State v. Gray-Brown , 188 Conn. App. 446 ( 2019 )

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STATE OF CONNECTICUT v. DOVANTE
GRAY-BROWN
(AC 41385)
Alvord, Prescott and Flynn, Js.
Syllabus
Convicted of the crimes of felony murder, robbery in the first degree and
carrying a pistol without a permit in connection with the shooting death
of the victim, the defendant appealed, claiming, inter alia, that the trial
court improperly denied his motion to suppress certain evidence that
the police had seized from the bedroom of his home. The defendant
and a friend, G, had arranged a drug deal with the victim in order to
rob the victim of drugs and money. During the robbery, the defendant
shot and killed the victim. Subsequently, the police went to the apartment
where the defendant lived with his mother, C, and her husband at about
six o’clock in the morning to execute an arrest warrant for the defendant.
C told the police that the defendant was not home and gave the officers
verbal consent to search the home for him, including his bedroom. A
detective, L, thereafter obtained a consent form from his vehicle and
observed C as she read and signed the consent form before the police
began to search the bedroom. The police seized from the bedroom an
empty ammunition tray, rubber gloves and an electronic scale. Held:
1. The trial court properly denied the defendant’s motion to suppress the
evidence that the police seized during their search of his bedroom, as
that court’s findings that C had actual authority to consent to the search
of the defendant’s bedroom and that her consent was voluntary were
not clearly erroneous: C and her husband presumptively had actual
authority to consent to the search, as they were the leaseholders of the
apartment and the parents of the defendant, all of the twelve police
officers who came to the home, except L and two other detectives, left
before C consented to the search of the bedroom, C was unaware of
whether weapons were being carried by the officers, who obtained
verbal and written consent from C, and L reviewed the consent form
with her; moreover, the officers did not forcefully enter the home, there
was no evidence that they roused C out of bed, pointed their handguns
at anyone or used loud or threatening language, there was no evidence
that C initially refused to consent to the search or that the officers
implied that they would obtain a warrant upon her refusal to consent,
and C did not suggest that her decision to let the officers into her
apartment was anything but the product of her own free will; further-
more, the court’s conclusion that the defendant did not establish suffi-
ciently exclusive control of his bedroom so as to render C’s consent
ineffective was supported by the evidence, as his bedroom door, which
was not always locked, was not locked at the time of the search, C
testified that she regularly entered the bedroom to clean the floor and
that the defendant had never told her that she was not allowed in the
room, and although C testified that the defendant helped pay bills and
rent, which could tend to show that he had exclusive control over the
room, C did not provide concrete details about those financial contri-
butions.
2. The defendant’s claim that the trial court abused its discretion by admitting
into evidence the ammunition tray, latex gloves and electronic scale
was unavailing, as that court reasonably concluded that the evidence
the police seized from the defendant’s bedroom was relevant and that
its probative value outweighed any undue prejudice; the ammunition
tray was probative to show that the defendant stored and used nine
millimeter bullets, such as those that were used in the victim’s murder,
the latex gloves were relevant to explain why none of the DNA evidence
or fingerprints collected at the shooting scene were attributable to the
defendant, and the electronic scale was corroborative of G’s testimony
that the defendant participated in the scheme to rob the victim of drugs
and money, and tended to demonstrate that the defendant was involved
in the sale of drugs, which made his involvement in a scheme to steal
drugs more likely, and the items were not unduly prejudicial and were
not likely to arouse the emotions of the jury.
3. The evidence was insufficient to prove that the firearm used in the underly-
ing crime had a barrel of less than twelve inches in length, which was
required to sustain the defendant’s conviction of carrying a pistol without
a permit in violation of statute (§ 29-35 [a]): the testimony of F, a police
officer who used the generic term handgun to describe a spent shell
casing, was not evidence from which the jury could have reasonably
concluded that the firearm used in the victim’s shooting had a barrel
that was less than twelve inches in length, F did not testify that the
spent shell casings found at the crime scene came from a handgun, the
state presented no evidence that shell casings are ejected only from
handguns and that the shell casings could not have come from a firearm
with a barrel length of twelve inches or more, and the state’s ballistics
expert did not testify that bullets found at the crime scene had been
fired from a handgun; moreover, any inference that a sawed-off gun
barrel that was seized from the basement of the defendant’s home was
connected to the firearm used in the victim’s shooting would amount
to speculation, as there was no evidence as to what type of firearm the
sawed-off barrel came from, when the gun barrel was sawed off, if the
remaining portion of the barrel would be less than twelve inches in
length or whether the firearm would still be capable of firing without
the sawed-off portion, and L’s testimony that the sawed-off barrel could
fit into a .22 caliber weapon did not tie the barrel to the evidence
that was found at the crime scene or to any specific type of firearm;
furthermore, the type of ammunition that was used in the victim’s shoot-
ing did not help to establish that the length of the barrel of the firearm
was less than twelve inches, and G’s testimony was too vague and
imprecise to permit a jury reasonably to infer that the defendant had
used a firearm with a barrel length of less than twelve inches to shoot
the victim.
4. The trial court properly declined the defendant’s request to give the jury
a third-party culpability instruction, which the defendant claimed was
necessary due to the presence of a partial fingerprint of a third person
on the rental car that the victim had driven to the crime scene; the
defendant did not establish a direct connection between the third party
and the offense with which the defendant was charged, as the fingerprint
could have been left from innocuous activity rather than by someone
involved in the victim’s shooting, and there was no other evidence that
tended to show that the third party was involved in the victim’s shooting
or had a motive to commit the crime, or that the third party’s involvement
necessarily exculpated the defendant.
5. The trial court did not abuse its discretion when it declined to question
a juror, who had been dismissed after the jury returned its verdict, about
the defendant’s claim that the juror became aware that the defendant
was incarcerated when the juror saw him being transported to court
by a correctional officer during the first week of trial; it was within the
court’s discretion, especially in light of the limitations of the applicable
rule of practice (§ 42-33) and the state’s interest in preventing juror
harassment, to decline to question the dismissed juror after the court
conducted a hearing, evaluated the evidence from the hearing and deter-
mined that the defendant’s allegations were not credible.
Argued October 10, 2018—officially released March 12, 2019
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, robbery in the first degree
and carrying a pistol without a permit brought to the
Superior Court in the judicial district of Fairfield, where
the court, Kahn, J., denied the defendant’s motion to
suppress certain evidence; thereafter, the matter was
tried to the jury; verdict and judgment of guilty, from
which the defendant appealed. Reversed in part; judg-
ment directed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Colleen P. Zingaro, senior assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Dovante Gray-Brown,
appeals from the judgment of conviction, rendered after
a jury trial, of felony murder in violation of General
Statutes § 53a-54c, robbery in the first degree in viola-
tion of General Statutes § 53a-134 (a) (1) and carrying
a pistol without a permit in violation of General Statutes
§ 29-35 (a). The defendant claims on appeal that (1) the
trial court improperly denied his motion to suppress
several items of evidence taken from his bedroom
because his mother lacked authority to consent to a
search of his bedroom, (2) the court abused its discre-
tion by admitting those same items into evidence
because they were not relevant and were more prejudi-
cial than probative, (3) there was insufficient evidence
to prove, as required for the crime of carrying a pistol
without a permit, that the defendant possessed a fire-
arm that had a gun barrel less than twelve inches in
length, (4) the court improperly denied the defendant’s
request for a third-party culpability instruction, and (5)
the court improperly refused to question a juror regard-
ing an issue of juror partiality that was raised after
conviction. We agree with the defendant that there was
insufficient evidence to prove, as required by § 29-35
(a), that the length of the barrel of the firearm used to
commit the crime was less than twelve inches. Accord-
ingly, we reverse the judgment of conviction as to that
count with direction to render a judgment of acquittal
on the charge of carrying a pistol without a permit. We
are not persuaded, however, by the remainder of the
defendant’s claims and, accordingly, affirm the judg-
ment of conviction in all other respects.
The facts, as could have been reasonably found by
the jury, and procedural history, are as follows. The
defendant and his friend, Dominick Gonzalez, arranged
a drug deal with the victim, Dewayne Gardner, Jr., in
order to rob him of drugs and money. Gonzalez knew
the victim because the victim regularly supplied him
with drugs that he then resold. Gonzalez asked the
victim to meet him at 178 Poplar Street in Bridgeport
so that he could purchase drugs from him.
In the early morning of December 16, 2013, the victim,
believing he was going to sell narcotics to Gonzalez,
drove a rental car to 178 Poplar Street. Prior to the
meeting, the victim had exchanged text messages with
Gonzalez. Gonzalez texted the victim that he was on
his way to make the purchase and later texted that he
had arrived at 178 Poplar Street. Gonzalez, however,
had sent these text messages from several miles across
town. Gonzalez, who was unable to get a ride to the
agreed upon location, did not want to inform the victim
that the defendant would be engaging in the transaction
because the victim trusted Gonzalez more than the
defendant.
In addition to exchanging text messages with the
victim, Gonzalez was also in contact with the defendant.
Gonzalez exchanged more than one dozen calls with
the defendant between 12:30 a.m. and 3 a.m. The defen-
dant was at his home on 1022 Hancock Avenue in
Bridgeport during these calls. Hancock Avenue runs
parallel to Poplar Street, with direct access to 178 Pop-
lar Street through a vacant lot. The victim was in his
car when the defendant arrived, with a firearm, to carry
out the robbery. During the robbery, the defendant fired
multiple gunshots into the car from the front passenger
side, striking the victim.
Gonzalez later called the defendant to see if he had
succeeded in the robbery. The defendant admitted to
Gonzalez that he had shot the victim. The defendant
also told Gonzalez that, after shooting the victim and
fleeing the scene, he returned to take the victim’s phone
in order to dispose of it.
The police were called to the scene to respond to a
report of a car accident. After being shot, the victim
apparently attempted to flee the scene, but his vehicle
hit a parked car at 211 Poplar Street. The police found
an unspent nine millimeter bullet and two spent shell
casings in the street at 178 Poplar Street. In the victim’s
car, they found bulletholes, bullets, and shell casings
showing that a gunman had shot into the car from the
passenger side. The victim sat dead in the driver’s seat,
with multiple gunshot wounds.
Although the victim habitually carried a cell phone
and money with him, no wallet, money, cell phone, or
drugs, other than a small amount of marijuana, were
found in the car. A pocket of the victim’s pants was
turned inside out.
After obtaining the victim’s phone records, the police
spoke with Gonzalez and seized his phone for evidence.
The police arrested Gonzalez on a charge of felony
murder on December 21, 2013. Gonzalez initially lied
to the police to protect himself and the defendant, but
eventually cooperated with police and testified at trial
pursuant to a plea deal.
Gonzalez told police that they could find ammunition
that he and the defendant had been trying to sell in
the basement of the multifamily house in which the
defendant lived on the third floor. After obtaining con-
sent from the owner of the house, the police searched
the basement and did, in fact, find ammunition, as well
as the sawed off barrel of a gun. A few days later,
after obtaining consent from the defendant’s mother to
search the defendant’s bedroom, the police found, inter
alia, an electronic scale, rubber gloves, and a Remington
ammunition tray for nine millimeter bullets in his room.
Forensic testing of the bullets and casings found at
the crime scene indicated that they were fired from the
tured, however, by three different companies and dif-
fered in metal, shape and stampings.
The defendant eventually was charged with felony
murder, robbery in the first degree and carrying a pistol
without a permit. On November 30, 2016, the jury found
the defendant guilty of all charges. On the conviction
of felony murder, the court, Kahn, J., sentenced the
defendant to forty-five years of incarceration and five
years of special parole. Additionally, the court sen-
tenced the defendant to a concurrent ten year term of
incarceration on the count of robbery and a concurrent
five year term of incarceration for carrying a pistol
without a permit. This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the trial court improp-
erly denied his motion to suppress evidence collected
from his bedroom because the police illegally had
searched his room without a search warrant. Specifi-
cally, the defendant contends that the trial court
improperly concluded that his mother had the authority
to consent to the search of his bedroom and that she
did so voluntarily. According to the defendant, the war-
rantless entry by police into his bedroom violated his
constitutional rights, and, therefore, the evidence seized
from this search should have been suppressed. We
disagree.
In its oral decision on the defendant’s motion to sup-
press, the court found the following additional facts.
At approximately 6 a.m. on January 11, 2014, police
officers arrived at the defendant’s residence to execute
an arrest warrant for the defendant charging him with
felony murder. Approximately eight detectives and four
uniformed officers arrived at the residence.
The defendant’s mother, Claudette Brown, opened
the door. The officers advised her that they had a war-
rant to arrest the defendant on the charge of felony
murder. Brown told them that he was not home and
gave the officers verbal consent to search the home for
him. After searching the apartment and not locating
the defendant, many of the law enforcement officers
departed in an attempt to find the defendant at his
girlfriend’s house, where Brown said he might be. The
only officers who remained at the defendant’s residence
were Lieutenant Christopher Lamaine and two police
detectives.
Brown identified the defendant’s bedroom to the offi-
cers. Lamaine noticed that the door was open and that
the inside of the room was visible.1 Brown was coopera-
tive and gave permission to the officers to search the
bedroom. Brown was calm and did not have difficulty
communicating with the officers. Brown was aware that
the police were investigating the homicide for which
they had obtained an arrest warrant for her son.
Although the officers carried weapons at the time of
the search, at no point did they unholster their weapons
during their initial search for the defendant or during
the subsequent search of his bedroom.
After Brown gave verbal consent to search the defen-
dant’s bedroom, Lamaine left the apartment to retrieve
a consent form from his vehicle, which Brown subse-
quently signed.2 After reviewing the form with Brown,
and observing her reading and signing it, the officers
began to search the defendant’s bedroom. The detec-
tives seized a number of items from the bedroom,
including an ammunition tray, gloves, and an elec-
tronic scale.
We turn next to the well established law and standard
of review that governs the defendant’s claim. ‘‘A war-
rantless search is not unreasonable under either the
fourth amendment to the constitution of the United
States or article first, § 7, of the constitution of Connect-
icut if a person with authority to do so has freely con-
sented to the search. . . . The state bears the burden
of proving that the consent was free and voluntary
and that the person who purported to consent had the
authority to do so. . . . The state must affirmatively
establish that the consent was voluntary; mere acquies-
cence to a claim of lawful authority is not enough to
meet the state’s burden. . . . The question whether
consent to a search has in fact been freely and volunta-
rily given, or was the product of coercion, express or
implied, [as well as whether the individual providing
consent possessed the requisite authority] is a question
of fact to be determined from the totality of all the
circumstances. . . . As a question of fact, it is . . . to
be decided by the trial court upon the evidence before
that court together with the reasonable inferences to be
drawn from that evidence.’’ (Internal quotation marks
omitted.) State v. Azukas, 278 Conn. 267, 275, 897 A.2d
554 (2006).
‘‘On appeal, we apply a familiar standard of review
to a trial court’s findings and conclusions in connection
with a motion to suppress. A finding of fact will not be
disturbed unless it is clearly erroneous in view of the
evidence and pleadings in the whole record . . . . The
conclusions drawn by the trial court will be upheld
unless they are legally and logically inconsistent with
the evidence. . . . Because a trial court’s determina-
tion of the validity of a . . . [seizure] implicates a
defendant’s constitutional rights, however, we engage
in a careful examination of the record to ensure that
the court’s decision was supported by substantial evi-
dence.’’ (Internal quotation marks omitted.) State v.
Douros, 90 Conn. App. 548, 553–54, 878 A.2d 399, cert.
denied, 276 Conn. 914, 888 A.2d 85 (2005).
‘‘In order for third-party consent to be valid, the con-
senting party must have possessed common authority
over or other sufficient relationship to the premises or
effects sought to be inspected. . . . The authority that
justifies the third party consent rests on mutual use of
the property by persons who have joint access or con-
trol for most purposes, so that any of the inhabitants
has the right to permit the inspection in his own right,
and the others have assumed the risk that any of the
cohabitants might permit the common area to be
entered. . . .
‘‘We also note that the overwhelming majority of the
cases hold that a parent may consent to a police search
of a home that is effective against a child, if a son or
a daughter, whether or not still a minor, is residing in
the home with the parents . . . . To overcome this
authority, the child must establish sufficiently exclusive
possession of the room to render the parent’s consent
ineffective. . . . Factors that [our Supreme Court] pre-
viously [has] considered when evaluating whether a
child has established sufficiently exclusive possession
of the room include: whether the child is paying rent;
who has ownership of the home; whether the door to
the bedroom is generally kept closed; whether there is
a lock on the door; whether other members of the family
use the room; and whether other members of the family
had access to the room for any reason.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Azukas,
supra, 278 Conn. 277–78.
In its oral decision on the motion to suppress, the
trial court relied on State v. Douros, supra, 90 Conn.
App. 548, to support its conclusion that the defendant’s
mother had the authority to permit the police to search
the defendant’s bedroom.3 Douros is factually analo-
gous to the present case. In Douros, after the adult
defendant fled the scene of a domestic dispute, his
mother gave the police permission to search his bed-
room. Id., 551–52. This court held that there was evi-
dence to support the trial court’s finding that the
defendant’s mother exercised sufficient control over
his bedroom to validly consent to a search of it by
the police. Id., 555. In Douros, the defendant’s mother
owned the house in which the defendant and his mother
resided. Id., 555–56. Additionally, she stated that she
had access to the room and gave the police permission
to search the room. Id., 552. This court concluded that
the evidence supported the trial court’s factual findings.
Id., 556.
In the present case, the trial court’s finding that
Brown had actual authority to consent to the search of
the defendant’s bedroom is not clearly erroneous. She
and her husband were the leaseholders of the apartment
and the parents of the defendant and, thus, presump-
tively had actual authority to consent to a search. In
order to refute this presumption, the defendant must
establish sufficiently exclusive possession of the room
to render the parent’s consent ineffective.4 To establish
that he had exclusive control over the room, the defen-
dant argued that the door to his room had a lock. His
bedroom door, however, was not always locked and
was not locked at the time of the search. Brown testified
that she regularly entered the defendant’s bedroom to
clean the floor and that the defendant had never told
her that she was not allowed in the room. Although she
would knock if he was home, if the defendant was not
home and the door was unlocked, she would enter the
room. Brown also testified that the defendant ‘‘chipped
in’’ with bills and rent, which could tend to show that
he had exclusive control over the room. Brown did not,
however, provide concrete details about these financial
contributions, such as whether the defendant paid a
fixed amount of rent. In sum, the court’s conclusion
that Brown had actual authority to consent to the police
search was supported by the evidence. Further, the
court’s conclusion that the defendant did not establish
sufficiently exclusive control of his bedroom that would
render Brown’s consent ineffective was supported by
the evidence.
We next review the court’s finding that the consent
to search was voluntarily given. The defendant argues
that, under the totality of the circumstances, Brown’s
consent was not valid because she had been coerced
to give her consent. Specifically, the defendant argues
that Brown’s consent was coerced because the search
occurred in the early morning and twelve police officers
were present at the house.
The trial court’s finding that Brown’s consent was
voluntary was supported by the evidence and, therefore,
not clearly erroneous. Although twelve officers initially
arrived at the home, that number reflected the fact that
they had come to arrest someone who they believed to
be armed and responsible for a homicide. All of the
officers except Lamaine and two police detectives left
the house before the consent to the search occurred.
Brown was unaware as to whether the officers carried
weapons. The officers obtained both verbal and written
consent from Brown, and Lamaine reviewed the con-
sent form with her.
Although the officers arrived at about six o’clock in
the morning, the officers did not forcefully enter the
home. There is no evidence that the officers roused
Brown out of bed in the middle of the night, broke
down the door in the early hours of the morning, pointed
their handguns at anyone or used loud or threatening
language. See State v. Reynolds, 264 Conn. 1, 45, 836
A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct.
1614, 158 L. Ed. 2d 254 (2004). Additionally, there is no
evidence that Brown initially refused to consent to the
search or that the officers implied that they would
obtain a warrant upon her refusal to consent to the
search. Cf. State v. Brunetti, 279 Conn. 39, 57, 70, 901
A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct.
1328, 167 L. Ed. 2d 900 (2007). Finally, Brown did not
herself suggest, during her testimony or otherwise, that
her decision to let the officers into her apartment was
anything but the product of her own free will. See State
v. Reynolds, supra, 45–46. Therefore, the court properly
denied the defendant’s motion to suppress the evidence
seized by the police from the defendant’s room.
II
The defendant next claims that the trial court abused
its discretion by admitting into evidence the ammuni-
tion tray,5 latex gloves, and electronic scale6 found in
the defendant’s bedroom because the items were not
relevant and, even if relevant, they were more prejudi-
cial than probative. We disagree.
The following additional facts are relevant to this
claim. During Lamaine’s testimony, the defendant
objected to the admission into evidence of the ammuni-
tion tray, latex gloves, and electronic scale, arguing that
they were not relevant and were unduly prejudicial.
Specifically, the defendant argued that the Remington
brand ammunition tray, which was empty when police
seized it, was not relevant because the bullets recovered
at the crime scene were not made by Remington. Fur-
ther, the defendant argued that the scale did not have
relevance to the present case because, although it may
have been relevant to a drug related crime, it did not
relate to the murder of the victim. The defendant further
argued that the plastic gloves were not relevant because
they could be used for many legal purposes, and the
defendant had been training for employment in the
health care field.
The state argued that the items were relevant and
more probative than prejudicial because the ammuni-
tion tray linked the defendant to the bullets found in
the basement and at the crime scene, the scale tended
to prove that the defendant was meeting the victim to
steal drugs, which could later be resold, and the gloves
tended to explain why the defendant’s DNA and finger-
prints were not found at the crime scene. The court
agreed, ruling that the items were relevant and that
their probative value outweighed their prejudicial
effect.
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . Evidence is relevant if it tends to make the exis-
tence or nonexistence of any other fact more probable
or less probable than it would be without such evidence.
. . . To be relevant, the evidence need not exclude all
other possibilities; it is sufficient if it tends to support
the conclusion [for which it is offered], even to a slight
degree. . . . Evidence is not rendered inadmissible
because it is not conclusive. All that is required is that
the evidence tend[s] to support a relevant fact even to
a slight degree, so long as it is not prejudicial or merely
cumulative. . . .
‘‘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 jury. . . . Reversal is required only
[if] an abuse of discretion is manifest or [if an] injustice
appears to have been done.’’ (Citations omitted; internal
quotation marks omitted.) State v. Wilson, 308 Conn.
412, 429–30, 64 A.3d 91 (2013).
In the present case, we agree with the court that the
empty ammunition tray was probative to show that the
defendant stored and used nine millimeter bullets such
as those that were used in the underlying murder.
Lamaine testified that it appeared that nine millimeter
bullets would fit in the empty Remington ammunition
tray. Thus, the empty ammunition tray found in the
defendant’s bedroom provided a potential link to the
nine millimeter bullets and shell casings that were found
at the scene of the shooting, as well as the ammunition
seized from the basement of the defendant’s home.
Moreover, the fact that the ammunition tray was manu-
factured by Remington, but none of the bullets or shell
casings found at the scene were made by Remington,
does not vitiate the probative value of the ammunition
tray because the assortment of bullets in the basement
and at the crime scene tended to demonstrate that the
defendant did not use bullets from a single manufac-
turer. In sum, the empty ammunition tray tended to
demonstrate that these items were all connected to
the defendant.
We also agree that the latex gloves were relevant to
explain why none of the DNA evidence or fingerprints
collected at the scene was attributable to the defendant.
Gonzalez testified that the defendant wore gloves when
he committed robberies. A forensic scientist, called as
a witness by the state, testified that gloves could prevent
the transfer of fingerprints. Additionally, a forensic sci-
entist, called by the defense, admitted that gloves could
prevent the transfer of DNA. Therefore, the defendant’s
possession of latex gloves provided an explanation for
the absence of his DNA and fingerprints at the crime
scene and was, therefore, highly probative.
Finally, the presence of an electronic scale in the
defendant’s bedroom tended to demonstrate that the
defendant was involved in the sale of drugs and was
corroborative of Gonzalez’ testimony that the defendant
participated in the scheme to rob the victim of drugs
and money. Although the defendant argues that a scale
was not needed for this particular robbery, it was none-
theless relevant to show that he sold drugs, making his
involvement in a scheme to steal drugs more likely.
Although damaging to the defendant, these items
were not unduly prejudicial. The admission of the elec-
tronic scale, which tends to show that the defendant
was involved in the sale of drugs, was unlikely to shock
the jury because Gonzalez later testified, without objec-
tion, that the defendant used and sold drugs. Gonzalez
also testified, without objection, that the defendant car-
ried firearms and wore gloves during robberies to pre-
vent leaving evidence that would connect him to the
crime. Thus, these items were not likely to arouse the
emotions of the jury any more than the testimony pro-
vided by Gonzalez. Moreover, there is nothing inherent
in the nature of the items that would likely overcome
the reason of, or, ‘‘ ‘improperly arouse the emotions’ ’’
of the jury. State v. Wilson, supra, 308 Conn. 430. There-
fore, the court reasonably concluded that the evidence
was relevant and that its probative value outweighed
any undue prejudice to the defendant.
III
The defendant next claims that there was insufficient
evidence to sustain his conviction of carrying a pistol
without a permit under § 29-35 (a). Specifically, the
defendant argues that the state failed to introduce suffi-
cient evidence from which the jury reasonably could
have concluded beyond a reasonable doubt that the
length of the barrel of the firearm used to commit the
crime was less than twelve inches. In support of his
insufficiency claim, the defendant points to the fact that
there were no known eyewitnesses to the shooting and
that the firearm used to shoot the victim was never
found. Additionally, the defendant argues that the jury
was not presented with other circumstantial evidence
from which it reasonably could have inferred that the
length of the barrel of the firearm used to commit the
crime was less than twelve inches.
In response, the state contends that the following
circumstantial evidence presented to the jury permitted
it reasonably to infer beyond a reasonable doubt that
the defendant had used a firearm with a barrel less
than twelve inches in length to shoot the victim: (1)
testimony that the spent casings at the scene were fired
from a handgun; (2) the sawed-off barrel the police
discovered in the defendant’s basement; (3) the ballis-
tics evidence recovered at the crime scene and ammuni-
tion found in the defendant’s basement; (4) the fact that
the crime scene bullets and casings came from the same
gun; and (5) testimony that Gonzalez and the defendant
carried guns whenever they sold drugs, the defendant
was a ‘‘stickup guy,’’ and, in a prior robbery, the defen-
dant used a .22 caliber revolver. We agree with the
defendant that the evidence was insufficient to prove
beyond a reasonable doubt that he violated § 29-35 (a).
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency 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.’’ (Citation omitted;
internal quotation marks omitted.) State v. Perkins, 271
Conn. 218, 246, 856 A.2d 917 (2004).
‘‘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 expe-
rience, 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 omit-
ted.) State v. Reynolds, supra, 264 Conn. 93.
‘‘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. . . .
‘‘[A]s we have often noted, proof beyond a reasonable
doubt does not mean proof beyond all possible doubt
. . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence 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 reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [finder of fact’s] verdict of guilty.’’ (Citation omitted;
internal quotation marks omitted.) State v. Perkins,
supra, 271 Conn. 246–47.
Finally, ‘‘[w]e . . . emphasize the weighty burden
imposed on the state by the standard of proof beyond
a reasonable doubt. Under bedrock principles of our
criminal justice system, it is obviously not sufficient
for the state to prove simply that it is more likely than
not that the defendant was convicted of [the offense],
or even that the evidence is clear and convincing that
he was so convicted. . . . Our Supreme Court has
described the beyond a reasonable doubt standard as
a subjective state of near certitude . . . .’’ (Citation
omitted; internal quotation marks omitted.) State v.
Tenay, 156 Conn. App. 792, 810, 114 A.3d 931 (2015).
We now turn to the essential elements of the offense.
Section 29-35 (a) provides in relevant part: ‘‘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 issued as provided in section 29-28
. . . .’’ ‘‘[T]o obtain a conviction for carrying a pistol
without a permit, the state [is] required to prove beyond
a reasonable doubt that the defendant (1) carried a
pistol, (2) for which he lacked a permit, (3) while out-
side his dwelling house or place of business. . . .
‘‘The term pistol and the term revolver . . . as used
in [General Statutes §§] 29-28 to 29-38, inclusive, mean
any firearm having a barrel less than twelve inches in
length. General Statutes § 29-27. In cases in which a
violation of § 29-35 is charged, the length of the barrel
is . . . an element of [the] crime and must be proven
beyond a reasonable doubt. . . . We observe, however,
that, like the other essential elements of the offense,
the length of the barrel of a pistol or revolver may be
proven by circumstantial, rather than direct, evidence.
Direct numerical evidence is not required to establish
the length of the barrel of a handgun in question.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Covington, 184 Conn. App. 332, 340, 194 A.3d 1224,
cert. granted on other grounds, 330 Conn. 933, 195 A.3d
383 (2018).
Next, we examine the circumstantial evidence pre-
sented at trial from which the state contends a jury
reasonably could conclude that the firearm carried by
the defendant had a barrel length of less than twelve
inches. First, the state cites Officer Thomas Flaherty’s
testimony that the shell casings ‘‘were fired from a
handgun.’’ The state argues that ‘‘Officer Flaherty’s tes-
timony alone, that the bullet casings were shot from a
‘handgun,’ satisfies the element.’’7
The state, however, takes this testimony out of con-
text. The following exchange occurred between the
prosecutor and Officer Flaherty:
‘‘Q. And with regard to the spent casings, can you
describe to the jury what that means?
‘‘A. Rounds that were fired from a handgun. There’s—
a projectile discharged from the firearm. It’s just the
shell casing itself that, after a—after being fired, it’s
going to be in the area of—where the shots were fired.’’
When Officer Flaherty used the word ‘‘handgun,’’ he
was speaking in general terms. Indeed, in the very next
sentence, he refers more generally to a ‘‘firearm.’’ In
context, Officer Flaherty was not testifying that the
spent shell casings found at the scene came specifically
from a handgun. The state did not present any evidence
that shell casings are ejected only from handguns and
that the shell casings could not have come from a fire-
arm with a barrel length of twelve inches or more.
Moreover, the state’s ballistics expert did not testify
that the bullets found at the crime scene had been fired
from a handgun. The use of the generic term ‘‘handgun’’
during Officer Flaherty’s testimony to describe a spent
shell casing for the jury was not evidence from which
the jury could have reasonably concluded that the fire-
arm used in the crime in this case had a barrel that was
less than twelve inches in length.
Next, the state argues that the jury could infer that
the defendant carried a short-barreled firearm because
the police seized a sawed-off gun barrel from his base-
ment. In its brief, the state argues that ‘‘[t]he sawed-
off barrel in his basement showed that [the defendant]
had customized a long-barreled gun into a short-bar-
reled gun.’’ There is no evidence, however, that con-
nects the gun barrel found in the basement to any
firearm carried by the defendant or used to shoot the
victim. The state’s ballistics expert did not testify about
the gun barrel. There is no evidence as to what type of
firearm the barrel came from, when the gun barrel was
sawed off, if the remaining portion of the barrel would
be less than twelve inches in length, or whether the
firearm would still be capable of firing without the
sawed-off portion. The only testimony regarding what
type of firearm the barrel came from was during the
following colloquy between the prosecutor and
Lamaine:
‘‘Q. Detective, do you have any knowledge as to what
type of weapon that barrel could fit into?
‘‘A. I believe it was a .22 caliber.
‘‘Q. Do you want to look at it?
‘‘A. May I look at it?
‘‘Q. Yeah.
‘‘A. Refresh my recollection. It’s been a while. I don’t
see any markings. I mean, if you want to draw my
attention to some but—
‘‘Q. No. I just thought you might know.
‘‘A. No.
‘‘Q. But that particular item is meant to fit into a
gun; correct?
‘‘A. It is a gun barrel that’s been sawed off, yes.’’
Lamaine’s testimony simply establishes only that it
was, in fact, a sawed-off gun barrel. This testimony does
not tie the barrel to the evidence found at the crime
scene or to any specific type of firearm whatsoever.
Further, there was no testimony that a .22 caliber fire-
arm was capable of shooting nine millimeter bullets,
such as those recovered from the scene. Thus, any
inference that the gun barrel was connected to the
firearm used in the shooting would amount to sheer
speculation.
The state also asserts that the jury was entitled to
infer that the length of the barrel of the firearm used
to commit the shooting was less than twelve inches
from the ballistics evidence found at the crime scene
and in the defendant’s basement. We are not persuaded.
The state’s expert in the field of firearm and tool mark
examinations provided no testimony about the types
of firearms that use nine millimeter ammunition or the
barrel lengths of such firearms. Therefore, the type of
ammunition, without more, does not help to establish
that the length of the barrel of the firearm used to
commit the offense was less than twelve inches.
Finally, the state relies on certain portions of Gonza-
lez’ testimony as circumstantial evidence that the barrel
of the firearm was less than twelve inches. Specifically,
the state relies on Gonzalez’ acknowledgment that the
defendant was a stickup guy in response to a question
by defense counsel, and his testimony that the defen-
dant had used a .22 caliber revolver in a prior robbery
and that he and the defendant kept guns on them ‘‘[j]ust
in case.’’ Specifically, the state argues that the jury could
infer from this testimony that the defendant carried a
handgun that he could easily conceal and, thus, that
the gun used in the shooting must have had a barrel
less than twelve inches in length.
Regarding Gonzalez’ acknowledgment that the defen-
dant was a stickup guy, the state cites to Augustine v.
State, 201 Miss. 277, 291, 28 So. 2d 243 (1946), to contend
that ‘‘the common understanding of ‘stick-up’ is a hold-
up, usually by use of a pistol.’’8 Therefore, the state
asserts, Gonzalez’ acknowledgment that the defendant
was a stickup guy supports a finding that the gun used
by the defendant was a pistol or a gun with a barrel
length less than twelve inches. We are not persuaded
by this argument. The word ‘‘stickup’’ is commonly
understood as meaning a robbery with the use of any
weapon. See, e.g., Black’s Law Dictionary (10th Ed.
2014) p. 1640 (defining ‘‘stickup’’ as ‘‘[a]n armed robbery
in which the victim is threatened by the use of weap-
ons’’). Therefore, testimony that the defendant was a
stickup guy was not circumstantial evidence from
which the jury reasonably could infer that the length
of the gun barrel of the firearm used to commit the
offense was less than twelve inches.
We are also unpersuaded that Gonzalez’ testimony
that the defendant used a revolver in a prior robbery
and kept a gun on him ‘‘[j]ust in case’’ was evidence
from which the jury reasonably could infer that the
defendant had used a revolver or other short-barreled
firearm in the present case. Testimony that the defen-
dant merely carried a ‘‘gun’’ on him, with no specificity
regarding the size of the firearm, is not probative of
whether the firearm used in the present case was a
handgun with a barrel length of less than twelve inches.
Moreover, Gonzalez’ testimony that the defendant pos-
sessed a .22 caliber revolver is actually inconsistent
with the ballistics evidence collected at the crime scene.
That evidence suggests that a nine millimeter firearm
was used. Consequently, the defendant’s prior posses-
sion of a .22 caliber revolver lacks probative value
regarding the type of firearm used in the present case.
The testimony of Gonzalez is simply too vague and
imprecise to permit a jury reasonably to infer that the
defendant used a firearm with a barrel length of less
than twelve inches to shoot the victim in the present
case.
In sum, the jury reasonably could not have concluded
beyond a reasonable doubt that the firearm used by the
defendant in the underlying crime had a barrel of less
than twelve inches in length. We therefore conclude that
there was insufficient evidence to prove the required
elements under § 29-35 and the defendant’s conviction
on that charge must be reversed.
IV
The defendant next claims that the court improperly
declined his request to give a third-party culpability
instruction to the jury. We disagree.
The following additional facts are relevant to this
claim. The police found two fingerprints on the column
along the passenger door of the victim’s car. The loca-
tion of the fingerprints suggested that ‘‘somebody [had
been] reaching in [to the car].’’ One of the fingerprints
matched with someone named Allen Garrett through
the Automated Fingerprint Identification System.9 The
defendant offered no other information about Garrett
into evidence.
Prior to the close of evidence, the defendant submit-
ted a written request for a third-party culpability instruc-
tion. The court held a charge conference in which it
heard argument on the defendant’s request for a third-
party culpability instruction. The defendant argued that,
on the basis of the presence of Garrett’s fingerprint on
the victim’s vehicle, he was entitled to a third-party
culpability instruction. The court denied the defen-
dant’s request for a third-party culpability instruction,
concluding that ‘‘the factual predicate for [it did] not
exist.’’10
‘‘In determining whether the trial court improperly
refused a request to charge, [w]e . . . review the evi-
dence presented at trial in the light most favorable to
supporting the . . . proposed charge. . . . A request
to charge which is relevant to the issues of [a] case and
which is an accurate statement of the law must be given.
. . . If, however, the evidence would not reasonably
support a finding of the particular issue, the trial court
has a duty not to submit it to the jury. . . . Thus, a
trial court should instruct the jury in accordance with
a party’s request to charge [only] if the proposed instruc-
tions are reasonably supported by the evidence. . . .
‘‘It is well established that a defendant has a right to
introduce evidence that indicates that someone other
than the defendant committed the crime with which
the defendant has been charged. . . . The defendant
must, however, present evidence that directly connects
a third party to the crime. . . . It is not enough to show
that another had the motive to commit the crime . . .
nor is it enough to raise a bare suspicion that some
other person may have committed the crime of which
the defendant is accused. . . .
‘‘The admissibility of evidence of third party culpabil-
ity is governed by the rules relating to relevancy. . . .
Relevant evidence is evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
Accordingly, in explaining the requirement that the
proffered evidence establish a direct connection to a
third party, rather than raise merely a bare suspicion
regarding a third party, we have stated: Such evidence
is relevant, exculpatory evidence, rather than merely
tenuous evidence of third party culpability [introduced
by a defendant] in an attempt to divert from himself
the evidence of guilt. . . . In other words, evidence
that establishes a direct connection between a third
party and the charged offense is relevant to the central
question before the jury, namely, whether a reasonable
doubt exists as to whether the defendant committed the
offense. Evidence that would raise only a bare suspicion
that a third party, rather than the defendant, committed
the charged offense would not be relevant to the jury’s
determination. A trial court’s decision, therefore, that
third party culpability evidence proffered by the defen-
dant is admissible, necessarily entails a determination
that the proffered evidence is relevant to the jury’s
determination of whether a reasonable doubt exists as
to the defendant’s guilt. . . .
‘‘[I]f the evidence pointing to a third party’s culpabil-
ity, taken together and considered in the light most
favorable to the defendant, establishes a direct connec-
tion between the third party and the charged offense,
rather than merely raising a bare suspicion that another
could have committed the crime, a trial court has a duty
to submit an appropriate charge to the jury.’’ (Citations
omitted; emphasis added; internal quotation marks
omitted.) State v. Arroyo, 284 Conn. 597, 607–10, 935
A.2d 975 (2007).
In the present case, the trial court concluded that a
third-party culpability instruction was not warranted
by a partial fingerprint of a third person on the vehicle
in the absence of other evidence connecting that person
to the crime. The fingerprint could have been left from
innocuous activity, rather than from someone involved
in the commission of the crime. Although there was no
direct evidence as to the ownership of the vehicle the
victim used on the night of the shooting, the victim was
known to use rental cars, and, in such instances, third
parties would readily have had access to the same car.
With nothing more, a partial fingerprint on the outside
of the car door does not satisfy the requirement that
there be a direct connection between a third party and
the crime.
The present case is factually analogous to State v.
James, 141 Conn. App. 124, 136–37, 60 A.3d 1011, cert.
denied, 308 Conn. 932, 64 A.3d 331 (2013). In James,
two pieces of evidence, a hat with a ‘‘mixed sample’’
of DNA and multiple fingerprints lifted from a car, were
linked to the defendant, as well as unidentified persons.
Id. 136–37. The hat was a ‘‘mixed sample,’’ meaning that
more than one person, including the defendant, had
contributed to its DNA profile. Id. The car had finger-
prints of the defendant and his accomplice, as well as
five fingerprints that did not belong to them. Id., 136.
Prior to closing arguments, the defendant requested a
third-party culpability charge on the basis of this infor-
mation, which the trial court denied. Id., 137. This court
ultimately held that ‘‘when viewed in a light most favor-
able to the defendant, the proffered DNA and fingerprint
evidence only indirectly and tenuously implicated third
parties without directly absolving or exculpating the
defendant, [and] the court did not abuse its discretion
by refusing to give a third party culpability instruction.’’
(Emphasis added.) Id., 138–39. As in James, the finger-
print evidence relating to Garrett only indirectly and
tenuously implicated him in this case.
There simply was no other evidence that could tend
to show that Garrett was somehow involved in the
commission of the victim’s murder, had a motive to
commit the crime, or that his involvement necessarily
exculpated the defendant from involvement as well.
Thus, even when we consider this evidence in the light
most favorable to the defendant, it did not establish a
direct connection between the third party and the
charged offense. Accordingly, we conclude that the trial
court properly determined that the defendant was not
entitled to a jury instruction on third-party culpability.
V
The defendant’s final claim on appeal is that the court
improperly declined to question a juror regarding an
issue of juror partiality that was raised after the jury
returned its verdict. Specifically, the defendant claims
that the court’s inquiry was inadequate under State v.
Brown, 235 Conn. 502, 668 A.2d 1288 (1995), and that
the court should have summoned the identified juror
back to court and questioned him regarding the event
that gave rise to a question about his partiality. We
disagree.
The following additional facts are relevant to this
claim. On January 27, 2017, after the defendant was
found guilty, but prior to sentencing, he filed a motion
for a hearing. The defendant claimed in that motion
that a juror had seen him being transported to court
by a correctional officer during the first week of trial
and thus became aware that he was incarcerated. This
knowledge, the defendant argues, violated his constitu-
tional right to the presumption of innocence. The court
granted the motion in part and a hearing was held on
the issue.
At the hearing, the defendant testified to the following
facts. A juror, who was driving a truck behind the defen-
dant, saw the defendant while he was being transported
to court in a prisoner transport vehicle. During trans-
port, the defendant was wearing an orange jumpsuit,
shackles and handcuffs, and was traveling in a light
gray sedan with no markings and windows that were
not tinted.11 The defendant was sitting across the seat
with his back to the driver’s side door and his legs up.
When he saw the defendant, the juror covered his face
with a folder and slowed his vehicle in order to put
distance between the two cars. The defendant first testi-
fied that this interaction took five to six minutes, but
on cross-examination, stated it was likely just over a
minute. He also testified that he immediately told his
attorney about the incident. His attorney, however, did
not remember the defendant informing him of the inci-
dent and had no notes recounting it.
After the hearing, the court denied the defendant’s
request to question the juror who allegedly saw him
being transported to court. The court found that the
defendant was not credible, and that even if the facts
alleged by the defendant were to be believed, there was
no basis for further inquiry.
We turn to the law that governs the defendant’s
claim.12 ‘‘Jury impartiality is a core requirement of the
right to trial by jury guaranteed by the constitution of
Connecticut, article first, § 8, and by the sixth amend-
ment to the United States constitution. . . . In essence,
the right to jury trial guarantees to the criminally
accused a fair trial by a panel of impartial, indifferent
jurors. . . . The modern jury is regarded as an institu-
tion in our justice system that determines the case solely
on the basis of the evidence and arguments given [it]
in the adversary arena after proper instructions on the
law by the court. . . . Consideration [by the jury] of
extrinsic evidence is presumptively prejudicial because
it implicates the defendant’s constitutional right to a
fair trial before an impartial jury. . . .
‘‘In the past, [our Supreme Court has] recognized that
the trial court has broad discretion to determine the
form and scope of the proper response to allegations
of jury misconduct. . . . In exercising that discretion,
the trial court must zealously protect the rights of the
accused. . . . We have limited our role, on appeal, to
a consideration of whether the trial court’s review of
alleged jury misconduct can fairly be characterized as
an abuse of its discretion. . . . Even with this circum-
scribed role, we have reserved the right to find an abuse
of discretion in the highly unusual case in which such
an abuse has occurred. . . . The trial judge’s discre-
tion, which is a legal discretion, should be exercised
in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of
substantial justice.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 522–24.
‘‘Although both the state and a criminal defendant
have an interest in impartial jury trials . . . after a jury
verdict has been accepted, other state interests emerge
that favor proceedings limited in form and scope. The
state has a strong interest in the finality of judgments
. . . and in protecting the privacy and integrity of jury
deliberations, preventing juror harassment and main-
taining public confidence in the jury system.’’ (Citations
omitted.) Id., 531.
Finally, Practice Book § 42-33 provides: ‘‘Upon
inquiry into the validity of a verdict, no evidence shall be
received to show the effect of any statement, conduct,
event or condition upon the mind of a juror nor any
evidence concerning mental processes by which the
verdict was determined. Subject to these limitations, a
juror’s testimony or affidavit shall be received when it
concerns any misconduct which by law permits a jury
to be impeached.’’ Therefore, a trial court must proceed
carefully in examining jurors regarding their verdict for
fear of straying into an improper examination of the
mental processes used by the jurors in reaching their
verdict. Cf. State v. Johnson, 288 Conn. 236, 264–65,
951 A.2d 1257 (2008).
In the present case, the court held a hearing regarding
the alleged misconduct and concluded that the defen-
dant’s allegations were not credible. The court simply
did not believe that the defendant told his attorney
about the alleged incident or that the incident happened
at all. After listening to testimony from the defendant
and reviewing cases cited by counsel, the trial court
held that there was ‘‘no factual or legal basis to conduct
any further inquiry into [the] matter, nor [was] there a
factual or legal basis for either the relief requested,
which [was] further inquiry of . . . the juror who alleg-
edly saw the defendant in a vehicle . . . [and] a motion
for a new trial.’’ The court concluded that, even if the
allegations were credited, the defendant was essentially
in a civilian vehicle, that due to his position in the
vehicle, his shackles and handcuffs would not have
been visible, and that it was unclear whether his cloth-
ing would have been visible.
The defendant relies on State v. Brown, supra, 235
Conn. 502, to argue that the court was required to sum-
mon the juror for questioning. Brown, however, is not
factually similar to the present case. In Brown, an anon-
ymous letter was sent to a judge alleging jury miscon-
duct in a case over which the judge had presided. Id.,519–20. Defense counsel learned of the letter on the
day of sentencing. Id., 520. At that time, the defendant
orally amended his motion for a new trial to include
the alleged jury misconduct. Id., 520–21. The court
heard brief argument on both the defendant’s motion
for a judgment of acquittal and motion for a new trial,
and subsequently denied both motions. Id., 521. On
appeal, the defendant argued that the trial court had
violated his state and federal constitutional rights by
failing to conduct an evidentiary hearing to investigate
the allegations of jury misconduct in the letter. Id. Our
Supreme Court held that, although an evidentiary hear-
ing was not required, ‘‘in the circumstances of this case,
the trial court improperly failed to conduct any inquiry
whatsoever specifically addressing the allegations of
jury misconduct contained in the letter.’’ (Emphasis
added.) Id.
Brown was ‘‘one of [the] highly unusual cases of an
abuse of discretion.’’ Id., 524. ‘‘Although written anony-
mously, the letter was accurately addressed to the judge
who had presided over the defendant’s trial and con-
tained accurate information about the defendant and
the charges involved in the case. The letter also con-
tained specific and facially credible allegations of jury
exposure to racially derogatory remarks regarding the
defendant allegedly made by court officials, and named
as the source of these allegations a person who was
accurately identified as a juror.’’ Id., 524–25.
In the present case, and unlike Brown, the court held
a hearing regarding the alleged juror misconduct and
determined that the defendant’s allegations were not
credible. It was well within the discretion of the court,
especially considering the limitations of Practice Book
§ 42-33 and the state’s interest in preventing juror
harassment, to decline to question a dismissed juror
after evaluating the evidence from the hearing and
determining that the allegations of misconduct simply
were not credible. Brown does not require the court
to conduct a full evidentiary hearing, and certainly does
not require the court always to question a juror. There-
fore, the court did not abuse its discretion by declining
to question the juror regarding the alleged incident and
by denying the defendant’s request for a new trial.
The judgment is reversed only as to the conviction
of carrying a pistol without a permit in violation of § 29-
35 (a) and the case is remanded with direction to render
judgment of not guilty on that charge; the judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
The record is unclear as to whether Lamaine observed that the defen-
dant’s bedroom door was open when the officers first arrived to the apart-
ment, or after the initial search for the defendant.
2
The form stated: ‘‘I, Claudette Brown, having been informed of my consti-
tutional right not to have a search conducted without a search warrant and
my right to refuse to consent to such a search, I do hereby consent to have
the following members conduct a complete search of my residence, place
of business, garage and/or place located at 1022 Hancock [Avenue], third
floor, Bridgeport, Connecticut.’’ The notice further stated that ‘‘these officers
are authorized to take from the aforesaid mentioned location such materials
or other property as they may desire and examine and perform tests on any
and all items seized.’’ It also states that ‘‘this written permission is being
given by me to the above named officers voluntarily and without duress,
threats, intimidation, or promises of any kind.’’ The notice was then signed
by Brown and two of the detectives or officers as witnesses.
3
If a person who does not have actual authority consents to a search,
the search may still be valid under the doctrine of apparent authority. The
United States Supreme Court has recognized an apparent authority doctrine,
under which ‘‘a warrantless entry is valid when based upon the consent of
a third party whom the police, at the time of the entry, reasonably believe
to possess common authority over the premises, but who in fact does not
do so.’’ Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S. Ct. 2793, 111 L. Ed.
2d 148 (1990). The defendant argues that the trial court decided the motion
to suppress on the basis of the doctrine of apparent authority, rather than
actual authority, because it relied on Douros, which the defendant argues
is an apparent authority case. We are not persuaded by the defendant’s
argument that Douros was decided on the doctrine of apparent authority.
See State v. Azukas, supra, 278 Conn. 280 n.6. The court in Douros, and the
trial court in the present case, decided their respective cases on the basis
of the consenting party’s actual authority. Therefore, we do not undergo an
analysis of the reasonableness of the officer’s inquiry as required by the
apparent authority doctrine. See generally State v. Buie, 312 Conn. 574, 94
A.3d 608 (2014).
4
Our Supreme Court’s decision in State v. Azukas, supra, 278 Conn. 278,
imposes a burden shifting framework in circumstances in which ‘‘a son or
daughter, whether or not still a minor, is residing in the home with the
parents . . . .’’ In such circumstances, our Supreme Court has concluded
that the child must overcome the presumptive authority of a parent to
consent to search with sufficient evidence that the child has exclusive
possession of the bedroom.
5
An ammunition tray is a tray designed to store bullets. Each hole in the
tray is designed to hold one round of ammunition. The tray is a part of the
packaging that is often included with the purchase of rounds of ammunition.
6
An electronic scale is customarily used by narcotics sellers to weigh
narcotics in order to package and sell them. See State v. McNeil, 154 Conn.
App. 727, 731, 106 A.3d 320, cert. denied, 316 Conn. 908, 111 A.3d 884 (2015).
7
The state relies on State v. Miles, 97 Conn. App. 236, 242, 903 A.2d 675(2006), for the proposition that testimony that a ‘‘handgun’’ was used in the
commission of the offense is enough to establish beyond a reasonable doubt
that the firearm had a barrel of less than twelve inches. See also State v.
Williams, 231 Conn. 235, 252, 645 A.2d 999 (1994), overruled in part on
other grounds by State v. Murray, 254 Conn. 472, 487, 757 A.2d 578 (2000);
State v. Covington, supra, 184 Conn. App. 345; State v. Fleming, 111 Conn.
App. 337, 347, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d
794 (2009); State v. Williams, 48 Conn. App. 361, 370–72, 709 A.2d 43, cert.
denied, 245 Conn. 907, 718 A.2d 16 (1998). The state places far more weight
on Miles than it will bear. In Miles, and the other cases cited previously,
there was testimony by an eyewitness who actually saw the firearm that
was used during the commission of the offense and described it to be a
‘‘handgun,’’ a small pistol, or otherwise described how the firearm was
handled or stored in a way such that it was likely to have a barrel length
of less than twelve inches. Here, there was no eyewitness who observed
the firearm used by the defendant and stated that it could be held in one
hand or concealed in a small space.
8
We note that the Mississippi Supreme Court cited no authority for this
common understanding. Moreover, this case was decided almost seventy-
five years ago and common parlance changes over time and geographic areas.
9
The Automated Fingerprint Identification System is a database of all the
images of the fingerprints taken either during an arrest booking procedure
or fingerprints submitted for background checks through job application
procedures. The database is kept in the state police bureau of identification.
10
The court however, did not preclude the defendant from arguing during
closing arguments that the presence of Garrett’s fingerprint raised a reason-
able doubt regarding the defendant’s guilt.
11
After the hearing had concluded, but before sentencing, the court con-
tacted marshals at the Department of Correction and determined that the
windows were, in fact, tinted. The court noted that this information did not
affect the outcome of the hearing.
12
Although we examine the defendant’s claim under the rubric of juror
misconduct, we recognize that even if the defendant’s version of events
were true, these events would not constitute misconduct by a juror, but
are more properly characterized as implicating the juror’s partiality. See
generally Daley v. J.B. Hunt Transport, Inc., 187 Conn. App. 587, A.3d
(2019) (contrasting juror misconduct from questions of juror com-
petency).