abundant on the hand after a handgun is fired.” H. Meng & B. Caddy, “Gunshot Residue Analysis—A Review,” 42 J. Forensic Sciences 553, 555 (1997). “The standard explosive initiator in primers is lead styphnate. . . . Oxidizing agents are used in primers to increase the heat of ignition. Barium nitrate is most commonly used in small-arms ammunition, but barium peroxide, lead nitrate, or lead peroxide may also be encountered. Antimony sulfide is commonly used as fuel in primers, but calcium silicide, lead thiocyanate, powdered aluminum, and powdered zirconium, magnesium, and titanium have also been used.” Id., 554.

Although the results from atomic absorption analysis are indicative of whether an individual has recently fired a gun or has been in contact with such a gun, they are not conclusive. The presence of lead, barium and antimony can be present on one’s hands without ever having been in contact with a firearm. F. Romolo & P. Margot, supra, 119 Forensic Science Int’l 197.

The use of atomic absorption analysis to detect the presence of gunshot residue has been recognized by the legal and scientific communities as a sufficiently reliable test. See State v. Fuller, 56 Conn. App. 592, 615-16, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000); Chatom v. State, 348 So. 2d 838, 842 (Ala. 1977); People v. Ward, 154 Ill. 2d 272, 316, 609 N.E.2d 252 (1992); F. Romolo & P. Margot, supra, 119 Forensic Science Int’l 200; H. Meng & B. Caddy, supra, 42 J. Forensic Sciences 556-57. Consequently, the atomic absorption test results in this case do not suffer from the same infirmities that the “presumptive test for blood” ruled inadmissible in Moody did.

“[Scientific evidence, like all evidence, is properly excluded if its prejudicial impact outweighs its probative value, even if it is otherwise admissible. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Citation omitted; internal quotation marks omitted.) State v. Pappas, 256 Conn. 854, 887-88, 776 A.2d 1091 (2001).

“Logically relevant evidence must also be legally relevant . . . that is, not subject to exclusion for any one of the following prejudicial effects: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Hunter, 62 Conn. App. 767, 774, 772 A.2d 709, cert. denied, 256 Conn. 925, 776 A.2d 1144 (2001).

In this case, the court properly denied the defendant’s motion to strike O’Brien’s testimony. O’Brien testified that the defendant tested positive for lead on his hands, which could have resulted from the defendant firing a weapon, although he could not be 100 percent certain. O’Brien explained that environmental factors cannot be ruled out as the source of the lead, and that, without barium and antimony, the presence of only lead is less significant than a finding of all three elements. The jury also heard testimony that Rosa knew of no environmental factor accounting for the lead found on the hands of his friend, the defendant. After a thorough review of O’Brien’s testimony, we conclude that its relevance outweighed any prejudicial impact it may have had and that it was for the juiy to determine how much weight to assign to O’Brien’s findings and opinion.

Accordingly, we conclude that the court; did not abuse its discretion in admitting into evidence O’Brien’s testimony on the results of the atomic absorption test that was performed on the defendant’s hands.

Even if we were to find that the court improperly denied the defendant’s motion to strike O’Brien’s testimony, we would still affirm the judgment because the defendant has failed to establish that substantial prejudice or injustice has resulted. The testimony of two eyewitnesses who positively identified the defendant as the person who shot the victim, combined with the defendant’s statements when approached by the police, would have rendered the admissibility of O’Brien’s testimony harmless. See State v. Campbell, 225 Conn. 650, 657, 626 A.2d 287 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon one’s person . . . without a permit to carry the same issued as provided in section 29-28. . . .”

       “Lead is found in plumbing materials, in battery plates, in type metal, in solder, in glass and in paint. Antimony is found in several alloys, often with lead, and its oxide is used as a fire retarding in cotton and polyester blend fibres. Barium is found in paint, in automobile grease and barium sulphate from paper is probably the dominant source of environmental barium on hands.” F. Romolo & P. Margot, supra, 119 Forensic Science Int’l 197.