author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. TRAVIS DOUGLAS
    (AC 31146)
    DiPentima, C. J., and Bear and Flynn, Js.

      Argued October 13, 2010
    officially released January 25, 2011

      Glenn W. Falk, special public defender, with whom, on the brief, was Jennifer Rae Taylor, law student intern, for the appellant (defendant).

      Nancy L. Walker, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Ann P. Lawlor, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Travis Douglas, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree with intent to cause physical injury to another person by means of the discharge of a firearm in violation of General Statutes §§ 53a-48 and 53a-59 (a) (5), conspiracy to commit assault in the first degree by means of a deadly weapon or dangerous instrument in violation of §§ 53a-48 and 53a-59 (a) (1), reckless endangerment in the first degree in violation of General Statutes § 53a-63 and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) there was insufficient evidence adduced at trial to sustain his conviction of conspiracy to commit assault in the first degree, reckless endangerment in the first degree and carrying a pistol without a permit, and (2) the trial court improperly admitted evidence of his prior uncharged misconduct. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. After moving from New Haven to Meriden, the defendant and his brother, Tavonne Douglas, became associated with a group of individuals known as the “New Haven boys.” While attending Maloney High School in Meriden, animosity developed between the New Haven boys and members of the Twiss Street gang “over girls.” This animosity frequently erupted into open acts of hostility, and the Meriden police department has made twenty to twenty-five arrests as a result of fights at the school between members of the two groups.

In a statement made to the Meriden police department on January 18, 2008, Robert Rios, who considered the defendant his best friend, recounted that the defendant had told him that the day after one of those fights in January, 2008, the defendant and his brother were standing outside the defendant’s home when they were approached by a group of “guys and girls . . . .” Feeling threatened, the defendant pulled out “a 38 or 32 revolver gun” that he had obtained from his cousin, Trevor Witherspoon, and fired two gunshots into the crowd. No one was hit on this occasion. Rios further recounted that the gun used on that occasion was given back to Witherspoon, who took it back to New Haven. Rios also stated that the defendant had told him that he intended to buy another gun that day, which would be used “to shoot somebody or shoot up a party . . . .”

Approximately four months later on April 30, 2008, longtime Meriden resident Heriberto Adorno was driving his truck on Liberty Street in Meriden with his wife when he passed three individuals wearing “shiny” jackets. Two of the jackets were hooded and black, one with a shiny gold leafy design, and the other with a silver tree and leaf design. Adorno thought the jackets were “funny looking” and shared a laugh with his wife. After passing these three individuals, Adorno testified, he “looked in the [rearview] mirror [of his truck, and] they began to shoot.” Although neither Adorno nor his wife saw a weapon, they both heard what they described as gunshots, and Adorno saw all three individuals he had passed with their hands positioned as if shooting a gun. Adorno then saw these three individuals run together along Liberty Street to Center Street. At no time did Adorno or his wife see the faces of these individuals.

Fearful for the safety of the children and adults that she had observed sitting on a nearby porch, Adorno’s wife called 911 to report the incident. Members of the Meriden police department discovered four .38 caliber bullet shell casings on Liberty Street, which is a busy side street. One of the shells had a very fresh odor of gunpowder residue suggesting recent gunfire. The fact that none of the shell casings had been destroyed by car traffic also indicated that they had been recently discharged.

While canvassing the scene for witnesses, Detective John Williams spoke with a witness with whom he was familiar and who had provided him with reliable information about criminal activity in the past. Officer Brian Sullivan interviewed a group of visibly shaken teenage girls who were found in the vicinity of the crime scene on Liberty Street. On the basis of those interviews and the information provided by the Adornos, the Meriden police determined that the New Haven boys had shot at the Twiss Street gang and that the parties responsible for the shooting were outside 570 Broad Street, the home of the defendant.

Thereafter, Meriden police officers were dispatched to the home of the defendant where the defendant, his brother and Witherspoon were standing outside without jackets. After obtaining a search warrant, members of the Meriden police department searched the defendant’s home and discovered two jackets matching the descriptions given by the Adornos. The defendant identified the black jacket with a silver tree or leafy design found on a couch inside the home as his own. The defendant’s brother identified as his the jacket with the shiny gold leafy design that was found on a bed inside the home. The police took the two jackets into custody and showed them to the Adornos, who positively identified them as the same ones they had seen worn by the individuals involved in the shooting incident earlier that evening. The defendant, his brother and Witherspoon were then arrested. While the police were processing the defendant, they discovered that he is left-handed.

After being read his Miranda? rights, the defendant admitted to the police that he was at the scene of the shooting with his brother and Witherspoon where he encountered some of the boys on that block who had a “beef’ with him and who were “messing” with him. The defendant, however, claimed that he did not know who fired the gunshots and that his group ran home after he heard the gunshots. More than six hours after the shooting, samples were taken from the hands of the defendant, his brother and Witherspoon. A gunshot residue test performed later returned negative results on all three samples. A gunshot residue test performed on the defendant’s jacket, however, returned a positive result for lead at the opening to the left-hand pocket. Similarly, a gunshot residue test performed on the jacket belonging to the defendant’s brother detected the presence of lead on the cuff of the left sleeve. An analysis of the shell casings performed at the state forensic science laboratory determined that they were .38 Remington casings, all fired from the same weapon, a semiautomatic pistol with a barrel no longer than six inches.

A jury trial was held on January 29 and 30, 2009. On February 3, 2009, the jury found the defendant guilty on all counts, and on March 31, 2009, the court sentenced him to eight years incarceration, followed by eight years of special parole. Additional facts will be set forth where necessary.

I

The defendant first claims that there was insufficient evidence adduced at trial to sustain his conviction of

(1) conspiracy to commit assault in the first degree, (2) reckless endangerment in the first degree and (3) carrying a pistol without a permit. We disagree.

We begin by setting forth our standard of review. “[F]or the purposes of sufficiency review . . . we review the sufficiency of the evidence as the case was tried .... Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error. ... [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Internal quotation marks omitted.) Stale v. Nasheed, 121 Conn. App. 672, 682, 997 A.2d 623, cert. denied, 298 Conn. 902, 3 A.3d 73 (2010).

“The appellate standard of review of sufficiency of the evidence claims is well established. In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . [T]he inquiry into whether the record evidence would support a finding of guilty beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .

“We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . . We are content to rely on the [jury’s] good sense and judgment.” (Internal quotation marks omitted.) State v. Wells, 100 Conn. App. 337, 341-42, 917 A.2d 1008, cert. denied, 282 Conn. 919, 925 A.2d 1102 (2007).

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Because [t]he only kind of an inference recognized by the law is a reasonable one [however] . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . [T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Internal quotation marks omitted.) Id., 342-43. With these principles in mind, we now turn to the elements of the individual crimes in the defendant’s conviction.

A

The defendant, by way of analogy to the factual circumstances in State v. Estrada, 28 Conn. App. 416, 421-22, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992), contends in his brief that there was insufficient evidence adduced at trial to “permit the jury reasonably and logically to infer that [he] agreed to engage in the criminal activity which was the object of the alleged conspiracy.” We disagree.

“To establish the crime of conspiracy under § 53a-48 . . . the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators.” (Internal quotation marks omitted.) State v. Millan, 290 Conn. 816, 825, 966 A.2d 699 (2009). “While the state must prove an agreement, the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Citations omitted; internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 495-96, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). “The state need not prove that the defendant and a coconspirator shook hands, whispered in each other’s ear, signed papers, or used any magic words such as we have an agreement.” (Internal quotation marks omitted.) State v. Sanchez, 84 Conn. App. 583, 588, 854 A.2d 778, cert. denied, 271 Conn. 929, 859 A.2d 585 (2004).

“The state must also show intent on the part of the accused that conduct constituting a crime be performed.” (Internal quotation marks omitted.) State v. Millan, supra, 290 Conn. 825. “Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy. . . . Thus, [p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Citation omitted; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 167, 869 A.2d 192 (2005).

“A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ... or (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.” General Statutes § 53a-59 (a). Thus, to obtain a conviction for conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (1) and (5), the state needed to prove beyond a reasonable doubt that (1) the defendant entered into and intended to enter into an agreement, (2) intending to cause serious physical injury to another person by means of a deadly weapon and intending to cause physical injury to another person by means of the discharge of a firearm, and (3) one of the conspirators committed an overt act in furtherance of the crime agreed upon.

The defendant appears to challenge the sufficiency of the evidence in establishing the first element beyond a reasonable doubt. Specifically, the defendant argues that, as in State v. Estrada, supra, 28 Conn. App. 416, because no one actually witnessed a gun being fired, no gun was found, no one actually identified a shooter, and the defendant, his brother and Witherspoon all tested negative for gunshot residue six hours after the shooting, there was insufficient evidence to prove that the defendant entered into, or intended to enter into an agreement or conspiracy to commit assault in the first degree. We disagree.

“It is necessary that a defendant have the mental state required for the commission of a crime while intentionally aiding another. [M]ere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.” (Internal quotation marks omitted.) State v. Hanks, 39 Conn. App. 333, 339, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995).

“[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Pettigrew, 124 Conn. App. 9, 32, 3 A.3d 148, cert. denied, 299 Conn. 916, 10 A.3d 1052 (2010). “[T]he defendant’s state of mind may be proven by his conduct before, during and after the shooting.” State v. Williams, 94 Conn. App. 424, 433, 892 A.2d 990, cert. denied, 279 Conn. 901, 901 A.2d 1224 (2006).

The defendant’s reliance on State v. Estrada, supra, 28 Conn. App. 416, is misplaced. In that case, the defendant’s conviction of conspiracy to commit murder was reversed by this court upon a determination that “the stacking of reasonable inferences the jury was required to draw was built on a weak foundation that failed to establish any semblance of the defendant’s participation in an agreement to engage in a conspiracy.” (Emphasis added.) Id., 422. Notably, “the only noncir-cumstantial connection between the defendant [and the alleged shooters] was their presence together in the van after the shooting.” Id.

The present case, however, is distinguishable. To begin, the defendant was alleged to have conspired with his brother, with whom he lived, and Witherspoon. This connection between the defendant and his brother was fortified by the fact that they were associated with a group known in Meriden as the New Haven boys. Through Rios’ statement, the jury heard evidence of prior coordinated activity between the defendant, his brother and Witherspoon in acquiring, transferring and using firearms.

Williams testified as to the significant animosity and open acts of hostility occurring between the New Haven boys and the Twiss Street gang. Williams further testified that the defendant admitted that he was at the scene of the shooting with his brother and Witherspoon where he had encountered people from the Twiss Street neighborhood who had a “beef’ with him and were “messing” with him, permitting the reasonable inference that the defendant had encountered members of the Twiss Street gang at the scene of the shooting.

Adorno testified that on the day of the shooting, he drove by three people walking on Liberty Street together, two of whom were wearing distinctive jackets he later was able to identify. Shortly after he drove by those three individuals, he “looked in the [rearview] mirror [of his truck, and] they began to shoot,” and he heard what sounded like gunshots. Adorno specifically testified that he witnessed all three individuals holding their hands in a shooting position. He then saw the three persons flee the scene together. Williams testified that the distinctive jackets later shown to Adorno to identify were taken from the defendant’s home and that the defendant and his brother admitted to owning the two jackets. Williams further testified that he found four recently discharged .38 caliber shell casings at the scene of the shooting.

Cumulatively, the evidence and reasonable inferences drawn therefrom established that (1) the defendant and his brother lived together and were members of the New Haven boys, (2) the New Haven boys previously had been involved in several acts of open hostility with members of the Twiss Street gang, (3) the defendant, his brother and Witherspoon previously had acted in a coordinated manner to acquire, transport and use a firearm, (4) the defendant arrived at the scene of the shooting with his brother and Witherspoon, (5) they encountered members of the Twiss Street gang, (6) all three of them held their hands as if shooting a gun, (7) gunshots were heard, (8) one of them fired four gunshots from a .38 caliber firearm and (9) all three of them fled the scene together.

On appeal, we do not ask whether we believe “that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Wells, supra, 100 Conn. App. 341-42. In addition, “[a] conspiracy can be formed ... in a very short time period . . . .” (Internal quotation marks omitted.) State v. Millan, supra, 290 Conn. 826.

The jury reasonably could have inferred that the defendant had entered into, and had intended to enter into, an agreement to commit assault in the first degree with his brother and Witherspoon on the basis of the following: (1) the defendant’s association with his brother as a member of the New Haven boys; see, e.g., State v. Wells, supra, 100 Conn. App. 348 (evidence of nature of relationship between alleged coconspirators relevant to issue of existence and object of alleged conspiracy); (2) his prior coordinated activity in acquiring and using a firearm with his brother and Witherspoon, (3) his arrival and departure from the scene of the shooting with his brother and Witherspoon; see, e.g., State v. Elsey, 81 Conn. App. 738, 747, 841 A.2d 714 (“the jury could have based at least part of its decision regarding the conspiracy charges on the defendant’s decision to come to the scene of the crime with the coconspirators, stay at the scene while the crimes were committed and leave the scene with the coconspirators”), cert. denied, 269 Conn. 901,852 A.2d 733 (2004); and (4) eyewitness testimony establishing that the defendant, his brother and Witherspoon all positioned their hands as if shooting a gun at the scene of the shooting where gunshots were heard and recently discharged bullet casings were found.

B

The defendant next claims that there was insufficient evidence adduced at trial to sustain his conviction of reckless endangerment in the first degree in violation of § 53a-63. Section 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.” The defendant contends that reversal of his conviction is required because the state failed to establish that he fired the gun, and, accordingly, the state did not demonstrate that he evinced an extreme indifference to human life or engaged in conduct that by itself created a risk of physical injury to another person. We disagree.

General Statutes § 53a-3 (13) provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .”

As presented in part I A of this opinion, the state adduced multiple pieces of evidence that cumulatively allowed the jury reasonably to infer that the defendant had either fired a gun himself or actively participated in a plan with his brother and Witherspoon to shoot at members of the Twiss Street gang. Adorno testified that he drove by three individuals, two of whom were wearing distinctive jackets he later was able to identify, and, shortly after passing them, he looked in the rear-view mirror of his truck and saw them shooting. Adorno also testified that he heard gunshots and saw all three individuals position their hands in a shooting posture. Williams testified that he found two distinctive jackets fitting Adorno’s description of them at the defendant’s home and that the defendant and his brother admitted to owning the jackets. Williams further testified that four recently discharged .38 caliber bullet casings were found at the scene. Rios’ statement recounted that the defendant previously had possessed a .38 caliber gun. In addition, a forensic analysis of the defendant’s jacket detected the presence of lead, one of the major components of gunshot residue, at the opening of the jacket’s left-hand pocket. Williams testified that the defendant is left-handed. Finally, Williams testified that the shooting occurred on a busy side street in a residential neighborhood, and eyewitness testimony established the presence of adults and children in the area of the shooting.

On the basis of the foregoing, it was reasonable for the jury to conclude that the defendant had fired a .38 caliber firearm four times, and that such conduct recklessly created a risk of serious physical injury and evinced an extreme indifference to human life. In addition, even if the jury determined that the defendant did not fire a gun, it could reasonably have concluded that he actively participated in a planned confrontation and shoot-out with members of the Twiss Street gang on a busy street in the midst of a heavily populated residential neighborhood with adults and children present. It was reasonable for the jury to conclude that such conduct recklessly created a risk of serious physical injury and that it evinced an extreme indifference to human life. See, e.g., State v. Hart, 118 Conn. App. 763, 781, 986 A.2d 1058 (“[t]he defendant’s conduct, in which he facilitated and participated in a confrontation between a victim and four masked individuals, one armed . . . on a dead-end residential street, evidenced an extreme indifference to human life . . . [and the] jury had sufficient evidence to support the defendant’s conviction of reckless endangerment in the first degree”), cert. denied, 295 Conn. 908, 989 A.2d 604 (2010).

C

The defendant next claims that the evidence adduced at trial was insufficient to sustain his conviction of carrying a pistol without a permit in violation of § 29-35. In relevant part, § 29-35 (a) provides: “No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same . . . .” General Statutes § 29-35 (a). Thus, to obtain a conviction for carrying a pistol without a permit, the state was required to prove beyond a reasonable doubt that the defendant (1) carried a pistol, (2) for which he lacked a permit, (3) while outside his dwelling house or place of business. See State v. L’Minggio, 71 Conn. App. 656, 672, 803 A.2d 408, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002). The defendant does not challenge the jury’s conclusion that he was without a permit to carry a pistol; rather, the defendant claims that the evidence presented was insufficient to show beyond a reasonable doubt that he carried a pistol and that he did so while outside of his dwelling house. We disagree.

As discussed in part IA of this opinion, the defendant admitted to police that he was at the scene of the shooting with his brother and Witherspoon, and circumstances permitted the reasonable inference that he, or one member of his group, had fired a .38 caliber pistol four times at members of the Twiss Street gang. In addition, no gun was found at the scene or at the defendant’s home, and the jury heard that forensic tests of the defendant’s jacket found traces of lead, one of the major components of gunshot residue, at the opening to the left-hand pocket.

On the basis of this evidence and reasonable inferences drawn therefrom, the jury reasonably could have concluded that the presence of lead in the defendant’s coat pocket was attributable to gunshot residue and had been deposited on the jacket at or near the scene of the shooting. Although evidence of lead without the presence of barium and antimony arguably is inconsistent with gunshot residue and may have supported the defendant’s claim of innocence, “it is not the province of this court to determine whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. Rather, we must determine whether there is a reasonable view of the evidence that supports the court’s judgment of guilty.” State v. Santos, 104 Conn. App. 599, 614, 935 A.2d 212 (2007), cert. denied, 286 Conn. 901, 943 A.2d 1103, cert. denied, 555 U.S. 851, 129 S. Ct. 109, 172 L. Ed. 2d 87 (2008).

After a thorough review of the evidence and the reasonable inferences it permitted, we conclude that there was sufficient evidence adduced at trial to support the defendant’s conviction of conspiracy to commit assault in the first degree by means of a deadly weapon or dangerous instrument in violation of §§ 53a-48 and 53a-59 (a) (1), conspiracy to commit assault in the first degree with intent to cause physical injury to another person by means of the discharge of a firearm in violation of §§ 53a-48 and 53a-59 (a) (5), reckless endangerment in the first degree in violation of § 53a-63 and carrying a pistol without a permit in violation of § 29-35.

II

The defendant next claims that the court improperly admitted evidence of his prior uncharged misconduct. Specifically, the defendant contends that the statement given to police by his friend, Rios, was (1) not relevant because it did not advance the state’s burden of proof and was given four months prior to the incident in issue and (2) its limited probative value was outweighed by its prejudicial effect because (a) it cast the defendant as a drug-using, gun toting criminal with a proclivity for shooting people and (b) evidence of motive readily was available in less prejudicial form through the defendant’s own words as related by Williams. We disagree.

The following additional facts are germane to the defendant’s claim. Prior to trial, the state sought to introduce a statement that was given to police by Rios on January 18,2008, to establish the defendant’s motive on April 30,2008. Although the statement was typewritten by Detective Richard Baustien of the Meriden police department, Rios initialed it at the top and signed his name at the bottom. The defendant filed a motion in limine to preclude this statement, and the court held a hearing.

At the hearing, Rios testified that he remembered giving a statement on January 18, 2008, but had no recollection of what he had said. He further testified that on that day he had been drinking heavily, smoking marijuana and crack, and was not in the proper frame of mind to give an accurate statement. Additionally, he variably testified that he had been, and had not been, threatened by police to give the statement. Pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), the court first determined that the statement was sufficiently reliable. Then, after hearing argument by counsel on its relevance and prejudicial effect, the court admitted Rios’ statement into evidence. The court issued a limiting instruction immediately before the statement was read to the jury and again after Baustien testified as to Rios’ state of mind at the time he gave the statement. A final limiting instruction was given during the court’s final instructions to the jury.

“The principles guiding our review of a trial court’s decision to admit prior uncharged misconduct evidence are well settled. Evidence of a defendant’s uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime. . . . Exceptions to this rule have been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. ... To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Citations omitted; internal quotation marks omitted.) State v. Millan, supra, 290 Conn. 830.

“The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . [T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant . . . [who] must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Dougherty, 123 Conn. App. 872, 877, 3 A.3d 208, cert. denied, 299 Conn. 901, 10 A.3d 521 (2010). With these principles in mind, we turn to the defendant’s claims.

A

The defendant first challenges the relevance of the information contained in the Rios statement. The defendant contends that the statement, specifically Rios’ reference to the defendant’s use of drugs, his involvement in a shooting at an unidentified approaching crowd four months prior, his possession of a box of twenty-five millimeter bullets, his plans to shoot someone or guests at “some girl Desire’s house” and his confession to two other shootings in town, was not relevant to the defendant’s motive. We agree that the references to an episode of the defendant’s drug use four months prior to the shooting and his claimed responsibility for two other shootings in town were not relevant and material to the defendant’s motive. We conclude, however, that the defendant has not met his burden of establishing that it is more probable than not that the court’s decision to allow the two references into evidence affected the result of his trial. We further conclude that the balance of the information contained in Rios’ statement was relevant and material to the defendant’s motive on April 30, 2008.

“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.) State v. Allen, 289 Conn. 550,562,958 A.2d 1214 (2008). “Evidence is material where it is offered to prove a fact directly in issue or a fact probative of a matter in issue. . . . Materiality is determined by the pleadings (or information) and the applicable substantive law.” (Internal quotation marks omitted.) State v. Dougherty, supra, 123 Conn. App. 877-78.

In the amended information filed by the state, the defendant was accused of, among other things, conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (1) and (5). As discussed in part I A of this opinion, conspiracy is a specific intent crime, and rarely is there direct evidence of a defendant’s intent. The state, therefore, offered Rios’ statement to prove that the defendant had a motive to commit assault in the first degree, making it more likely that he harbored the intent to commit assault in the first degree. Accordingly, in order for Rios’ statement to be relevant and material, it had to show, even to a slight degree, that the defendant had a motive to engage in a conspiracy to commit assault in the first degree.

We conclude that the court abused its discretion in determining that the portions of Rios’ statement referring to an isolated episode of the defendant’s drug use and the defendant’s responsibility for two other shootings in town were relevant to the defendant’s motive. In his statement, Rios stated that “[he] went to [the defendant’s] house on Broad Street and . . . played video games (Madden 08) and smoked some ‘piff which is weed.” The state did not allege that the defendant was addicted to drugs or that drug trade factored into the animosity that existed between the New Haven boys and the Twiss Street gang. Cf. State v. Ali, 92 Conn. App. 427, 434, 886 A.2d 449 (2005) (evidence of defendant’s ongoing drug problem highly probative of his intent and motive to commit burglary that resulted in murder), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006); State v. Fisher, 82 Conn. App. 412,431,844 A.2d 903 (evidence of defendant’s drug addiction and use of drugs on day of alleged crime probative of motive to commit larceny), cert. denied, 269 Conn. 911, 852 A.2d 741 (2004). Additionally, we are unable to discern how the defendant’s admission to two other unspecified shootings in town was probative of the defendant’s motive. There are no facts to indicate that the defendant committed these other shootings with his brother or Witherspoon or that members of the Twiss Street gang had been targeted. These two references were not relevant and, thus, did not render the existence of a motive more probable.

We further conclude that the court did not abuse its discretion in determining that the balance of the evidence contained in Rios’ statement was relevant to the defendant’s motive. Rios’ statement recounted that on a prior occasion Witherspoon provided the defendant with a .32 or .38 caliber firearm that was used to shoot twice at an approaching group of people. The statement recounted that the defendant felt threatened before that shooting and had been involved in a fight with members of the Twiss Street gang the day prior to that shooting, permitting the reasonable conclusion that the defendant had identified members of the Twiss Street gang approaching and shot at them. This evidence directly was probative of the defendant’s motive and intent to commit assault in the first degree in April, 2008.

Rios’ statement further recounted that the gun used in the prior shooting incident was then given back to Witherspoon, who took it back to New Haven. Rios explained that the defendant possessed a box of twenty-five millimeter bullets, intended to acquire a new gun and anticipated that Witherspoon was going to return to Meriden with a gun. Finally Rios recounted that “[t]hey were going to shoot somebody or shoot up a party that was going on tonight or tomorrow at some girl Desire’s house.” All of this evidence, which described the interaction of the defendant and Witherspoon in acquiring weapons and their intent to commit another shooting, was probative of the existence of a conspiracy and tended to make the existence of the defendant’s motive in April, 2008, more probable.

To the extent that the court abused its discretion by admitting the references to the isolated incident of the defendant’s prior drug use and the defendant’s claim to have committed two other unspecified shootings in town, we conclude that the defendant has not carried his burden of establishing that “it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Dougherty, supra, 123 Conn. App. 877. Adorno testified that he heard gunshots and saw three individuals, two of whom were wearing distinctive jackets belonging to the defendant and his brother, holding their hands in a shooting posture. Williams testified that there was a significant level of animosity between the New Haven boys and the Twiss Street gang, and the defendant’s admission that he had encountered people with whom he had a “beef’ at the scene of the shooting permitted the reasonable inference that they were members of the Twiss Street gang. Four recently discharged shells were found at the scene, and forensics evidence established the presence of lead, a major component of gunshot residue, in the left-hand jacket pocket of the defendant, who is left-handed. We cannot say that in the face of such evidence, it is more probable than not that the jury was affected by the two isolated irrelevant portions of Rios’ statement.

B

Relying on State v. Collins, 111 Conn. App. 730, 743, 961 A.2d 986 (2008), cert. granted, 290 Conn. 911, 964 A.2d 546 (2009), the defendant next asserts that the limited value of the portions of Rios’ statement that were probative was outweighed by its prejudicial effect because (1) it cast the defendant as a gun toting criminal with a proclivity for shooting people and (2) evidence of the defendant’s motive was readily available in less prejudicial form through the testimony of Williams. We are not persuaded.

“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 court bears the primary responsibility for conducting the balancing test to determine whether the probative value outweighs the prejudicial impact, and its conclusion will be disturbed only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Zubrowski, 101 Conn. App. 379, 394-95, 921 A.2d 667 (2007), appeal dismissed, 289 Conn. 55, 956 A.2d 578 (2008), cert. denied, 555 U.S. 1216, 129 S. Ct. 1533, 173 L. Ed. 2d 663 (2009).

“Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Conn. Code Evid. § 4-3. Unfair prejudice occurs “where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy . . . .” State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982); see also State v. Crafts, 226 Conn. 237, 255, 627 A.2d 877 (1993) (“[t]he 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”). “Such undue prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” (Internal quotation marks omitted.) State v. Allen, supra, 289 Conn. 564.

We cannot conclude that the court abused its discretion in balancing the probative value and prejudicial effect of Rios’ statement. The statement did not unduly distract the jury, consume an undue amount of time or surprise the defendant. Furthermore, it was not of such a nature as to unduly arouse the emotions, hostility or sympathy of the jury. The defendant’s reliance on State v. Collins, supra, 111 Conn. App. 743, is misplaced. The facts of that case are distinguishable from the present case. In Collins, the defendant was charged with murder, felony murder and robbery in the first degree in connection with a shooting death. Id., 732. At trial, the court admitted detailed evidence that, on a prior occasion, the defendant had been involved in a separate and distinct shooting of his cousin’s husband. Id., 734-36. On appeal, this court determined that it was an abuse of discretion to admit detailed evidence of another shooting involving the defendant because the evidence was relevant only to the extent that it showed that the defendant previously had owned a gun that produced shell casings matching the ones found. Id., 743. As such, this court determined that the irrelevant details of the other shooting unduly aroused the emotions of the jury. Id.

In the present case, however, the defendant’s prior uncharged misconduct concerned a confrontation with the Twiss Street gang and, with the exception of the isolated reference to the defendant’s drug use and prior involvement in two unspecified shootings, it was relevant to the defendant’s motive to engage in a conspiracy to commit assault in the first degree on April 30, 2008. Rios’ statement recounted that the defendant previously had obtained a gun from Witherspoon that he and his brother used to shoot at an approaching crowd the day after a fight with members of the Twiss Street gang. The statement also recounted that the defendant already possessed bullets, planned on acquiring a new gun that he would use to shoot somebody else and that With-erspoon was bringing the gun used on the previous occasion back to Meriden that day. This evidence was highly probative of the presence of a conspiracy between the defendant, his brother and Witherspoon, and, when analyzed in the context on the ongoing dispute between the two groups, established a motive for the April 30, 2008 shooting.

We also note that the court gave the jury a limiting instruction three times dming the course of the trial. “[W]hen the trial court has heard a lengthy offer of proof and arguments of counsel before performing the required balancing test, has specifically found that the evidence was highly probative and material, and that its probative value significantly outweighed the prejudicial effect, and has instructed the jury on the limited use of the evidence in order to safeguard against misuse and to minimize the prejudicial impact ... we have found no abuse of discretion . . . .” (Internal quotation marks omitted.) State v. Lynch, 123 Conn. App. 479, 492-93, 1 A.3d 1254 (2010). “Absent evidence to the contrary, we presume that the jury followed the court’s limiting instruction.” (Internal quotation marks omitted.) Id., 493-94. Under these circumstances, we cannot conclude that the court abused its discretion in balancing the probative and prejudicial effect of Rios’ statement.

The judgment is affirmed.

In this opinion the other judges concurred.

       Subsequent to closing argument and prior to the jury charge, the state filed an amended information withdrawing one count of unlawful discharge of a firearm in violation of General Statutes § 53-203.

       The questioning of Adorno was conducted through an interpreter. Adorno testified, in part, as follows:
      “[Defense Counsel]: When you claim that you look out your rearview mirror and you see some party shooting, a shooting, you hear the sound of shooting. Isn’t that correct?
      “[The Witness]: Yes. I heard and I saw those three like that.

      “[Defense Counsel]: Okay. So, his testimony is that he sees everyone having their hands like this, but he sees no weapon. Is that correct?
      “[The Interpreter]: I’m sorry. Can you — can—
      “[Defense Counsel]: His testimony is that he sees all of the individuals with their hands in some type of manual position like this, but he’s unable to see what any individual has in their hands. Is that correct?
      “[The Witness]: No. No, but I heard the sound.
      “[Defense Counsel]: Correct. So, you heard the sounds, but by just hearing the sounds, that could’ve just been one individual shooting a gun. Isn’t that correct?
      “[The Witness]: I know that there were three.
      “[Defense Counsel]: Three individuals present?
      “[The Witness]: Yes. Three persons.
      “[Defense Counsel]: Okay. But he’s unable to identify that there were any weapons. Isn’t that correct?
      “[The Witness]: No. At no time.” (Emphasis added.)

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Fung Kwok, a scientist at the state forensic science laboratory, testified that gunshot residue is composed of particles from three major elements: lead, barium and antimony. Kwok also testified that gunshot residue, like chalk powder from a blackboard, readily can be washed and wiped away. Kwok explained that a gunshot residue test will recover significantly less of the three major elements if the test sample is taken more than four hours after the firing of a gun. Kwok testified that it is for this reason that a negative gunshot residue test does not indicate conclusively that a person did not fire a gun. Further, a gunshot residue test that returns a positive result for lead only is not conclusive proof that a person fired a gun, as lead is a very common element in the environment.

       At sentencing, the court merged the conviction on the two conspiracy counts.

       The defendant summarily asserts, without analysis or citation to legal authority, that Rios’ statement “was inherently unreliable because it was given when Robert Rios was under the influence of alcohol or drugs . . . “[A]s we have stated on occasions too numerous to recite, mere abstract assertions, unaccompanied by reasoned analysis, will not suffice to apprise a court adequately of the precise nature of a claim.” (Internal quotation marks omitted.) State v. Davis, 90 Conn. App. 263, 273, 876 A.2d 1265, cert. denied, 275 Conn. 928, 883 A.2d 1247 (2005). “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Mims, 61 Conn. App. 406, 410, 764 A.2d 222, cert. denied, 255 Conn. 944, 769 A.2d 60 (2001). Accordingly, we deem this claim abandoned.

       The statement consisted of the following: “I Robert Rios am [eighteen] years old and I have lived in West Haven for the past four years. I went to school until the [eleventh] grade. I can read/write English. I don’t have a job right now.
      “Today I came to Meriden from New Haven at around 12:30 p.m. and met up with my friend, [the defendant], who I consider to be my best friend. I have known [the defendant] for about [three] years. I went to [the defendant’s] house on Broad Street and I believe the apartment is A-l. We played video games (Madden 08) and smoked some ‘piff which is weed. [The defendant] started to tell me what happened the last couple of days. He said that he and his brother, [Tavonne], got into a fight on Wednesday after school with a group of guys from the Twiss [Street] gang. He went home with his brother after that.
      “[The defendant] said that he was at home on Thursday after school with [Tavonne] and was standing outside when a group of guys and girls were walking towards his house. [The defendant] said that he felt threatened so he pulled out his gun and fired two shots at the crowd but nobody got hit. [The defendant] then ran into his house. [The defendant] said it was either a 38 or 32 revolver gun and he told me his cousin, Trevor Witherspoon, brought it up from New Haven. I think that [the defendant] called Trevor down in New Haven and he came to Meriden. [The defendant] gave Trevor the gun and he took it back to New Haven.
      “[The defendant] showed me a box of [twenty-five millimeter] bullets that he has in his apartment. He said he was supposed to buy a new gun today. [The defendant] also said that Trevor was coming back up to Meriden tonight with the gun. They were going to shoot somebody or shoot up a party that was going on tonight or tomorrow at some girl Desire’s house. [The defendant] also said that he did two other shootings in town.”

       The court’s ruling, in relevant part, stated: “[T]he court understands that the one component of uncharged misconduct the state is relying upon is motive. And I think it’s important to note these two separate instances. The slate alleges in their information that [the defendant] was involved with a conspiracy to commit assault with a weapon on or about April 30, 2008, in the city of Meriden. Involved in the information are the names of some of the alleged coconspirators, one of which is Trevor Witherspoon. The incident is also alleged that [the defendant] unlawfully discharged a weapon and was carrying a pistol without a permit and reckless endangerment. Now, the statement that is in evidence from Mr. Rios is close in time to the trial here, which is the April 30 incident. This is an incident that happened in January, 2008. So, four months is close in time. It apparently happened in the same city, Meriden, and the court notes with interest that, again, the name of Trevor Witherspoon is mentioned in this statement. It is also stated by Mr. Rios that [the defendant], and I’m quoting from the statement, ‘[the defendant] said [that] he felt threatened so he pulled out his gun and fired two shots at the crowd but nobody got hit’
      “So, in balancing the probative value and the prejudicial [effect], the court is going to allow this in as uncharged misconduct. The court will give the appropriate limiting instruction, and the jury could, you know, give it whatever weight [it sees] fit.”

       We note, however, that at trial the defendant did not specifically identify and ask to have these two portions of Rios’ statement excluded or redacted as irrelevant, immaterial or too prejudicial.

       We note also that in its brief to this court, the state failed to make any argument supporting a conclusion that the defendant’s drug use was probative of motive. Additionally, at oral argument before this court the state recognized that “parts of the statement do seem to be irrelevant.”

       We note that our Supreme Court granted certiorari on the question: “ ‘Did the Appellate Court properly conclude that the trial court abused its discretion when it admitted evidence of the defendant’s involvement in a prior shooting?’ ” State v. Collins, 290 Conn. 911, 964 A.2d 546 (2009).


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALLEN LAMONT JAMES
    (AC 30910)
    Harper, Beach and Borden, Js.

      Argued October 27, 2010
    officially released January 25, 2011

      Robert E. Byron, special public defender, for the appellant (defendant).

      Paul J. Narducci, senior assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, David J. Smith, senior assistant state’s attorney, and Daniel Morelli, certified legal intern, for the appellee (state).
   Opinion

BORDEN, J.

In State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992) (Carpenter I), our Supreme Court articulated what it later characterized as “familiar language regarding proof beyond a reasonable doubt”; State v. Sivri, 231 Conn. 115, 131, 646 A.2d 169 (1994); namely, “that any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail. ” (Internal quotation marks omitted.) Carpenter I, supra, 84. This language, or language similar to it, had come to be known as the “two inference” instruction. See State v. Gant, 231 Conn. 43, 646 A.2d 835 (1994) (characterizing following language as “two inference” instruction: “If the jury views the evidence in the case as reasonably permitting either of two conclusions — one of innocence, the other of guilt — the jury should of course adopt the conclusion of innocence” [internal quotation marks omitted]), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131L. Ed. 2d 291 (1995). The sole question in this appeal is whether the court must, when requested, instruct the jury using this language, despite the fact that its instructions on proof beyond a reasonable doubt are otherwise proper. We answer this question in the negative and, accordingly, affirm the trial court’s judgment of conviction.

The defendant, Allen Lamont James, was charged in a substitute information with murder in violation of General Statutes § 53a-54a, capital felony in violation of General Statutes § 53a-54b (8), interfering with a police officer in violation of General Statutes (Rev. to 2003) § 53a-167a, engaging police in pursuit in violation of General Statutes § 14-223 (b) and reckless driving in violation of General Statutes § 14-222 (a). After a jury trial, the jury found him guilty of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), and of interfering with an officer in violation of § 53a-167a, engaging police in pursuit in violation of § 14-223 and reckless driving in violation of § 14-222. The court rendered its judgment of conviction and sentenced the defendant to an effective term of fourteen years of incarceration followed by four years of special parole. This appeal followed.

The jury reasonably could have found the following facts. In the early morning hours of December 28, 2003, Sergeant Brett Mahoney of the Waterford police department saw a vehicle, operated by the defendant, traveling from the Interstate 395 connector onto Route 32 at approximately 100 miles per hour. After a lengthy pursuit, Mahoney found the vehicle, with the front door open, stopped on a private driveway in front of a gate. The defendant had fled into the surrounding wooded area. After Mahoney called for assistance, the defendant was apprehended as he emerged from the wooded area and was brought back to the vehicle. A subsequent search of the wooded area yielded two plastic bags and a suitcase that contained the human remains of the defendant’s child, Alquan, which the defendant had taken out of the vehicle and left in the wooded area.

After the defendant’s arrest, and while he was in a police holding cell, he requested to speak with detectives. After being advised of his Miranda rights, the defendant gave two distinctly different versions regarding Alquan’s death.

The first version was that Alquan had a tendency to fall and hit his head, and that in the summer or fall of 2000, Alquan had fallen down and hit his head on a bed railing. The defendant took him out to a friend’s car, where he turned blue, whereupon the defendant took him back to his house and laid him down, but Alquan did not wake up. When asked whether he had ever struck Alquan, the defendant admitted that he had done so but continued to insist that Alquan’s death was an accident.

The second version was in response to a question by the police as to whether Alquan’s death was accidental, intentional, out of frustration or spontaneous. The defendant said that it was spontaneous. He said that Alquan had not been listening to him and that he grabbed Alquan, threw him across the room and against the wall two or three times, backhanded him across the chest or face, and manhandled him on the shoulder. He then administered chest compressions and attempted mouth-to-mouth resuscitation on Alquan, who did not respond. The defendant did not seek medical attention for Alquan or call 911.

The defendant stated that after Alquan’s death, he took his body in a suitcase to Santee, South Carolina, where he brought it to a vacant area, poured gasoline on it and lit it on fire. When the body did not bum, he put it into garbage bags, which he then put into a suitcase, put the suitcase into the trunk of his car, and eventually drove back to New London, where he kept the remains at his house. On several occasions, he had taken Alquan’s body out for rides, which is what he was doing when he was apprehended on December 28, 2003. He stated that, while being pursued by the police, he stopped the car and brought the suitcase into the wooded area with the intent of turning himself in and later returning to retrieve the suitcase.

The next day, December 29,2003, the defendant again asked to speak with detectives. He then gave a third version of Alquan’s death. This version was that he never intended to hurt Alquan but needed help in caring for him. He stated that Alquan was not eating and that the defendant forced him to eat. When Alquan refused and spit out the food, the defendant threw him on the bed, and Alquan bounced off and hit his head on the floor. He then forcibly pushed down on Alquan’s shoulders, and Alquan hit his head on the floor. When Alquan did not get up, he tried to perform mouth-to-mouth resuscitation, but Alquan did not respond. He then repeated the story of bringing Alquan’s body to South Carolina, unsuccessfully trying to bum it, and returning with it to Connecticut.

Through his own testimony at trial, the defendant gave a fourth version of Alquan’s death. This version was that one Sunday afternoon, as he was about to feed Alquan, Alquan collapsed in his hands. He laid Alquan down for about five minutes and then tried to resuscitate him. He did not seek medical attention or call 911. He then drove to South Carolina, where he tried to bum Alquan’s body. He also stated that he stomped on the body several times because it did not bum as he had anticipated.

The state medical examiner and a forensic anthropologist examined Alquan’s remains. This examination disclosed numerous fractures of various bones, including several fractures to the bones on each side of the head, fractures of the bone at the base of the skull, the lower jawbone, both collarbones, the second through the fifth ribs on the left side, and several finger bones. According to these witnesses, these injuries would have been caused by multiple blows and were inconsistent with falling from a bed or hitting one’s head on a bed rail. According to the medical examiner, the cause of death was multiple blunt injuries and the manner of death was homicide.

A medical examiner who also was an independent consultant dealing with forensic issues regarding deaths of children testified for the defense. After examining Alquan’s pediatric medical records, statements, police reports, photographs, the reports of the state medical examiner and the state’s forensic anthropologist, and Alquan’s remains, she was unable to determine the cause or manner of Alquan’s death because of the condition of the bones and the postmortem decomposition and disruption of the body, including the burning, stomping and movement of the body.

The defendant claims that the court improperly omitted from its instructions on the concept of reasonable doubt a “two inference” instruction. Specifically, he claims that, as he stated in his exception to the court’s instructions; see footnote 2 of this opinion; the court was required to instruct the jury that, “under State v. Carpenter, supra, [214 Conn. 84] the law require [s] the court to instruct the jury that ‘when evidence can be reasonably reconciled in two different ways, one consistent with guilt and one consistent with nonguilt, then the latter should be adopted by the jury and the defendant should be acquitted.’ ” Such instructional language, the defendant argues, is mandatory. We disagree.

We first note that the defendant does not challenge the court’s instructions on proof beyond a reasonable doubt, other than the omission of the “two inference” language. He thus implicitly concedes, and we agree, that in all other respects the court’s instructions were proper.

The defendant’s claim is foreclosed by our Supreme Court’s decision in State v. Gant, supra, 231 Conn. 47-50. In that case, the court specifically rejected the claim that so-called “two inference” language is mandatory in the context of a case in which the court has given “an otherwise proper instruction on the concept of reasonable doubt.” Id., 48. Put another way, the court squarely held in Gant that a trial court is not mandated to include “two inference” language in its instructions to the jury on the concept of proof beyond a reasonable doubt so long as its instructions on that concept are otherwise proper. Id.

The defendant relies, for his claim of the mandatory nature of the “two inference” language, on certain language culled from two other Supreme Court opinions, namely, Carpenter v. Commissioner of Correction, 290 Conn. 107,961 A.2d403 (2009) (Carpenter II), and State v. Sivri, supra, 231 Conn. 234. The defendant focuses on the following language from Carpenter II, supra, 112 n.4: “[T]he Carpenter [Z], [supra, 214 Conn. 77] principles have their primary operation as rules of law for the guidance of the fact finder”; (emphasis added; internal quotation marks omitted); and the following language from Sivri: “the jury, in sorting out the evidence and determining whether the state has proved its case beyond a reasonable doubt, must be instructed to, and must in fact, view the evidence in such a way that it cannot render a guilty verdict unless it is satisfied that the evidence meets the standards articulated in Carpenter [Z].” (Emphasis added.) State v. Sivri, supra, 134. We are not persuaded.

We first note that the court’s language in Carpenter II was simply part of a quotation from Sivri and was explicitly dictum because the court specifically noted that its reference to that language “plays no role in our decision in this habeas appeal . . . .” Carpenter II, supra, 290 Conn. 112 n.4. We therefore focus our attention on the language used by the court in Sivri, namely, both that the jury “must be instructed”; State v. Sivri, supra, 231 Conn. 134; in accordance with Carpenter I and that the Carpenter I principles constitute “rules of law”; (internal quotation marks omitted) Carpenter II, supra, 112 n.4.; for the jury’s guidance. We conclude that, to the extent that this language suggests, as it might if taken literally, that giving a jury instruction containing the “two inference” language is mandatory on the trial court, such a suggestion is inconsistent with the square holding in Gant and that, therefore, the holding in Gant trumps it. In other words, under Gant it is not mandatory that a trial court give a “two inference” instruction, or language similar thereto, so long as the court’s instructions on proof beyond a reasonable doubt are otherwise proper.

We reach this conclusion for two closely related reasons. First, as we have indicated, Gant is a square holding of the Supreme Court specifically rejecting the claim at issue in the present case. Second, the language in Sivri can best be characterized as dictum, given the holding of Gant, which was decided on the same day as Sivri. The issue in Sivri was not, as it was in Gant, whether the “two inference” language was mandatory on the trial court; it was, instead, whether there was sufficient evidence to sustain the defendant’s conviction, and it was in the context of the discussion of that issue that the court addressed the question of whether the “two inference” language was part of the appellate function of reviewing the sufficiency of evidence. Simply put, we conclude that, in using the language on which the defendant in the present case relies, the court in Sivri did not intend to undermine its concurrent holding in Gant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant in his brief to this court raised another issue, namely, whether the court had improperly instructed the jury that it need not be unanimous in finding the defendant guilty of manslaughter in the first degree. He withdrew that issue in oral argument before this court, however.

       In the present case, although the defendant did file a request to charge, the record does not reflect that the request included the language he now presents as mandatory. Nonetheless, he preserved the issue for appeal by taking an exception to its absence after the court had instructed the jury. See State v. Terwilliger, 294 Conn. 399, 406, 984 A.2d 721 (2009).

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes (Rev. to 2003) § 53a-167a (a) provides: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer or firefighter in the performance of such peace officer’s or firefighter’s duties.”

       General Statutes § 14-223 (b) provides in relevant part: “No person operating a motor vehicle, when signalled to stop by an officer in a police vehicle using an audible signal device or flashing or revolving lights, shall increase the speed of the motor vehicle in an attempt to escape or elude such police officer. . . .”

       General Statutes § 14-222 (a) provides in relevant part: “No person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. The operation of a motor vehicle ... at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle . . . shall constitute a violation of the provisions of this section. . . .”

       Alquan was the child of the defendant and Charleah White, and had been bom in March, 1998. The defendant had had custody of Alquan since shortly after his birth.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The specific language of the court regarding proof beyond a reasonable doubt was as follows: “The burden to prove the defendant guilty of any crime that you are asked to deliberate upon is on the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every essential element necessary to constitute the alleged crime being considered by you. Whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor on the quantity of the testimony, but on the nature and quality of the testimony.
      “The state has the burden of proving the defendant guilty beyond a reasonable doubt. Now, some of you may have served as jurors in civil cases where you were told it is necessary to prove only that a fact is more likely true than not true. In criminal cases, the state’s proof must be more powerful than that. It must be beyond a reasonable doubt.
      “A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence.
      “Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant’s guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.
      “If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime being considered, you must find him guilty. If, on the other hand, you are not firmly convinced of the defendant’s guilt, you must give the defendant the benefit of the doubt and find him not guilty.”

       The author of this opinion was also the author of Sivri when he was then a member of the Supreme Court. See State v. Sivri, supra, 231 Corm. 116.

       Both Sivri and Gant were decided on August 23, 1994 See State v. Sivri, supra, 231 Conn. 116; State v. Gant, supra, 231 Conn. 44. We note, further, that this court previously has been required to resolve an apparent conflict between diverging lines of Supreme Court authority. See, e.g., Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 49-52,467 A.2d 944 (1983), cert. denied, 192 Conn. 801, 470 A.2d 1218 (1984).


author: SULLIVAN, J.

text:
    PETER F. CORRIVEAU v. ANDREA H. CORRIVEAU
    (AC 30938)
    Gruendel, Alvord and Sullivan, Js.

      Argued October 15, 2010
    officially released January 25, 2011

      John Serrano, for the appellant (defendant).

      Stephen D. Jacobs, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendant, Andrea H. Corriveau, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Peter F. Corriveau. On appeal, she claims that the court improperly (1) failed to canvass her sua sponte concerning her competency to proceed with self-representation, (2) prematurely terminated her right to cross-examine and to present evidence, and (3) failed to provide guidance on the presentation of evidence at trial. We affirm the judgment of the trial court.

The record contains the following facts. The parties were married on June 2, 1979. The plaintiff filed the complaint for dissolution on June 23, 2006, and the defendant filed a cross complaint on July 5, 2006. The matter proceeded to a two day trial on December 4 and 5, 2008, and, on March 9, 2009, the court found that the marriage had broken down irretrievably and rendered judgment of dissolution. The court ordered the parties’ assets divided and the plaintiff to pay the defendant $275 per week in alimony, as well as to provide her with health insurance. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court violated her constitutional right of access to the court by failing to inquire sua sponte into her competency in representing herself. Specifically, the defendant argues that the evidence that she suffered from multiple sclerosis, as well as the court’s observations during trial that some of the defendant’s statements were confusing, triggered an obligation of the court to canvass her, similar to the canvass required in a criminal case involving a self-represented party, regarding her competency and the voluntariness of her waiver of counsel. The defendant requests review of her unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or alternatively, our supervisory authority over the administration of justice or the plain error doctrine. See Practice Book § 60-5. The defendant cannot prevail under Golding, and we disagree that her claim merits reversal under either our supervisory authority or the plain error doctrine.

“Our Supreme Court held in Golding that a party can prevail on an issue not preserved at trial only if all of the following four conditions are met: (1) the record is adequate to review the claim; (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 appellant 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. ... If any one of these conditions is not met, the appellant cannot prevail. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. . . . Golding applies to civil as well as criminal cases.” (Citations omitted; internal quotation marks omitted.) In re Shyliesh H., 56 Conn. App. 167, 177-78, 743 A.2d 165 (1999).

The first claim satisfies the first and second prongs of Golding and is therefore reviewable. The claim, however, fails to satisfy the third prong of Golding because the defendant has not shown that a constitutional violation clearly exists.

The defendant argues that the evidence of her illness and the difficulty the court sometimes had in understanding the meaning of her questions or statements at trial triggered a duty of the court to perform some kind of canvass. We disagree that the defendant demonstrated any evidence that would trigger a duty to inquire into her competency. As such, we do not consider whether, under other circumstances, the failure to inquire into a civil litigant’s competency to proceed as a self-represented party would have due process implications.

Our review of the record reveals that although there were several instances in which the court noted that the defendant’s statements or questions were confusing, these instances are overshadowed by the extensive questions and testimony that the defendant successfully presented. The record, furthermore, does not support the defendant’s contention that she was unable to present her case at trial. Through cross-examination of the plaintiffs witnesses, the defendant brought several relevant issues before the court, such as the repair work needed to the parties’ home to prepare it for sale and the history of supporting the plaintiff through career changes, as well as the defendant’s contributions to raising their child. We also note that the defendant was represented by counsel prior to trial and that the defendant showed her familiarity with court procedures through filing multiple motions both before and after trial. Accordingly, the court had no basis for raising the issue of the defendant’s competency sua sponte, and, therefore, the defendant cannot show that her constitutional rights were clearly violated.

II

The second claim raised by the defendant is whether the court violated her right to due process by prematurely ending her cross-examination of the plaintiff and her own direct testimony. The defendant again requests review of her unpreserved claim under State v. Golding, supra, 213 Conn. 239-40, or, alternatively, requests reversal pursuant to our supervisory authority or the plain error doctrine. As with the first claim, the second claim fails under the third requirement of Golding, and we disagree that it merits reversal under our supervisory authority or the plain error doctrine. See footnote 1 of this opinion.

The first two Golding requirements are met, in that the record is adequate for our review and the claim is of constitutional magnitude because the defendant alleges that the premature termination of her right to cross-examine and to present evidence violated her due process right to access the courts. The defendant, however, has not shown that her constitutional rights were clearly violated or that she was deprived of a fair trial.

At trial, the defendant cross-examined the plaintiff concerning numerous issues, throughout which the attorney for the plaintiff raised objections, usually as to relevancy. The court gave broad latitude to the defendant in her questioning, overruling several such objections. The court also had to remind the defendant to ask questions rather than to testify, explaining that she would have a chance to give her testimony on direct examination. Following several such redirections by the court and extensive cross-examination on a variety of issues, the court ended the cross-examination. On direct, the defendant’s monologue style testimony included few interruptions by the plaintiff or the court. Her testimony covered a wide-ranging scope. When the defendant indicated that she had concluded her direct testimony, the attorney for the plaintiff asked her a few questions on cross-examination. Finally, on redirect, the court ended the defendant’s testimony because she was not addressing the issues raised during the plaintiffs cross-examination of her.

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. . . . Although it is axiomatic that the scope of cross-examination generally rests within the discretion of the trial court, [t]he denial of all meaningful cross-examination into a legitimate inquiry constitutes an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Dubreuil v. Witt, 65 Conn. App. 35, 42, 781 A.2d 503 (2001).

“The basic purpose of redirect examination is to enable a witness to explain and clarify relevant matters in his testimony which have been weakened or obscured by his cross-examination. . . . The scope of redirect examination, however, is limited by the subject matter of cross-examination. . . . Furthermore, [t]he extent and scope of redirect examination . . . may be limited within the discretion of the trial judge.” (Citation omitted; internal quotation marks omitted.) Ravenswood, Construction, LLC v. F. L. Merritt, Inc., 105 Conn. App. 7, 19-20, 936 A.2d 679 (2007).

The defendant claims that the decision in Szot v. Szot, 41 Conn. App. 238, 674 A.2d 1384 (1996), applies to the present case. In Szot, the court, despite the protests of the plaintiffs counsel that she still had additional evidence to present, ended not only cross-examination but also the entire presentation of evidence. Id., 240. This court held that the trial court’s termination of the proceedings violated the plaintiffs due process right to be heard. Id., 242. In the present case, unlike in Szot, the termination of cross-examination of the plaintiff was followed by the direct testimony of the defendant, rather than a termination of the entire proceeding.

Our careful review of the record reveals that the court gave tremendous latitude to the defendant throughout the trial. Although the defendant argues that she was unable to bring several relevant pieces of information before the court, she identifies no point in the record, particularly during her lengthy direct testimony, where the court prohibited the introduction or discussion of those issues. Although, as addressed in part III of this opinion, the defendant was under a misapprehension concerning whether certain documentary evidence would be reviewed by the court, nothing in the record suggests that, had the defendant been allowed even greater latitude and more time, she would have presented the evidence that she complains she had no opportunity to bring before the court. She had ample opportunity to present any relevant evidence. The court must have control over the proceedings, and the court properly ended the defendant’s questioning of the plaintiff and the defendant’s testimony on redirect after several warnings for her to comply with the rules of practice.

Ill

The defendant finally claims that the court abused its discretion by failing to provide the defendant with meaningful guidance on the presentation of evidence. The defendant argues that the court inadequately guided her when it did no more than tell her that she was “ ‘entitled to present [documents] in a legal manner’ ” and that she could have them marked for identification. We disagree.

“[A]though we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” (Internal quotation marks omitted.) Watkins v. Thomas, 118 Conn. App. 452, 456, 984 A.2d 106 (2009). “For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Internal quotation marks omitted.) Shobeiri v. Richards, 104 Conn. App. 293, 296, 933 A.2d 728 (2007).

This issue lies solely within the sound discretion of the court and will only be reversed on appeal on a showing of an abuse of that discretion. No such showing can be made in the present case. Throughout the proceedings, the court gave significant leeway to the defendant, especially during her direct testimony, when the court allowed her to discuss numerous issues, often over the objection of the plaintiff. Although she was unsuccessful at presenting one particular piece of evidence, which she claims on appeal was particularly significant to the resolution of her claim, nothing in her lengthy testimony explained any of the documents that she sought to present to the court. Within its discretion, the court might have “made inquiries to clarify the responses of the various witnesses,” such as in McGuire v. McGuire, 102 Conn. App. 79, 85, 924 A.2d 886 (2007), but it did not abuse its discretion in refusing to provide farther assistance to the defendant in presenting her evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . [See] Practice Book § 60-5. . . . [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . (Citations omitted; internal quotation marte omitted.) Smith v. Andrews, 289 Conn. 61, 79, 959 A.2d 597 (2008). The defendant’s claim does not merit reversal under either of these rarely applied doctrines.