State v. Franklin , 175 Conn. App. 22 ( 2017 )

STATE OF CONNECTICUT v. ZACHERY FRANKLIN
(AC 39180)
DiPentima, C. J., and Keller and Beach, Js.
Syllabus
Convicted of multiple crimes as a result of the shooting death of the victim
in the city of Waterbury, the defendant appealed, claiming, inter alia,
that the evidence was insufficient to sustain his conviction of murder
and criminal possession of a firearm, and that the trial court abused its
discretion by admitting certain uncharged misconduct evidence. The
defendant and another individual had exited a black Acura automobile,
approached a motorcycle that was parked in a driveway, and, from a
distance of about eight and one-half feet, shot its operator to death. The
shooting continued as the motorcycle crashed into a stop sign. The next
day, the defendant and another individual, S, who had been with the
defendant in Waterbury the previous day, were seen in New Haven
shooting handguns before driving off in a black Acura. Bullet evidence
recovered there by the police matched bullet evidence that they recov-
ered at the murder scene. S was later arrested and implicated the defen-
dant in the murder. The police also developed evidence that during the
events leading up to the murder, the defendant had a cell phone that
was owned by S’s sister, I. While the defendant was incarcerated and
awaiting trial, he told another individual, H, who was incarcerated in
the same correctional center and who testified at the defendant’s trial,
that he had killed the victim for the purpose of stealing the victim’s
motorcycle and a neck chain that the victim wore. Held:
1. Contrary to the defendant’s claim, the evidence was sufficient to support
his conviction of murder: the evidence supported the jury’s finding that
the defendant was one of the individuals who exited the Acura and shot
at the victim, as H testified that the defendant told him while they were
incarcerated together that he exited the Acura and shot the victim in
an attempt to rob him, and that the defendant stated that he was linked
to the shooting as a result of both S’s having spoken to the police, and
the recovery by the police of video footage and firearms evidence,
and the jury in turn credited H’s testimony regarding the defendant’s
confession; furthermore, the jury’s finding that the defendant possessed
the intent to kill the victim was supported by evidence that the defendant
wanted to rob the victim of the motorcycle and the chain that the victim
wore, that the defendant fired several gunshots at the motorcycle from
a distance of eight and one-half feet, and that he fled from the shooting
scene without providing medical assistance to the victim and was in
possession of false identification when he was detained by the police.
2. There was sufficient evidence to support the defendant’s conviction of
criminal possession of a firearm, the parties having stipulated at trial
that the defendant had been convicted of a felony prior to the shooting
of the victim, and the evidence having been sufficient for the jury to
find that the defendant was one of the individuals who had exited the
Acura and shot at the victim while he was on the motorcycle.
3. The trial court did not abuse its discretion when it admitted uncharged
misconduct evidence, offered by the state to demonstrate that the defen-
dant possessed a firearm that was used in the victim’s shooting in
Waterbury, that included a photograph of a crime scene in New Haven
that depicted police tape and testimony that the defendant, on the day
after the shooting in Waterbury, possessed and fired a weapon in the
back of a building in New Haven: in light of the details of the crimes
at issue in this case, evidence that the defendant possessed and dis-
charged a firearm in the back of a building would not unduly arouse
the emotions, hostility or sympathy of the jury, as the court heard oral
argument from the parties, considered their motions and briefs, and
prevented the jury from hearing the most inflammatory details of the
uncharged misconduct evidence; furthermore, the probative value of
the misconduct evidence outweighed its prejudicial effect because it
helped identify the defendant as a shooter in Waterbury, the court
instructed the jurors to refrain from considering the police tape in the
photograph taken in New Haven, and there was ample testimony that
the police investigated that location after a report that gunshots had
been fired there.
4. The defendant could not prevail on his claim that his right to a fair
trial was violated when the prosecutor made certain allegedly improper
remarks during closing argument to the jury: although the prosecutor’s
incorrect statement that a witness testified that two men approached
the motorcycle after it crashed into a stop sign may have been improper,
it did not appear to have been intentional, the defendant did not object
to the comment when it was made, the comment was only a small part
of the prosecutor’s summation and was not related to a critical issue
in the case, and the state’s case against the defendant was strong;
furthermore, the prosecutor’s comments that the defendant possessed
and used a certain phone belonging to I during the events leading up
to the murder, and that H’s testimony included an admission by the
defendant that he shot the victim and took the victim’s neck chain were
based on evidence, and although the prosecutor’s characterization of
the neck chain was not part of the evidence, it did not violate the
defendant’s right to due process.
Argued February 6—officially released July 25, 2017
Procedural History
Substitute information charging the defendant with
the crimes of murder, felony murder, attempt to commit
robbery in the first degree, conspiracy to commit rob-
bery in the first degree and criminal possession of a
firearm, brought to the Superior Court in the judicial
district of Waterbury and tried to the jury before Crem-
ins, J.; thereafter, the court sustained in part the defen-
dant’s objection to the admission of certain evidence;
verdict of guilty; subsequently, the court denied the
defendant’s motion for a judgment of acquittal and for
a new trial, and rendered judgment in accordance with
the verdict; thereafter, the court vacated the conviction
of felony murder, and the defendant appealed.
Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and David A. Gulick, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Zachery Franklin,
appeals from the judgment of conviction, following a
jury trial, of murder, in violation of General Statutes
§ 53a-54a, attempt to commit robbery in the first degree
in violation of General Statutes §§ 53a-49 (a) (2) and
53a-134 (a) (2), conspiracy to commit robbery in the
first degree in violation of General Statutes §§ 53a-8 (a)
and 53a-134 (a) (2), and criminal possession of a firearm
in violation of General Statutes § 53a-217 (a) (1).1 On
appeal, the defendant claims that (1) the evidence was
insufficient to sustain his conviction of murder and
criminal possession of a firearm, (2) the court abused its
discretion by admitting certain uncharged misconduct
evidence and (3) his right to a fair trial was violated as
a result of prosecutorial impropriety. We disagree, and,
accordingly, affirm the judgment of conviction.
The jury reasonably could have found the following
facts. During the evening of July 7, 2011, James Beaulieu
rode on a two seat, three-wheeled motorcycle known
as a T-Rex2 driven by the victim, Luis Cruz. The two
returned to Boyden Street in Waterbury, where Beau-
lieu had parked his motorcycle. At approximately 1:30
a.m. on July 8, 2011, Adam Maringola, who was working
in a nearby building, heard a loud noise and watched
as the victim pulled into a driveway and stopped briefly.
Maringola observed a black Acura near the T-Rex.
He then saw two people exit the Acura and walk toward
the T-Rex. The victim became alarmed and backed out
of the driveway. The two individuals from the Acura
began shooting at the T-Rex from a distance of approxi-
mately eight and one-half feet. The shooting continued
as the T-Rex crashed into a stop sign. Beaulieu pushed
himself out of the T-Rex and ran up a hill. Maringola
watched the two men from the Acura shoot at Beaulieu
as he fled.
One of the men from the Acura approached the T-
Rex and ordered the victim to exit. The victim replied
that he was unable to do so and then was shot multiple
times. This shooter continued to pull the trigger of the
firearm even though he had discharged all of its ammu-
nition. After the cessation of gunshots, another witness,
Sade Canada, heard someone say, ‘‘just leave him, let’s
go,’’ and the shooters returned to the Acura and drove
off. Later that evening, the defendant was overheard
telling his girlfriend, Isis Hargrove, that ‘‘we just did
some hot shit,’’ and appeared nervous.
After a brief period of time, Beaulieu returned to the
T-Rex and saw that the victim had remained in it and
was not moving. Waterbury police officers arrived and
secured the area. At 1:37 a.m., paramedic Joshua Stokes
was dispatched to the scene. He observed that the vic-
tim had lost a ‘‘copious’’ amount of blood, suffered
multiple gunshot wounds and had no pulse or lung
sounds. After consulting with a physician from Water-
bury Hospital via telephone, the victim was pronounced
dead at the scene.3
The next day, July 9, 2011, Antonio Lofton, a resident
of New Haven, was in his backyard. Lofton observed
the defendant and Earl Simpson shoot handguns five
or six times before driving off in a black Acura.4 The
noise from the firearms resulted in a report to the police,
and Myra Nieves, a New Haven police detective, com-
menced an investigation. She recovered six bullet cas-
ings and one projectile from that area. These items were
sent to the state forensics laboratory for testing.
At the location of the Waterbury shooting, Brian
Juengst, a crime scene technician, participated in the
recovery of thirteen shell casings and three intact pro-
jectiles.5 Orlando Rivera, a detective with the Waterbury
Police Department, investigated the homicide and
learned that a dark-colored vehicle, later determined
to be a black Acura, had been used by the shooters.
Rivera obtained video from businesses located near
the shooting. These videos showed the black Acura
following the T-Rex until it pulled into the driveway on
Boyden Street. Rivera also learned that the casings and
projectiles found at the Waterbury crime scene were
connected to a criminal investigation in New Haven.6
Rivera communicated with investigators in New Haven
and obtained the names of the defendant, Isis Hargrove,
Simpson and Shaquan Armour. Hargrove, who was the
girlfriend of the defendant and the sister of Simpson,
owned the black Acura. Using this information, Rivera
obtained a search warrant for the cell phone records
of Simpson and Hargrove. These records established
that Hargrove was in the area of the Waterbury shooting
at the time of that incident. After successfully applying
for a warrant on August 26, 2011, Rivera seized the
Acura. Discolorations on this vehicle matched those
that were visible on the videos from the night of the
shooting.
On July 29, 2011, Rivera learned that Simpson had
been arrested in North Carolina. Approximately six
weeks later, Rivera interviewed Simpson, who provided
a written statement regarding the events of July 8, 2011.
Simpson admitted that he and the defendant were in
the area of Boyden Street in Waterbury at the time of
the shooting. As a result of the investigation, Rivera
obtained an arrest warrant for the defendant, and he
was taken into custody on November 16, 2011.7
During the defendant’s pretrial incarceration, he
spoke with Joshua Habib, who also was held at the New
Haven Correctional Center. Habib offered to transport a
letter from the defendant to Hargrove, who at that time
was incarcerated with Habib’s girlfriend in another cor-
rectional facility. During their conversation, the two
men discussed the shooting in Waterbury. The defen-
dant told Habib that the victim had been killed for
the purpose of stealing the T-Rex and a chain. The
defendant provided specifics regarding the Waterbury
shooting, telling Habib that ‘‘he got out of the car and
shot [the victim], and they were attempting or he—
intentions was to rob [the victim] for the [T-Rex] . . . .’’
The defendant also told Habib that the case against him
was based on circumstantial evidence.
The jury found the defendant guilty on all charges.
The court sentenced the defendant to seventy-five years
incarceration, thirty-two of which were mandatory. On
August 27, 2014, the court vacated the conviction of
felony murder, but did not alter the length of the defen-
dant’s sentence.8 This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the evidence was
insufficient to sustain his conviction of murder and
criminal possession of a firearm.9 Specifically, he argues
that the state failed to present sufficient evidence that
he had fired the gun during the Waterbury shooting,
and therefore, his conviction of murder and criminal
possession of a firearm cannot stand. We are not per-
suaded.
As a preliminary matter, we note that the defendant
preserved this claim by moving for a judgment of acquit-
tal at the conclusion of the state’s evidence, pursuant
to Practice Book §§ 42-40 and 42-41.10 See State v. Taft,
306 Conn. 749, 753 n.6, 51 A.3d 988 (2012); State v.
Brown, 118 Conn. App. 418, 422, 984 A.2d 86 (2009), cert.
denied, 295 Conn. 901, 988 A.2d 877 (2010). Specifically,
defense counsel argued that there was no evidence that
he possessed a firearm on July 8, 2011. With respect
to the murder charge, defense counsel contended that
there was no evidence that the defendant had been one
of the two shooters who had exited the black Acura.
Additionally, defense counsel noted that two of the
eyewitnesses had testified that the shooters had dark
skin, but that the defendant had light skin. The court
denied the defendant’s motion. The defendant also filed
a postverdict motion for a judgment of acquittal11 that
the court denied prior to sentencing.
Next, we set forth our standard of review and the
legal principles relevant to a claim of evidentiary insuffi-
ciency. We recently iterated that ‘‘a defendant who
asserts an insufficiency of the evidence claims bears an
arduous burden.’’ (Internal quotation marks omitted.)
State v. Leniart, 166 Conn. App. 142, 169, 140 A.3d 1026,
cert. granted on other grounds, 323 Conn. 918, 149 A.3d
499, 150 A.3d 1149 (2016). ‘‘In reviewing the sufficiency
of the evidence to support a criminal conviction we
apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant 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. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Badaracco, 156 Conn. App. 650, 657–58, 114 A.3d 507
(2015); see also State v. Bush, 325 Conn. 272, 285–86,
157 A.3d 586 (2017). Guided by these principles, we
consider the defendant’s appellate arguments in turn.
A
The defendant first argues that the evidence was
insufficient to support his conviction of murder12
because the ‘‘state presented no direct evidence that
identified the defendant as one firing shots or one that
solicited, requested, commanded, importuned or inten-
tionally aided anyone in the shooting of the victim. The
circumstantial evidence presented in this case was not
sufficient to have found the defendant guilty of murder.’’
Specifically, he contends that the state failed to prove
that he was one of the individuals who fired a gun at
the victim or that he had intended to kill the victim.
We are not persuaded.
The operative information did not charge the defen-
dant with murder as an accessory. It is not disputed,
however, that he was tried as a principal or an accessory
on the murder charge.13 Thus, to convict the defendant,
the state was required to prove that he was one of the
two men, who, after exiting the Acura, shot at the victim
in the T-Rex. See, e.g., State v. Jackson, 257 Conn. 198,
206, 777 A.2d 591 (2001) (question of identity of perpe-
trator of crime is question of fact for jury to resolve);
State v. Rodriguez, 133 Conn. App. 721, 728, 36 A.3d
724 (2012) (same), aff’d, 311 Conn. 80, 83 A.3d 595
(2014). The state was not required, however, to prove
that the defendant fired the fatal gunshot. State v. Allen,
289 Conn. 550, 559–60, 958 A.2d 1214 (2008); State v.
Hamlett, 105 Conn. App. 862, 866–67, 939 A.2d 1256,
cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).
1
The defendant contends that there was no evidence
that he exited the Acura and fired a gun at the victim.
This claim, however, ignores the testimony of Habib,
the individual who spoke with the defendant about the
shooting while incarcerated at the New Haven Correc-
tional Center. Habib initially testified that the defendant
had told him that ‘‘they killed [the victim] for the—his
chain, and they basically were going to rob [the victim]
of the three-wheeler that he was riding and—which
they ended up not taking. They just took his chain.’’
(Emphasis added.) Habib then clarified his testimony
as follows: ‘‘[The defendant] said that he got out of the
car and shot [the victim] and they were attempting or
he—intentions was to rob him for the three-wheeler
they were riding or he—the . . . [h]is intentions were
to rob the—the victim of the three-wheeler he was
riding and whatever he may have had on him . . . .’’
(Emphasis added.)
Our Supreme Court has noted that ‘‘[w]here the
authenticity and reliability of a confession are estab-
lished, it is certainly true that we have before us the
highest sort of evidence.’’ (Internal quotation marks
omitted.) State v. Ruth, 181 Conn. 187, 197, 435 A.2d 3
(1980). In Ruth, the court concluded that the defen-
dant’s confession, coupled with ‘‘more than ample evi-
dence of the corpus delicti’’ and accomplice testimony
constituted overwhelming evidence of guilt. Id., 199. In
the present case, the state presented Habib’s testimony
in which the defendant admitted that he exited the
Acura and then shot the victim. Contrary to the defen-
dant’s appellate argument, the state produced evidence
that the defendant possessed the gun and shot the vic-
tim in Waterbury in the early hours of July 8, 2011.
Habib also testified that he never had lived in New
Haven, and that he met the defendant for the first time
while incarcerated at the New Haven Correctional Cen-
ter in March, 2012. Specifically, Habib indicated that
he ‘‘didn’t know nothing’’ about the defendant at that
time. The defendant told Habib that the case against
him was based entirely on circumstantial evidence and
that the only thing that linked him to death of the victim
was that Simpson had spoken to the police following
his arrest ‘‘down South.’’ The defendant also stated to
Habib that the video footage recovered by the police
did not show the defendant’s face or the license plates
on Hargrove’s Acura, but did include the bullet holes
present on the vehicle. Finally, the defendant revealed
to Habib that some firearms evidence had been recov-
ered from his home that linked him to the shooting of
the victim. These additional details bolstered Habib’s
credibility, despite his status as a jailhouse informant.14
The jury, in turn, credited Habib’s testimony regarding
the defendant’s confession, which served as the link
between the death of the victim and the defendant.15 See
State v. Farnum, 275 Conn. 26, 33, 878 A.2d 1095 (2005).
Construing the evidence in the light most favorable
to sustaining the verdict, we conclude that the evidence
in the present case was sufficient to support the jury’s
finding that the defendant was one of the individuals
who exited the Acura and shot at the victim. Accord-
ingly, we conclude that the defendant’s claim to the
contrary must fail.
2
The defendant next contends that the state failed
to prove that he had intended to kill the victim. This
contention is based, in large part, on the defendant’s
argument that there was insufficient evidence to prove
that he was one of the men who exited the Acura and
shot at the victim. Having rejected that underlying prem-
ise in part I A 1 of this opinion, we similarly are not
persuaded by the defendant’s contention that the state
failed to produce sufficient evidence regarding the ele-
ment of intent.
In order to convict the defendant of murder, the state
was required to prove, beyond a reasonable doubt, that
he had the intent to cause the death of another person.
State v. White, 127 Conn. App. 846, 851–52, 17 A.3d 72,
cert. denied, 302 Conn. 911, 27 A.3d 371 (2011). ‘‘Under
. . . § 53a-54a (a), the state must prove that the defen-
dant acted with the specific intent to cause the death
of the victim. . . . Intent is a mental process which
ordinarily can be proven only by circumstantial evi-
dence. An intent to cause death may be inferred from
circumstantial evidence such as the type of weapon
used, the manner in which it was used, the type of
wound inflicted and the events leading to and immedi-
ately following the death. . . . The use of inferences
based on circumstantial evidence is necessary because
direct evidence of the accused’s state of mind is rarely
available. . . .
‘‘Whether a criminal defendant possessed the specific
intent to kill is a question for the trier of fact. . . . This
court will not disturb the trier’s determination if, 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. . . . [I]n viewing evidence which could yield
contrary inferences, the [fact finder] is not barred from
drawing those inferences consistent with guilt and is
not required to draw only those inferences consistent
with innocence. The rule is that the [fact finder’s] func-
tion is to draw whatever inferences from the evidence
or facts established by the evidence it deems to be
reasonable and logical.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Ames, 171 Conn. App.
486, 507, 157 A.3d 660 (2017); see also State v. Medina,
228 Conn. 281, 303, 636 A.2d 351 (1994) (defendant acts
intentionally in causing death of another when he has
conscious objective to cause another’s death); State v.
Leniart, supra, 166 Conn. App. 175–76 (same).
Our Supreme Court has recognized that ‘‘[i]ntent to
cause death may be inferred from the type of weapon
used, the manner which it was used, the type of wound
inflicted and the events leading to and immediately
following the death. . . . Furthermore, it is a permissi-
ble, albeit not a necessary or mandatory, inference that
a defendant intended the natural consequences of his
voluntary conduct.’’ (Internal quotation marks omitted.)
State v. Otto, 305 Conn. 51, 66–67, 43 A.3d 629 (2012).
In the present case, there was evidence that the defen-
dant wanted to rob the victim of the T-Rex vehicle and
of a chain worn around his neck. After following the
victim for a period of time, the defendant exited the
Acura armed with a firearm. From a distance of approxi-
mately eight and one-half feet, the defendant aimed the
firearm at the T-Rex and fired several rounds. He then
fled without providing any medical assistance, and,
when detained by law enforcement, possessed false
identification. On the basis of these facts, we conclude
that there was evidence for the jury to conclude that
the defendant possessed the intent necessary to support
his conviction of murder. See, e.g., State v. Gary, 273
Conn. 393, 408–409, 869 A.2d 1236 (2005); see also State
v. Floyd, 253 Conn. 700, 720, 756 A.2d 799 (2000) (jury
could infer intent to cause victim’s death where defen-
dant fired multiple gunshots at victim as he lay on
ground); State v. Sanchez, 166 Conn. App. 665, 679–80,
146 A.3d 344 (defendant’s firing of series of gunshots
at crowd and immediately leaving scene of shooting
constituted evidence of specific intent to kill or injure
another person), cert. denied, 323 Conn. 917, 149 A.3d
498 (2016); State v. Leniart, supra, 166 Conn. App. 177
(defendant’s failure to obtain, or attempt to obtain, med-
ical assistance for victim constituted evidence of intent
to kill); State v. Grant, 149 Conn. App. 41, 50, 87 A.3d
1150 (consciousness of guilt evidence may be used to
draw inference of intent to kill), cert. denied, 312 Conn.
907, 93 A.3d 158 (2014); State v. Wright, 77 Conn. App.
80, 93, 822 A.2d 940 (fleeing scene of shooting while in
possession of gun indicative of intent to commit mur-
der), cert. denied, 266 Conn. 913, 833 A.2d 466 (2003).
We conclude, therefore, that sufficient evidence existed
to support the jury’s finding that the defendant pos-
sessed the intent necessary to find him guilty of murder.
B
The defendant also argues that the evidence was
insufficient to support his conviction of criminal posses-
sion of a firearm. We note that this claim is based on
the contention that the defendant was not one of the
individuals who exited the Acura and shot at the victim
on the T-Rex. In part I A of our opinion, we rejected
that argument. We further conclude that the evidence
was sufficient to support the defendant’s conviction of
criminal possession of a firearm in violation of § 53a-
217.
Section 53a-217 (a) provides in relevant part that ‘‘[a]
person is guilty of criminal possession of a firearm . . .
when such person possesses a firearm, ammunition or
an electronic defense weapon and (1) has been con-
victed of a felony committed prior to, on or after Octo-
ber 1, 2013 . . . .’’ See also State v. Beavers, 99 Conn.
App. 183, 189, 912 A.2d 1105, cert. denied, 281 Conn. 925,
918 A.2d 276 (2007). The term ‘‘firearm’’ is statutorily
defined in General Statutes § 53a-3 (19) as ‘‘any sawed-
off shotgun, machine gun, rifle, shotgun, pistol, revolver
or other weapon, whether loaded or unloaded from
which a shot may be discharged . . . .’’ (Emphasis in
original; internal quotation marks omitted.) State v.
Beavers, supra, 189.
In the present case, the parties stipulated that the
defendant had been convicted of a felony prior to July
8, 2011. Additionally, we have concluded that there was
sufficient evidence for the jury to find that he was one
of the two individuals who exited the Acura and shot
at the victim while he was on the T-Rex. Accordingly,
we conclude that there was sufficient evidence to sup-
port the defendant’s conviction of criminal possession
of a firearm.
II
The defendant next claims that the court abused its
discretion in admitting uncharged misconduct evi-
dence. Specifically, he argues that the prejudicial
impact of certain evidence from the New Haven crime
scene outweighed its probative value. We are not per-
suaded.
The following additional facts are necessary for our
discussion. On December 20, 2013, the state filed notice
of its intent to offer into evidence uncharged acts of
misconduct by the defendant.16 Specifically, it sought
to present evidence that approximately sixteen and one-
half hours after the Waterbury shooting, the defendant
shot and killed another person during a robbery in New
Haven. Further, the state sought to introduce evidence
that the firearm was used in both the Waterbury and
New Haven killings, and that Simpson was with the
defendant during both crimes. The defendant objected
to the uncharged misconduct evidence. During jury
selection, the court directed counsel to review State v.
Collins, 299 Conn. 567, 10 A.3d 1005, cert. denied, 565
U.S. 908, 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011), which
was applicable, in the court’s view, to the uncharged
misconduct issue in the present case. At this point, the
state noted that it intended to ‘‘sanitize’’ the evidence
from the New Haven shooting to show only that the
defendant had possessed a firearm used in the Water-
bury shooting the previous day.
On May 13, 2014, the court ruled that the state would
be permitted to present evidence that the defendant
had possessed and fired a weapon in New Haven the
day after the Waterbury shooting. On May 19, 2014, the
state called Antonio Lofton as a witness. Prior to his
testimony and outside of the presence of the jury, the
court provided a cautionary warning where it instructed
Lofton to refrain from mentioning the New Haven homi-
cide and to limit his testimony to the fact that he had
observed the defendant possess and discharge a firearm
on July 9, 2011.
Defense counsel also noted his objection to a photo-
graph of the New Haven crime scene that included
police tape. After a brief discussion, some of which was
held off the record at sidebar, the court indicated that
it would allow the photograph to be admitted into evi-
dence. Defense counsel argued that the prejudicial
impact of the police tape in the photograph outweighed
its probative value. As Lofton took the witness stand,
the court specifically instructed him to refrain from
mentioning the homicide that had occurred in New
Haven.17
Lofton testified that he lived in New Haven on July
9, 2011, and that his sister was pregnant with the defen-
dant’s child. In the early evening, Lofton was sitting in
his backyard when he heard multiple gunshots coming
from behind a nearby brick building. Lofton stated that
he had observed the defendant and Simpson shoot
handguns five or six times before driving off in a black
Acura. The prosecutor presented a photograph, which
was admitted into evidence over the defendant’s objec-
tion. The court instructed the jury that it was not to
consider the police tape depicted in the photograph.
During the trial, the state also presented evidence
from Nieves, a New Haven police detective, and James
Stephenson, a state firearms and tool mark examiner,
regarding the bullets and casings recovered from the
site of the New Haven shooting. These witnesses estab-
lished that the two firearms used in the New Haven
shooting were the same as those used in the Water-
bury shooting.
We now turn to the relevant legal principles and our
standard of review for claims that the court improperly
admitted uncharged misconduct evidence. ‘‘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 miscon-
duct 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 miscon-
duct falls within an exception to the general rule prohib-
iting its admission, we have adopted a two-pronged
analysis. . . . First, the evidence must be relevant and
material to at least one of the circumstances encom-
passed by the exceptions. Second, the probative value
of such evidence must outweigh the prejudicial effect
of the other crime evidence. . . . Since the admission
of uncharged misconduct evidence is a decision within
the discretion of the trial court, we will draw every
reasonable presumption in favor of the trial court’s
ruling. . . . We will reverse a trial court’s decision only
when it has abused its discretion or an injustice has
occurred.’’ (Internal quotation marks omitted.) State v.
Torres, 168 Conn. App. 611, 619–20, 148 A.3d 238 (2016),
cert. granted on other grounds, 325 Conn. 919, A.3d
(2017); see also State v. Pena, 301 Conn. 669, 673–74,
22 A.3d 611 (2011); Conn. Code Evid. (2009) § 4-5 (b).18
In the present case, the court determined that the
evidence from the New Haven shooting was probative
of the defendant’s ‘‘means’’ to commit the Waterbury
shooting. ‘‘Evidence indicating that an accused pos-
sessed an article with which the particular crime
charged may have been accomplished is generally rele-
vant to show that the accused had the means to commit
the crime. . . . The state does not have to connect a
weapon directly to the defendant and the crime. It is
necessary only that the weapon be suitable for the com-
mission of the offense.’’ (Citation omitted; emphasis
omitted; internal quotation marks omitted.) State v.
Franklin, 162 Conn. App. 78, 96, 129 A.3d 770 (2015),
cert. denied, 321 Conn. 905, 138 A.3d 281 (2016); see
also State v. Torres, supra, 168 Conn. App. 620. In his
brief to this court, the defendant focuses his appellate
claim on the prejudice prong.19
‘‘Although relevant, evidence may be excluded by the
trial court if the court determines that the prejudicial
effect of the evidence outweighs its probative value.
. . . 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 evi-
dence is unduly prejudicial is not whether it is damaging
to the defendant but whether it will improperly arouse
the emotions of the jur[ors]. . . . The trial court . . .
must determine whether the adverse impact of the chal-
lenged evidence outweighs its probative value. . . .
Finally, [t]he trial court’s discretionary determination
that the probative value of evidence is not outweighed
by its prejudicial effect will not be disturbed on appeal
unless a clear abuse of discretion is shown. . . .
[B]ecause of the difficulties inherent in this balancing
process . . . every reasonable presumption should be
given in favor of the trial court’s ruling. . . . Reversal
is required only [when] an abuse of discretion is mani-
fest or [when] injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. Torres,
supra, 168 Conn. App. 623–24; see also State v. Rosario,
99 Conn. App. 92, 104, 912 A.2d 1064, cert. denied, 281
Conn. 925, 918 A.2d 276 (2007).
The defendant argues that the uncharged misconduct
evidence, specifically, that Lofton’s testimony that he
observed the defendant discharge a firearm,20 aroused
the emotions, hostility or sympathy of the members
of the jury.21 He further maintains that this evidence
exceeded what was necessary to link the two crime
scenes and made him, in the eyes of the jurors, ‘‘a
person who acted violently, harmed or threatened to
harm people and called into question his character.’’
Finally, the defendant asserts that the admission into
evidence of a photograph of the New Haven crime scene
that contained police tape was too prejudicial because
the jury then knew of his conviction of crimes from
that shooting.
The defendant was charged, inter alia, with shooting
the victim during an attempted robbery. Given the
details of the Waterbury crimes, evidence that he dis-
charged a firearm behind a brick building would not
unduly arouse the emotions of the jurors. See State v.
Estrella J.C., 169 Conn. App. 56, 99, 148 A.3d 594 (2016).
The possession of a firearm likely would not cause an
improper emotional response from the jury in a case
where the defendant was charged, inter alia, with mur-
der. See State v. Collins, supra, 299 Conn. 587–88; State
v. Torres, supra, 168 Conn. App. 626; see generally State
v. Smith, 313 Conn. 325, 342–43, 96 A.3d 1238 (2014)
(prejudicial effect minimized by limited testimony to
‘‘ ‘bare bones’ ’’ account of misconduct); State v.
Morales, 164 Conn. App. 143, 181, 136 A.3d 278 (when
prior acts of misconduct were substantially less shock-
ing than crimes charged, Appellate Court consistently
has declined to conclude admission of evidence was
unduly prejudicial), cert. denied, 321 Conn. 916, 136
A.3d 1275 (2016). Moreover, the court considered the
written motions and briefs of the parties, as well as
extensive oral argument, and prevented the jury from
hearing the most inflammatory details of the New Haven
incident. See State v. Torres, supra, 625; State v. Kantor-
owski, 144 Conn. App. 477, 489–92, 72 A.3d 1228 (care
used by trial court in sanitizing uncharged misconduct
evidence militates against finding abuse of discretion),
cert. denied, 310 Conn. 924, 77 A.3d 141 (2013). The
court also directly instructed Lofton to refrain from
mentioning the homicide that had occurred in New
Haven involving the defendant and permitted leading
questions to help the witnesses avoid mentioning the
more inflammatory details of the New Haven events.
See State v. Collins, supra, 589 (care taken by trial court
to devise measures to reduce any prejudicial impact
militates against finding abuse of discretion). We fur-
ther conclude that the presence of police tape in the
photograph from the New Haven crime provided mini-
mal prejudicial impact, as there was ample testimony
that the police investigated that location following a
report of gunshots fired. Finally, the court provided
the jurors with a limiting instruction directing them to
refrain from considering the police tape. See State v.
Gonzalez, 167 Conn. App. 298, 310, 142 A.3d 1227, cert.
denied, 323 Conn. 929, 149 A.3d 500 (2016); see also
State v. Collins, supra, 590. Any prejudice was out-
weighed by the probative value of the evidence that
helped identify the defendant as a shooter in Waterbury
on July 8, 2011. See, e.g., State v. Gonsalves, 137 Conn.
App. 237, 247–49, 47 A.3d 923, cert. denied, 307 Conn.
912, 53 A.3d 998 (2012). Affording due deference to the
ruling of the trial court, we conclude that it did not
abuse its discretion in determining that the probative
value of the uncharged misconduct evidence out-
weighed its prejudicial impact.
III
The defendant’s final claim is that his right to a fair
trial was violated as a result of prosecutorial impropri-
ety. Specifically, he argues that the prosecutor made
several mistakes regarding the evidence during his clos-
ing arguments to the jury, and that as a result, he was
denied his due process right to a fair trial. The state
counters that none of the claimed mistakes constituted
prosecutorial impropriety and, even if this court were
to conclude otherwise, the defendant failed to establish
that he had been denied a fair trial. We conclude that
the defendant’s right to a fair trial was not violated in
this case.
The legal principles regarding a claim of prosecutorial
impropriety are well established. ‘‘In analyzing claims
of prosecutorial impropriety, we engage in a two step
process. . . . First, we must determine whether any
impropriety in fact occurred; second, we must examine
whether that impropriety, or the cumulative effect of
multiple improprieties, deprived the defendant of his
due process right to a fair trial. . . . To determine
whether the defendant was deprived of his due process
right to a fair trial, we must determine whether the sum
total of [the prosecutor’s] improprieties rendered the
defendant’s [trial] fundamentally unfair . . . . The
question of whether the defendant has been prejudiced
by prosecutorial [impropriety], therefore, depends on
whether there is a reasonable likelihood that the jury’s
verdict would have been different absent the sum total
of the improprieties. . . . Accordingly, it is not the
prosecutorial improprieties themselves but, rather, the
nature and extent of the prejudice resulting therefrom
that determines whether a defendant is entitled to a
new trial. . . .
‘‘To determine whether any improper conduct by the
[prosecutor] violated the defendant’s fair trial rights is
predicated on the factors set forth in State v. Williams
[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due
consideration of whether that [impropriety] was
objected to at trial. . . . These factors include the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rios, 171 Conn. App. 1, 51–52, 156
A.3d 18, cert. denied, 325 Conn. 914, 159 A.3d 232 (2017);
see also State v. Jones, 320 Conn. 22, 34–35, 128 A.3d
431 (2015). The defendant bears the burden of demon-
strating both that the comments were improper and
that they were so egregious as to constitute a denial of
due process. State v. Payne, 303 Conn. 538, 562–63, 34
A.3d 370 (2012).
Additionally, ‘‘[i]t is well settled that the prosecutor,
as a public official seeking impartial justice on behalf
of the people of this state, has a heightened duty to
avoid argument [or questioning] that strays from the
evidence or diverts the jury’s attention from the facts
of the case. . . . Nonetheless, in evaluating claims of
impropriety during summation, we recognize that the
privilege of counsel in addressing the jury should not
be too closely narrowed or unduly hampered . . . .
Thus, as the state’s advocate, a prosecutor may argue
the state’s case forcefully, [provided the argument is]
fair and based upon the facts in evidence and the reason-
able inferences to be drawn therefrom. . . . Moreover,
[i]t does not follow . . . that every use of rhetorical
language or device [by the prosecutor] is improper.
. . . The occasional use of rhetorical devices is simply
fair argument.’’ (Citations omitted; internal quotation
marks omitted.) State v. Bennett, 324 Conn. 744, 778,
155 A.3d 188 (2017).
Finally, we note that although the defendant objected
to only one comment by the prosecutor, we will review
his claims of prosecutorial misconduct. ‘‘It is well estab-
lished law . . . that a defendant who fails to preserve
claims of prosecutorial [impropriety] need not seek to
prevail under the specific requirements of State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), and,
similarly, it is unnecessary for a reviewing court to
apply the four-pronged Golding test. . . . Our
Supreme Court has explained that the defendant’s fail-
ure to object at trial to . . . the [occurrence] that he
now raises as [an instance] of prosecutorial impropri-
ety, though relevant to our inquiry, is not fatal to review
of his [claim]. . . . This does not mean, however, that
the absence of an objection at trial does not play a
significant role in the determination of whether the
challenged statements were, in fact, improper. . . . To
the contrary, we continue to adhere to the well estab-
lished maxim that defense counsel’s failure to object
to the prosecutor’s argument when it was made sug-
gests that defense counsel did not believe that it was
[improper] in light of the record of the case at the time.’’
(Internal quotation marks omitted.) State v. Fernandez,
169 Conn. App. 855, 867–68, 153 A.3d 53 (2016). Guided
by these principles, we consider each of the defendant’s
claims of prosecutorial impropriety in turn.
A
The defendant first argues that an impropriety
occurred when the prosecutor misstated to the jury
during closing arguments that Maringola had testified
that two people exited from the Acura, shot at the
victim, walked closer to the T-Rex and fired a second
volley of gunshots at the victim. We conclude that even
if the challenged statement constituted an impropriety,
the defendant failed to meet his burden of showing that
it violated his right to due process.
As part of his preliminary remarks to the jury during
closing argument, the prosecutor noted that if he said
something about the facts of the case that was different
from what a member of the jury remembered, then
‘‘your memory prevails, not what I have said.’’ During
the course of his presentation, the prosecutor argued
the following to the jury: ‘‘Now, you heard testimony
from Adam Maringola, remember Adam Maringola, he
was in the home on Hanover . . . he was cleaning the
house, he was preparing to move in. At that point, he
heard the T-Rex, T-Rex drives down Hanover Street,
caught his attention, he looked out the window. Saw
it pull into the driveway at the end of Hanover and the
T intersection with Boyden Street. He saw a number
of people get out of the car, not exactly sure how many.
But he saw two of them exit the black Acura and walk
toward that T-Rex, parked in the driveway. At that time,
he sees the T-Rex back out, sees the two guys shoot.
As he testified, he’s shooting at the left side of the car,
same side as [the victim] was struck with [a] number
of bullets. The bike crashes. He saw two people walk
up to the bike, he heard somebody say to [the victim],
get out of the bike. He then heard [the victim] say, I
can’t. More shots.’’ (Emphasis added.)
Maringola, the first witness of the trial, testified that
he had observed two or three individuals exit the Acura
while the T-Rex was in the driveway. He then saw that
‘‘two people [were] walking toward the bike.’’ When
the T-Rex started to back out of the driveway, the two
individuals began shooting. The T-Rex crashed and
came to a stop, and the passenger jumped out and
ran away. The two men from the Acura shot at the
passenger. Maringola then stated that, at this point,
someone went up to the T-Rex, but he was not sure
whether it was just one of the individuals from the
Acura or both, and instructed the driver of the T-Rex
to ‘‘get out.’’ Finally, the person who had ordered the
victim to ‘‘get out’’ shot the victim multiple times. During
cross-examination, however, Maringola agreed with
defense counsel’s statement that it was ‘‘two people
that walked up to the bike . . . .’’ A review of the
colloquy between Maringola and defense counsel leads
to the conclusion that Maringola was referencing a time
frame from when the two individuals exited the Acura,
but before they started shooting for the first time.
We have recognized that ‘‘[p]rosecutorial [impropri-
ety] of a constitutional magnitude can occur in the
course of closing arguments. . . . [B]ecause closing
arguments often have a rough and tumble quality about
them, some leeway must be afforded to the advocates
in offering arguments to the jury in final argument.
[I]n addressing the jury, [c]ounsel must be allowed a
generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument.’’ (Internal
quotation marks omitted.) State v. Williams, 172 Conn.
App. 820, 834, A.3d , cert. denied, 326 Conn. 913,
A.3d (2017); see also State v. Bennett, supra,
324 Conn. 778; State v. Williams, 102 Conn. App. 168,
193–94, 926 A.2d 7, cert. denied, 284 Conn. 906, 931
A.2d 267 (2007).
This latitude does not, however, permit a prosecutor
to state, comment upon, or suggest an inference from
facts not in evidence or present matters that the jury
has no right to consider. State v. Otto, supra, 305 Conn.
76–77; State v. Patterson, 170 Conn. App. 768, 789, 156
A.3d 66, cert. denied, 325 Conn. 910, 158 A.3d 320 (2017);
see also State v. Ross, 151 Conn. App. 687, 697–98,
95 A.3d 1208 (when prosecutor suggests fact not in
evidence, there is risk that jury may conclude that he
had independent knowledge of facts that could not be
presented to jury), cert. denied, 314 Conn. 926, 101 A.3d
271, 272 (2014).
In the present case, the prosecutor incorrectly argued
to the jury that Maringola had testified that two men
approached the T-Rex after it crashed following the
initial volley of gunshots. A review of his testimony
reveals that Maringola did not make such a statement,
either during direct examination or cross-examination.
Although this mistake does not appear to have been
made intentionally, the prosecutor did not include any
type of qualifier with respect to Maringola’s testimony.
See, e.g., State v. Rios, supra, 171 Conn. App. 59 (use of
phrase ‘‘ ‘something like that’ ’’ made it clear prosecutor
was not attempting to mislead jury into believing those
were precise words of defendant and mitigated impact
of imprecision of words used); cf. State v. Patterson,
supra, 170 Conn. App. 793 (prosecutor did not request
that jury make reasonable inference but mischaracter-
ized identification testimony of witness); State v.
Sargent, 87 Conn. App. 24, 39–40, 864 A.2d 20 (improper
for prosecutor to convey that he was recounting actual
testimony of witness and then mischaracterize it during
closing argument), cert. denied, 273 Conn. 912, 870 A.2d
1082 (2005).
Assuming, without deciding, that the prosecutor’s
comment that two men approaching the T-Rex after it
had crashed constituted prosecutorial impropriety, we
nevertheless conclude that this comment did not
deprive the defendant of his right to a fair trial. This
conclusion is based on our consideration of the Wil-
liams factors. The defendant did not invite the chal-
lenged comment and thus the first factor weighs in his
favor. The second factor, the severity of the impropri-
ety, weighs in favor of the state because the defendant
failed to object at the time of the comment. ‘‘[W]e con-
sider it highly significant that defense counsel failed to
object to any of the improper remarks, request curative
instructions, or move for a mistrial. Defense counsel,
therefore, presumably [did] not view the alleged impro-
priety as prejudicial enough to seriously jeopardize the
defendant’s right to a fair trial. . . . Given the defen-
dant’s failure to object, only instances of grossly egre-
gious [impropriety] will be severe enough to mandate
reversal.’’ (Internal quotation marks omitted.) State v.
Patterson, supra, 170 Conn. App. 797–98. Further, this
relatively minor misstatement by the prosecutor does
not rise to the level of a grossly egregious impropriety.
Id., 798.
The third factor, the frequency of the comment, also
weighs in favor of the state. The prosecutor’s comment
regarding Maringola’s testimony was a small part of his
summation of the evidence against the defendant and
did not constitute the main theme that consistently was
emphasized during closing argument. We also iterate
that counsel is afforded generous latitude during closing
argument. See State v. Williams, supra, 172 Conn. App.
834. The fourth factor, whether the impropriety related
to a critical issue in the case, also favors the state.
While a significant issue during the trial was whether
the defendant was one of the individuals who exited
the Acura and shot at the T-Rex, the question of whether
one or both approached the T-Rex after it had crashed
was not significant to that determination. Once the jury
had determined that the defendant was one of the two
persons from the Acura and participated in the shoot-
ing, it had resolved the question of identity and the
specifics of who approached the T-Rex after the crash
was negligible.
The fifth factor, whether the court provided a curative
instruction, favors the state. A request to disregard the
incorrect statement of the prosecutor was not made by
the defendant, and therefore the court did not provide
such an instruction. It did, however, instruct the mem-
bers of the jury that they were the ‘‘sole judges of the
facts’’ and that they were to ‘‘recollect and weigh the
evidence, and form [their] own conclusions as to what
the ultimate facts are.’’ The court also stated that jury’s
recollection of the facts prevailed because it was the
exclusive trier of fact. The sixth factor, the strength of
the state’s case, also weighs in favor of the state. A great
deal of circumstantial evidence placed the defendant at
the scene of the crime, linked him to one of the firearms
used and provided consciousness of guilt. The testi-
mony of Habib, which the jury was free to credit despite
his status as a jailhouse informant, directly identified
the defendant as one of the shooters.
After a consideration of the Williams factors, we
conclude that the prosecutor’s statement regarding two
men approaching the T-Rex after it had crashed, even if
improper, did not deny the defendant of his due process
right to a fair trial.
B
The defendant next argues that an impropriety
occurred when the prosecutor misstated Habib’s testi-
mony regarding the defendant’s inculpatory statements
in the New Haven Correctional Center. We again con-
clude that the defendant failed to establish that his right
to due process was violated.
The following additional facts are necessary for our
discussion. During his closing argument, the prosecutor
stated: ‘‘[O]nly two people have the guns. How do we
know it’s the defendant? His own words. Eight months,
nine months later when he was in jail, he told Mr. Habib,
I only took the fool’s chain. Two people walked up that
bike, two people had guns, two people walked back to
the car, he had to be one of them, he took the chain;
that’s what he said. . . . Now, you’ll find in the charge
that the defendant’s charged as a principal and an acces-
sory to murder. The principal’s a person who actually
commits the act; accessory is one who aids or helps
another person in that act. Again, you’re gonna say,
how do we know he’s the shooter? Again, by his own
words. . . . We also know by his own words that he
killed [the victim]. He stated to Joshua Habib that he
killed [the victim].’’ (Emphasis added.)
The prosecutor used similar language during his clos-
ing argument addressing the charge of felony murder.
‘‘Once again, we know the defendant was in possession
of the gun at—on [July 8] because . . . two people
walked out of that car with guns, two people walked
up to the bike, two people shot . . . . His own words,
I took the fool’s chain. How would he take the fool’s
chain if he didn’t walk up to that bike? It has to be one
of the two people. And again, if he is, there are only two
people shooting, he’s one of the two people shooting.’’
(Emphasis added.)
The defendant also challenges the remarks made near
the conclusion of the closing argument where the prose-
cutor stated: ‘‘We also know that the defendant killed
[the victim] because he told Mr. Habib—he told Mr.
Habib that a person that he was with when he killed a
guy talked to the police and gave a statement.’’ Finally,
the defendant points to the following statement during
the prosecutor’s rebuttal argument: ‘‘Now, let’s talk
about [Habib] for a few minutes. He [testified]—this guy
right here told him the reason he got . . . arrested—let
me change that—somebody he was with, when he killed
the guy in Waterbury, he got arrested down South.’’
The defendant has raised two distinct claims of prose-
cutorial impropriety with respect to these excerpts from
the closing arguments. First, he contends that the prose-
cutor improperly interpreted Habib’s testimony as to
contain a direct admission by the defendant that he
shot the victim in Waterbury. As we set forth in part I
A 1 of this opinion, Habib testified that the defendant
had stated that ‘‘he got out of the car and shot him, and
they were attempting or he—intentions was to rob him
for the [T-Rex] . . . . His intentions were to rob the—
the victim of the [T-Rex] he was riding and whatever
else he may have had on him, but they ultimately just
ended up taking his chain . . . .’’ The prosecutor’s
arguments to the jury that the defendant had directly
admitted to shooting the victim and taking the chain
were based on evidence. Therefore, the comments
made by the prosecutor that Habib’s testimony included
a direct admission by the defendant were not improper.
See State v. Taft, supra, 306 Conn. 767.
The defendant’s second claim of prosecutorial impro-
priety with respect to the excerpts cited is that the
prosecutor improperly argued that the defendant
directly had admitted to taking ‘‘the fool’s chain.’’ We
note that the phrase, ‘‘the fool’s chain,’’ was not part
of the evidence in this case; no person testified that
the defendant had used that phrase. Further, contrary
to the prosecutor’s argument, Habib did not testify that
the defendant had used the pronoun ‘‘I’’ rather than
‘‘they’’ with respect to describing who had taken the
victim’s chain. Therefore, for the reasons stated in part
III A, we will assume, without deciding, that portion of
the prosecutor’s argument to the jury constituted an
impropriety and proceed to the Williams factors.
As for the first Williams factor, we conclude that the
comments regarding the chain were not invited, and
therefore this factor weighs in favor of the defendant.
The second factor weighs in favor of the state, as it
was not severe. The defendant did not object, and the
prosecutor’s comments did not rise to the level of
grossly egregious impropriety. See State v. Patterson,
supra, 170 Conn. App. 798. The third factor, the fre-
quency of the comments, favors the state. The fourth
factor, whether the comment went to a central issue,
also favors the state. These comments at issue consti-
tute cumulative evidence as to the issue of identity.
Finally, the fifth and sixth factors weigh in favor of the
state for the reasons set forth in part III A of this opinion.
Accordingly, we conclude that the defendant has failed
to establish that his right to due process was violated
as a result of any misstatements as to Habib’s testimony.
C
The defendant finally argues that the prosecutor’s
misstatement during closing argument that the defen-
dant had Isis Hargrove’s phone constituted prosecu-
torial impropriety. Specifically, he contends that this
statement was an improper comment on facts not in
evidence. The state counters that this comment was a
fair argument because it was based on a reasonable
inference from the facts presented at the trial. We agree
with the state.
During his rebuttal argument to the jury, the prosecu-
tor stated: ‘‘Now, Shaina Moye—excuse me—she said—
she testified that this defendant the entire night driving
all the way from New Haven to Waterbury [had] Isis
Hargrove’s phone . . . . All the way up, all the way
driving around Waterbury. Now, you remember 12:17
a.m. on July 8th, all three phones, Shaina Moye’s, Earl
Simpson’s and Isis Hargrove’s hit off the Waterbury
tower for the first time. From that point until about
1:32 a.m., there are eighteen telephone calls from Shaina
Moye’s phone and Isis Hargrove’s phone. They’re not
sitting next to each other in the front seat of the car
calling each other, are they? No. He had Isis Hargrove’s
phone . . . .’’ At this point, defense counsel objected
on the ground that there was no evidence that anyone
had that phone. The prosecutor responded that his com-
ments were based on Moye’s testimony. The court
allowed the argument as a comment on the evidence.
The prosecutor then continued: ‘‘He had her phone.
And the calls are going back and forth to the two cars;
eighteen phone calls in that time frame.’’
Moye testified that she was a friend of Hargrove, who
drove a black Acura in July, 2011. On July 7, 2011,
Moye went to Waterbury to celebrate the defendant’s
birthday. Moye, accompanied by another woman, drove
her tan Chevrolet Malibu to a gas station to meet up
with the defendant, Simpson, Hargrove and another
man. The three women, driving in the Malibu, followed
the men, driving the Acura, to Waterbury. After picking
up a friend of the defendant, the group went to a night-
club. When the nightclub closed, the three women went
to a fast food restaurant in the Malibu, and she saw the
four men leave in the Acura. Moye stated that Hargrove
called the defendant, and Moye overheard the defen-
dant state ‘‘we just did some hot shit.’’ The Acura then
arrived at the restaurant. Hargrove and the defendant
switched cars, ending up in the Acura and Malibu
respectively. Both cars then left the restaurant, even
though the women had ordered and paid for their food,
but not yet received it. Moye followed Hargrove back
to New Haven. During cross-examination, Moye stated
that Hargrove had been using her phone that night.
The state also presented the testimony of Norman
Ray Clark, a custodian of records employed by Sprint
Nextel. He stated that there were sixteen phone calls
between Moye’s phone and Hargrove’s phone between
11:54 p.m. on July 7, 2011, and 2:06 a.m. on July 8,
2011, and that cell tower information placed Hargrove’s
phone in Waterbury for nearly all of these calls.
The state presented evidence, therefore, that Har-
grove spoke with the defendant during the time of the
Waterbury shooting, and shortly thereafter. Addition-
ally, there was evidence that Hargrove used Moye’s
phone, and thus it was likely that the defendant used
Hargrove’s phone. This inference is supported by
Moye’s testimony that she overhead the conversation
between the defendant and Hargrove while Hargrove
used Moye’s phone, and the phone records detailing
the phone calls between Hargrove’s phone and Moye’s
phone during the relevant time periods. Cell phone
towers confirmed that both of these phones were in the
same area at the relevant time supports this scenario. In
short, the prosecutor’s argument that the defendant had
used Hargrove’s phone was based on the evidence and
therefore did not constitute prosecutorial impropriety.
See State v. Taft, supra, 306 Conn. 767.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The jury also found the defendant guilty of felony murder in violation
of General Statutes § 53a-54c. The trial court initially rendered judgment of
conviction in accordance with the jury’s verdict as to the felony murder
count. After sentencing, the court vacated the conviction of felony murder,
citing to our decision in State v. Miranda, 145 Conn. App. 494, 508, 75 A.3d
742 (2013), aff’d, 317 Conn. 741, 120 A.3d 490 (2015), in which this court
stated: ‘‘Our Supreme Court, however, has specifically concluded that the
legislature intended that intentional murder and felony murder are alterna-
tive means of committing the same offense and should be treated as a single
crime for double jeopardy purposes. . . . Because . . . felony murder and
intentional murder are the same offense for double jeopardy purposes . . .
the vacatur remedy adopted in [State v. Polanco, 308 Conn. 242, 61 A.3d 1084
(2013)] must apply.’’ (Citations omitted; internal quotation marks omitted.)
2
Adam Maringola, a witness to the incident, described the T-Rex as a
‘‘custom vehicle’’ with two wheels in the front and one wheel in the back,
and having two car seats.
3
Susan Williams, a pathologist with the state’s chief medical examiner’s
office, who conducted the autopsy of the victim, concluded that the victim
died as a result of suffering multiple gunshot wounds.
4
We note that the defendant was convicted of murder, felony murder,
robbery or attempt to commit robbery in the first degree, carrying a pistol
without a permit and criminal possession of a pistol or revolver as a result
of this incident. See State v. Franklin, 162 Conn. App. 78, 81–82, 129 A.3d
770 (2015), cert. denied, 321 Conn. 905, 138 A.3d 281 (2016). The jury in the
present case was unaware of these charges and the defendant’s conviction.
5
Juengst also explained the difference between a casing and a projectile:
‘‘Well, if you were to take a complete bullet, it consists of a projectile,
which is what we normally associate with a bullet. It’s usually a metal slug.
Oftentimes, it may contain a jacket which is copper that covers or partially
covers that slug, and the casing is what contains the gunpowder, the primer,
and is capped off by the bullet.’’ Juengst further indicated the method
by which shell casings are left behind at the scene of a shooting. ‘‘[A]
semiautomatic handgun will eject a casing after the gun has been fired and
the bullet [has] left the casing through the chamber of the gun and eject
the casing out of the gun. Whereas, with a revolver, if you were to fire a
revolver, it would leave the casing insider the chamber of the revolver. It
could be, of course, manually removed by the shooter and left behind at
the scene. But those are the only two ways that a casing or a spent casing
can be left behind at the scene of a shooting.’’
6
James Stephenson, a state firearms and tool mark examiner, testified
that two guns had fired all of the bullets at the Waterbury and New
Haven locations.
7
At the time he was arrested and taken into custody, the defendant
possessed an identification card that listed a false name. When presented
with documents containing his true name and photograph, the defendant
‘‘sighed heavily . . . dropped his head and nodded.’’
8
See footnote 1 of this opinion.
9
We begin with this claim because if the defendant prevails on the suffi-
ciency claim, he is entitled to a directed judgment of acquittal on these
charges, rather than to a new trial. See State v. Moore, 100 Conn. App. 122,
126 n.2, 917 A.2d 564 (2007); see also State v. Badaracco, 156 Conn. App.
650, 656 n.11, 114 A.3d 507 (2015).
10
‘‘Even if this claim had not been preserved, we would review it on
appeal. Our Supreme Court has observed that any defendant found guilty
on the basis of insufficient evidence has been deprived of a constitutional
right, and would therefore necessarily meet the four prongs of [State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989)]. . . . Accordingly,
because there is no practical significance . . . for engaging in a Golding
analysis, we review an unpreserved sufficiency of the evidence claim as
though it had been preserved. . . . State v. Revels, 313 Conn. 762, 777, 99
A.3d 1130 (2014), cert. denied, U.S. , 135 S. Ct. 1451, 191 L. Ed. 2d
404 (2015).’’ (Internal quotation marks omitted.) State v. Terry, 161 Conn.
App. 797, 804 n.4, 128 A.3d 958 (2015), cert. denied, 320 Conn. 916, 131 A.3d
751 (2016).
11
See Practice Book § 42-51.
12
General Statutes § 53a-54a provides: ‘‘(a) A person is guilty of murder
when, with intent to cause the death of another person, he causes the death
of such person or of a third person or causes a suicide by force, duress or
deception; except that in any prosecution under this subsection, it shall be
an affirmative defense that the defendant committed the proscribed act or
acts under the influence of extreme emotional disturbance for which there
was a reasonable explanation or excuse, the reasonableness of which is to
be determined from the viewpoint of a person in the defendant’s situation
under the circumstances as the defendant believed them to be, provided
nothing contained in this subsection shall constitute a defense to a prosecu-
tion for, or preclude a conviction of, manslaughter in the first degree or
any other crime.’’
13
Our Supreme Court has stated that ‘‘consistent with well established
underlying principles of accessorial liability, the state must prove that [a]
defendant acted as an accessory by soliciting, requesting, commanding,
importuning or intentionally aiding . . . in causing [a] victim’s death. . . .
This is because accessorial liability is designed to punish one who intention-
ally aids another in the commission of a crime and not one whose innocent
acts in fact aid one who commits an offense. . . . Mere 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.’’ (Citations omitted;
internal quotation marks omitted.) State v. Gonzalez, 311 Conn. 408, 421,
87 A.3d 1101 (2014); see also General Statutes § 53a-8 (a).
We also note that the state did not charge the defendant with conspiracy
to commit murder, and therefore did not attempt to convict the defendant
under the Pinkerton doctrine. See Pinkerton v. United States, 328 U.S. 640,
647–48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). ‘‘[U]nder the Pinkerton doctrine,
a conspirator may be found guilty of a crime that he or she did not commit
if the state can establish that a coconspirator did commit the crime and
that the crime was within the scope of the conspiracy, in furtherance of the
conspiracy, and a reasonably foreseeable consequence of the conspiracy.’’
(Internal quotation marks omitted.) State v. VanDeusen, 160 Conn. App.
815, 845, 126 A.3d 604, cert. denied, 320 Conn. 903, 127 A.3d 187 (2015).
14
Habib met the definition of a jailhouse informant because he was incar-
cerated at the time of his testimony at the defendant’s trial and his testimony
was about a crime that he had not witnessed personally, but a confession
or inculpatory statements made by the defendant during their incarceration.
See State v. Diaz, 302 Conn. 93, 102–104, 25 A.3d 594 (2011); see also State
v. Arroyo, 292 Conn. 558, 564–70, 973 A.2d 1254 (2009), cert. denied, 559
U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010); State v. Patterson, 276
Conn. 452, 465, 886 A.2d 777 (2005); cf. State v. Carattini, 142 Conn. App.
516, 523–24, 73 A.3d 733 (witness was not jailhouse informant because he was
not incarcerated at time of testimony and did not testify about confession or
inculpatory statements made at time when both were incarcerated together),
cert. denied, 309 Conn. 912, 69 A.3d 308 (2013).
Our Supreme Court has noted that ‘‘[t]estimony by a jailhouse informant
about a jailhouse confession is inherently suspect because of the ease with
which such testimony can be fabricated, the difficulty in subjecting witnesses
who give such testimony to meaningful cross-examination and the great
weight that juries tend to give to confession evidence. . . . In contrast,
when a witness testifies about events surrounding the crime that the witness
observed, the testimony can be compared with the testimony of other wit-
nesses about those events, and the ability of the witness to observe and
remember the events can be tested.’’ (Citations omitted; internal quotation
marks omitted.) State v. Diaz, 302 Conn. 93, 109–10, 25 A.3d 594 (2011).
Nevertheless, the jury, properly instructed on informant testimony, remained
free to accept and credit Habib’s testimony, despite his status as a jail-
house informant.
15
During its deliberations, the jury requested to rehear Habib’s testimony.
16
The state set forth four acts of uncharged misconduct that it might seek
to have admitted into evidence. The first act was that in June, 2011, the
defendant possessed a firearm and threatened another person. The second
act was that the day after the Waterbury shooting, the defendant shot and
killed another victim in New Haven and that Simpson and the defendant
were present at both crime scenes. The third act was that after the Waterbury
and New Haven shootings, the defendant fled Connecticut and was subject
to a traffic stop by a New Jersey state police officer. During this stop, the
defendant provided the officer with a false name, and there were guns
in the trunk of the automobile. The fourth act was that he possessed an
identification card containing his picture and a different name at the time
of his arrest.
For the limited purpose of demonstrating the defendant’s consciousness
of guilt, the court permitted the state to present evidence that the defendant
had fled from Connecticut and had provided law enforcement in New Jersey
with a false name. The defendant has not challenged that ruling in this
appeal. The court also determined that the state could present evidence
regarding the defendant’s discharge of a firearm on the day following the
Waterbury shooting, but not that he shot at a person. The court granted the
motion in limine with respect to the first act of uncharged misconduct.
Thus, we will not discuss in further detail the first, third and fourth alleged
acts set forth in the state’s pleading regarding uncharged misconduct.
17
Specifically, the court stated: ‘‘Mr. Lofton, I want to go over something
with you that’s very important. As far as any testimony involving a homicide,
somebody was actually shot at in New Haven, that’s not any area that you
can talk about. You can talk about the fact that you—what you saw, but
that’s it. Is that clear?’’
18
Section 4-5 (b) of the 2009 edition of the Connecticut Code of Evidence
provides in relevant part: ‘‘Evidence of other crimes, wrongs or acts of a
person is admissible for purposes other than those specified in subsection
(a) such as to prove intent, identity, malice, motive, common plan or scheme,
absence of mistake or accident, knowledge, a system of criminal activity,
or an element of the crime, or to corroborate crucial prosecution testimony.’’
19
To the extent that the defendant summarily claims that there was no
probative value to the fact that Lofton observed the defendant discharging
the firearm, and all that was necessary was that he ‘‘saw the defendant
with a silver handgun and that [Lofton] heard gunshots,’’ we disagree. The
discharge of the gun by the defendant on July 9, 2011, directly connected
the defendant to the Waterbury shooting and showed that he had the means
to commit those crimes. See State v. Blango, 103 Conn. App. 100, 110, 927
A.2d 964, cert. denied, 284 Conn. 919, 933 A.2d 721 (2007); see also State
v. Stevenson, 53 Conn. App. 551, 571–72, 733 A.2d 253, cert. denied, 250
Conn. 917, 734 A.2d 990 (1999); State v. Sivri, 46 Conn. App. 578, 584, 700
A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).
20
The defendant appears to agree that the admission into evidence of the
collection of the bullets and casings from the New Haven crime scene and
the matching of those items found in Waterbury the night before did not
constitute an abuse of discretion.
21
‘‘Our Supreme Court has identified four factors relevant to determining
whether the admission of otherwise probative evidence is unduly prejudicial.
These are: (1) where the facts offered may unduly arouse the [jurors’]
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. . . . State v. Hill, 307 Conn. 689, 698, 59 A.3d 196
(2013).’’ (Internal quotation marks omitted.) State v. Toro, 172 Conn. App.
810, 816, A.3d (2017). The defendant’s appellate argument pertains
only to the first factor regarding the issue of undue prejudice; therefore,
we confine our analysis and discussion accordingly.