State v. Jarmon ( 2020 )

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STATE OF CONNECTICUT v. JAMES JARMON
(AC 42357)
Alvord, Prescott and Flynn, Js.
Syllabus
Convicted, after a jury trial, of the crimes of home invasion, burglary in the
first degree, robbery in the first degree and stealing a firearm in connec-
tion with the theft of certain firearms from N’s house, the defendant
appealed to this court. Held:
1. The defendant could not prevail on his claim that the state presented
insufficient evidence to prove beyond a reasonable doubt the operability
of each of the stolen firearms, as the cumulative effect of the evidence,
when construed in a light most favorable to sustaining the jury’s verdict,
supported the jury’s ultimate conclusion that the state demonstrated
operability beyond a reasonable doubt: the evidence presented sup-
ported an inference of operability because, from that evidence, the jury
reasonably could have concluded that the guns were operable, as they
were stored in N’s bedroom in cases or bags with safety locks on and
access was restricted to the bedroom, which evinced an awareness that
the firearms were dangerous, and it was reasonable to infer that operable
firearms would trigger such concern, and the fact that N’s mother would
not permit the firearms to be stored anywhere other than securely in
the bedroom and that that ultimatum was assiduously followed by N
further supported an inference that the firearms were operable; more-
over, the jury reasonably could have inferred that N’s storing of his
handgun in a nightstand beside his bed where, while asleep, he might
be most vulnerable permitted an inference that he possessed the hand-
gun for security purposes, and the jury then could have inferred that
such a handgun was operable; furthermore, given that, at the time the
firearms were stolen, they had been in N’s possession for no longer
than one year and sixteen days from N’s earliest purchase and that the
only time the firearms left N’s bedroom was to go to the training grounds,
which the jury reasonably could have inferred was a place to fire the
guns, the guns were fired at least once during the time N possessed
them, and the jury reasonably could have inferred that the firearms were
operable upon purchase and remained operable when they were stolen.
(One judge dissenting)
2. The defendant could not prevail on his claim that the trial court errone-
ously admitted into evidence a letter that he had written to his mother
while incarcerated, which was intercepted by a correction officer and
forwarded to law enforcement: the defendant’s claim that the trial court
erred in determining that the correction officer followed a certain regula-
tion when he turned over the correspondence to law enforcement was
never distinctly raised at trial and, therefore, was unpreserved and not
reviewable on appeal; moreover, the defendant did not prove that he
had an objectively reasonable expectation of privacy such that his fourth
amendment rights were violated, and, thus, there was no constitutional
violation under the third prong of State v. Golding (213 Conn. 233);
furthermore, the department regulation at issue was not void for
vagueness as applied to the defendant, as the language of the regulation
gave notice to the defendant that he could have his mail reviewed if
doing so was deemed in the interest of security, order or rehabilitation
by prison officials, and a prison official reasonably could have deter-
mined that the letter contained plans for criminal activity, such as wit-
ness tampering.
3. The defendant’s claim that his conviction of home invasion and burglary
violated his constitutional protection against double jeopardy was
unavailing; the defendant failed to show that the two charges arose out
of the same act or transaction, as the evidence allowed the defendant’s
crimes to be separated into parts, each of which constituted a com-
pleted offense.
Argued September 16, 2019—officially released January 14, 2020
Procedural History
Substitute information charging the defendant with
crimes of home invasion, burglary in the first degree
and robbery in the first degree, and with three counts of
the crime of stealing a firearm, brought to the Superior
Court in the judicial district of Waterbury and tried to
jury before Cremins, J.; verdict and judgment of guilty,
from which the defendant appealed to this court.
Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Don E. Therkildsen, Jr., senior assistant state’s
attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, James Jarmon, appeals
from the judgment of conviction of home invasion in
violation of General Statutes § 53a-100aa (a) (1), bur-
glary in the first degree in violation of General Statutes
§ 53a-101 (a) (3), robbery in the first degree in violation
of General Statutes § 53a-134 (a) (4), and three counts
of stealing a firearm in violation of General Statutes
§ 53a-212 (a). On appeal, the defendant claims that
(1) the state presented insufficient evidence to prove
beyond a reasonable doubt the operability of each fire-
arm the defendant stole, (2) the trial court erroneously
admitted into evidence a letter written by the then incar-
cerated defendant that was intercepted by a correction
officer, and (3) the defendant’s conviction of home inva-
sion and burglary in the first degree violated his consti-
tutional protection against double jeopardy. We affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. On April 12, 2015, Nathaniel Garris attended a
birthday party for his nephew. At the party, Garris spoke
on the phone with the defendant, whom Garris knew all
his life and whom, though they were unrelated, Garris
referred to as his ‘‘cousin.’’ It had been about four or
five months since Garris and the defendant had seen
each other last, and the defendant wanted to ‘‘chill’’
with Garris to ‘‘catch up.’’ The two met up that same
day and went to Niko Infanti’s house.1
At Niko’s home, the defendant and Garris began play-
ing video games in Niko’s bedroom. At one point, the
defendant observed a case in Niko’s bedroom and asked
if it contained a guitar, to which Garris responded ‘‘no,
that’s a gun.’’2 At another point, Garris retrieved a knife
out of Niko’s bedside nightstand, which also contained
Niko’s handgun. Thereafter, the defendant participated
in a few phone calls; the defendant left Niko’s bedroom
to pick up each phone call.
While the defendant and Garris were in Niko’s bed-
room, Kade was in the kitchen using her laptop. An
individual unknown to Kade, later identified by the
police as Brett Vaughn, ‘‘peeked his head in the back
door’’ and asked for the defendant. Kade went to Niko’s
bedroom, told the defendant that there was someone
waiting for him at the back door and returned to the
kitchen. Once Kade arrived back in the kitchen, Vaughn,
who had entered the house, grabbed her and put a gun
to the back of her head. Meanwhile, back in Niko’s
bedroom, Garris became upset with the defendant after
hearing Kade’s message because he perceived that the
defendant had invited someone over without asking
him. Garris walked out to the kitchen to see who was
there waiting for the defendant and found Vaughn stand-
ing behind a seated Kade with a gun pressed to her
head. Garris, who only knew Vaughn ‘‘from passing,’’
pleaded with him to point the gun at him rather than
Kade, to which Vaughn responded ‘‘[you’re] beat, don’t
die over something stupid.’’ Vaughn then yelled ‘‘hurry
up.’’ Christina heard the disturbance from her own
bedroom, came out to see its cause and, after observing
the scene, repeatedly told Vaughn to leave. The defen-
dant had remained in Niko’s bedroom after Garris
walked to the kitchen and while this tumultuous scene
unfolded. He then emerged from Niko’s bedroom with
all four of Niko’s firearms in bags. The defendant and
Vaughn proceeded to leave out the back door, with
Vaughn being the first one out. As the defendant was
exiting the back door, Garris jumped on his back and
was able to retrieve one of the bags, which contained
Niko’s shotgun.
The defendant was arrested on May 20, 2015, and
charged in a substitute information on September 29,
2016. On September 30, 2016, a jury returned guilty
verdicts against the defendant for home invasion, bur-
glary in the first degree, robbery in the first degree, and
three counts of stealing a firearm. On March 2, 2017,
the court imposed on the defendant a total effective
sentence of ten years of incarceration, followed by six
years of special parole.3 This appeal followed.
I
The defendant first claims there was insufficient evi-
dence to support his conviction of the three counts of
stealing a firearm because no evidence was admitted
that demonstrated the operability of the stolen fire-
arms. The defendant argues that ‘‘[o]perability, espe-
cially when the guns were never recovered and there
is no evidence the gun was fired during the incident,
has never been proven with such scant evidence.’’ The
state responds that ‘‘it was reasonable to infer that
[the guns] were operable at the time that they were
purchased’’ and that ‘‘[t]he jury could reasonably have
inferred that the firearms remained operable approxi-
mately one year later when they were stolen by the
defendant.’’ We agree with the state.
We first set forth our standard of review. ‘‘In review-
ing a jury verdict that is challenged on the ground of
insufficient evidence, we employ a two part analysis. We
first review the evidence presented at trial, construing
it in the light most favorable to sustaining the facts
expressly found by the trial court or impliedly found
by the jury. We then decide whether, upon the facts
thus established and the inferences reasonably drawn
therefrom, the trial court or the jury could reasonably
have concluded that the cumulative effect of the evi-
dence established the defendant’s guilt beyond a rea-
sonable doubt. . . . The evidence must be construed
in a light most favorable to sustaining the jury’s verdict.
. . . In reaching its verdict, the jury can draw reason-
able and logical inferences from the facts proven and
from other inferences drawn from the evidence pre-
sented. Our review is a fact based inquiry limited to a
determination of whether the jury’s inferences drawn
were so unreasonable as to be unjustifiable.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Bradley, 39 Conn. App. 82, 90–91, 663 A.2d 1100 (1995),
cert. denied, 236 Conn. 901, 670 A.2d 322 (1996).
Section 53a-212 (a) states that ‘‘[a] person is guilty of
stealing a firearm when, with intent to deprive another
person of such other person’s firearm or to appropriate
the firearm to such person or a third party, such person
wrongfully takes, obtains or withholds a firearm, as
defined in subdivision (19) of section 53a-3.’’ A ‘‘[f]ire-
arm’’ is defined 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 added.) General Stat-
utes § 53a-3 (19). ‘‘Operability of the [firearm is] an
essential element of the [crime] charged under General
Statutes [§ 53a-212 (a)] . . . .’’ State v. Carpenter, 19
Conn. App. 48, 59, 562 A.2d 35, cert. denied, 213 Conn.
804, 567 A.2d 834 (1989). ‘‘The operability of a firearm
can be proven either by circumstantial or direct evi-
dence.’’ State v. Bradley, supra, 39 Conn. App. 91.
As in Bradley, the issue before us is ‘‘whether the
jury could have drawn reasonable inferences from the
evidence to enable it to conclude, beyond a reasonable
doubt, that the gun that the defendant possessed was
operable.’’ Id. The state points to the following evidence
in the record that would support a conclusion that the
firearms were operable. Niko lawfully bought his three
stolen firearms from sportsmen retailers between
March 27, 2014, and June 27, 2014.4 Niko kept his guns
confined to his bedroom. The three long guns were in
the open space of his bedroom, but kept inside cases
or bags and fastened with some form of safety lock.
The handgun was kept in Niko’s nightstand ‘‘in a locked
case.’’ With the exception of Garris, who slept in Niko’s
bedroom, Niko ‘‘[v]ery rarely let anybody in that room.’’
If Niko was not so diligent about keeping his firearms
in his bedroom, his mother would have put him ‘‘out
of the house in like point six seconds.’’ As such, the
firearms left Niko’s bedroom only when he took them
to the ‘‘training grounds.’’
The defendant argues that this evidence is inadequate
to prove the operability of the firearms beyond a reason-
able doubt. He contends that his case is distinguishable
from a number of this court’s past decisions in which
operability was at issue. See State v. Edwards, 100
Conn. App. 565, 575–76, 918 A.2d 1008 (testimony of
witnesses describing gun used in robberies, which
matched gun found in defendant’s flight path and ballis-
tics testing of which showed it was same gun fired
in separate shooting deemed sufficient for operability
inference), cert. denied, 282 Conn. 928, 929, 926 A.2d
666, 667 (2007); State v. Miles, 97 Conn. App. 236, 241,
903 A.2d 675 (2006) (operability proven where victim
saw defendant with small silver handgun that matched
gun introduced into evidence, defendant was only per-
son victim saw with gun, and victim identified defen-
dant as shooter in photographic lineup and at trial on
cross-examination); State v. Rogers, 50 Conn. App. 467,
469, 475, 718 A.2d 985 (front seat passenger displaying
gun and fire coming from passenger seat area sufficient
evidence of operability), cert. denied, 247 Conn. 942,
723 A.2d 319 (1998); State v. Hopes, 26 Conn. App. 367,
376–77, 602 A.2d 23 (testimony that defendant pointed
gun at witnesses inside restaurant, within one minute
followed witnesses outside restaurant, then witnesses
heard gunfire and ‘‘felt something pass close by their
heads’’ sufficient to prove operability of defendant’s
gun), cert. denied, 221 Conn. 915, 603 A.2d 405 (1992);
see also State v. Beavers, 99 Conn. App. 183, 190, 912
A.2d 1105 (police test of gun sufficient evidence of
operability), cert. denied, 281 Conn. 925, 918 A.2d 276
(2007); State v. Bradley, supra, 39 Conn. App. 91 (same);
State v. Zayas, 3 Conn. App. 289, 299, 489 A.2d 380
(same), cert. denied, 195 Conn. 803, 491 A.2d 1104
(1985). The defendant’s reliance on these cases to dem-
onstrate what evidence is minimally necessary to prove
operability is unpersuasive. Each of these cases pre-
sents evidence sufficient to prove operability, but a
compilation of these cases do not define a minimum
standard of necessary evidence to establish operability.
‘‘[T]he line between permissible inference and imper-
missible speculation is not always easy to discern. When
we infer, we derive a conclusion from proven facts
because such considerations as experience, or history,
or science have demonstrated that there is a likely cor-
relation 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.’’ (Inter-
nal quotation marks omitted.) State v. Niemeyer, 258
Conn. 510, 518, 782 A.2d 658 (2001).
The evidence presented in this case supports an infer-
ence of operability because, from that evidence, the
jury reasonably could have concluded that the guns
were operable. Niko stored all of his firearms in his
bedroom in cases or bags and with safety locks on. He
restricted access to his bedroom. Niko’s precautions
evince an awareness that his firearms were dangerous.
It is reasonable to infer that operable firearms would
trigger such concern. Although a person might take
similar steps to secure inoperable firearms, that possi-
bility does little to negate the likelihood of reasonable
jurors relying on their common sense understanding of
firearms to infer that Niko’s security measures reflected
that his firearms were operable. See id., 519 (‘‘an infer-
ence need not be compelled by the evidence; rather,
the evidence need only be reasonably susceptible of
such an inference’’ [internal quotation marks omitted]).
The defendant argues that regardless of the guns’
operability, ‘‘it is reasonable to infer that a mother
would not want a very young child or teenagers to have
access to two rifles and a handgun.’’ The defendant
again ignores the most obvious explanation for the posi-
tion of Niko’s mother: a gun is most dangerous if opera-
ble. The defendant also implies, incorrectly, that the
jury’s refusal to draw an inference more favorable to
the defendant makes the inference they did draw an
unreasonable one. That is not so. See id., 518–19
(‘‘[p]roof of a material fact by inference from circum-
stantial evidence need not be so conclusive as to
exclude every other hypothesis’’ [internal quotation
marks omitted]). The fact that Niko’s mother would not
permit his firearms being stored anywhere other than
securely in his bedroom, and that Niko assiduously
followed his mother’s ultimatum, further supports an
inference that these guns were operable.
Additionally, Niko kept his handgun in a nightstand
beside his bed. From this, the jury reasonably could
have inferred that Niko’s storing of his handgun in close
proximity to his bed where, while asleep, he might be
most vulnerable, permits an inference that he possessed
the handgun for security purposes. The jury then could
have further inferred that such a handgun was operable,
or else it would be of little security value. Niko also
kept this handgun in a locked case. As with the long
guns, this permits an inference that Niko took this safety
measure because the handgun was an operable firearm.
Lastly, Niko bought the three stolen firearms from
retailers, with the earliest purchase made on March 27,
2014. The defendant stole the guns on April 12, 2015.
Accordingly, when stolen, Niko’s firearms were in his
possession for no longer than one year and sixteen
days. Kade testified that the only time Niko’s firearms
left his bedroom was to go to the ‘‘training grounds.’’
Thus, the guns were taken to the ‘‘training grounds,’’
which the jury reasonably could have inferred was a
place to fire the guns, and that the guns were therefore
fired at least once during the year and sixteen days5
that Niko possessed them. Therefore, the jury reason-
ably could have inferred that the firearms were operable
upon purchase and, because Niko did take the guns to
a firing range during the limited duration of his owner-
ship, remained operable when they were stolen.
The defendant cites to State v. Perez, 146 Conn. App.
844, 79 A.3d 149 (2013), cert. denied, 311 Conn. 909, 83
A.3d 1163 (2014), for the proposition that ‘‘a firearm
left in storage without the proper care and cleaning
can become inoperable.’’ In Perez, a firearm became
inoperable in the sixteen months between a successful
dry fire6 of the firearm by law enforcement and subse-
quent testing because the gun became ‘‘gummed up by
a residue in the . . . cylinder pin.’’ (Internal quotation
marks omitted.) Id., 847. The gun still was found to be
operable because ‘‘the responding officer dry fired the
gun and observed that its firing mechanism was func-
tional shortly after the defendant possessed it . . . .’’
Id., 850. We fail to see how Perez informs our analysis
in this case. Perez is a factually distinguishable case,
and the evidence used to prove operability in that case
is not required to prove operability in this case.
Our review of the record does not persuade us that
the jury made unreasonable inferences regarding opera-
bility. To the contrary, the cumulative effect of the
evidence in this case, when construed in a light most
favorable to sustaining the jury’s verdict, supports the
jury’s ultimate conclusion that the state has demon-
strated operability beyond a reasonable doubt. See
State v. Bradley, supra, 39 Conn. App. 90.7
II
The defendant next claims that the trial court errone-
ously admitted into evidence a letter the defendant
wrote to his mother while incarcerated, which was
intercepted by a correction officer and forwarded to
law enforcement. The defendant argues that (1) the
‘‘court erred in determining that the correction officer
followed the [department of correction (department)
regulation8] when he turned over the correspondence’’
(footnote added); (2) ‘‘[t]he defendant maintained a rea-
sonable expectation of privacy in his letter written to
[his] mother,’’ making its seizure a violation of the fourth
amendment to the United States constitution; and (3)
the department regulation ‘‘regarding inmate corre-
spondence is void for vagueness as applied to this
case.’’
The following additional facts are relevant to this
issue. At trial, on September 29, 2016, the state offered
into evidence a letter written by the then incarcerated
defendant to his mother, which was intercepted by a
correction officer and forwarded to law enforcement.
After reviewing the contents of the letter, the court was
prepared to admit the letter as an admission by the
defendant. Conn. Code. Evid. § 8-3 (1) (A). Defense
counsel objected to the letter’s admission, stating that
‘‘when someone is incarcerated in a Connecticut facil-
ity, they are stripped of most of their expectation of
privacy, but not all’’ and that ‘‘I think [the department]
has put a limit on themselves that not just anybody can
open a letter at their own discretion.’’ Defense counsel
requested the opportunity to voir dire a department
representative ‘‘to see whether or not this opening of
a letter came at the direction of a unit manager by a
person in writing.’’ The court permitted the voir dire
of Correction Officer Evan Charter. After the voir dire
concluded, defense counsel argued that the department
‘‘did not follow the directive. Just because someone is
in a category of high bond or pretrial doesn’t necessarily
. . . further substantial interest[s] of security, order
or rehabilitation.’’ The court asked defense counsel,
‘‘[w]ould you agree [that the regulation] was followed
in this situation?’’ Defense counsel responded, ‘‘I would
agree [Officer Charter] followed [the regulation].’’ The
court ‘‘allow[ed] the letter to come in,’’ and defense
counsel stated, ‘‘I still stand by my objection . . . .’’
Additional facts will be set forth as necessary.
A
We begin with the defendant’s claim that ‘‘[t]he trial
court erred in determining that [Officer Charter] fol-
lowed the [regulation] when he turned over the corre-
spondence’’ to law enforcement. We conclude that the
defendant never distinctly raised this claim at trial. It
is therefore unpreserved and unreviewable on appeal.
The regulation governs the review of an inmate’s
outgoing general correspondence.9 The regulation
authorizes the ‘‘Unit Administrator’’ to select ‘‘specific
inmate(s)’’ or inmates ‘‘on a random basis’’ to have their
outgoing general mail reviewed if there is ‘‘reason to
believe that such reading is generally necessary to
further the substantial interests of security, order or
rehabilitation.’’ The regulation further directs the ‘‘Unit
Administrator’’ to designate in writing the ‘‘person(s)’’
who will review inmate mail. Under the regulation,
those designated ‘‘person(s)’’ are given the authority
to restrict, confiscate, return to the inmate, retain for
further investigation, refer for disciplinary proceedings
or forward to law enforcement officials any outgoing
general correspondence that ‘‘contain[s] or concern[s]’’
a list of nine prohibited inmate actions. See Regs., Conn.
State Agencies § 18-81-31 (a).
The focus of the defendant’s voir dire of Officer Char-
ter was on the decision to review the defendant’s mail
in the first instance, not on whether the mail could be
provided to law enforcement. Defense counsel’s initial
objection to the court was that the department ‘‘put
a limit on themselves that not just anybody can open
a letter at their own discretion.’’ Defense counsel
requested the voir dire ‘‘to see whether or not this
opening of a letter came at the direction of a unit man-
ager by a person in writing.’’ During voir dire, Officer
Charter testified that he did not make the initial decision
to review the defendant’s general outgoing mail.10 After
voir dire, defense counsel argued that the regulation
was not followed because reviewing the mail of a high
bond or pretrial inmate ‘‘doesn’t necessarily . . . fur-
ther substantial interest[s] of security, order or reha-
bilitation.’’ The voir dire did not explore Officer Char-
ter’s decision to forward the defendant’s letter to law
enforcement after a review of the letter.
Now, on appeal, the defendant claims that ‘‘[t]he trial
court erred in determining that [Officer Charter] fol-
lowed the [regulation] when he turned over the corre-
spondence.’’ This claim, challenging Officer Charter’s
authority and decision to turn the defendant’s letter
over to law enforcement pursuant to the regulation, is
a claim that was not distinctly raised at trial. As such,
it is unpreserved and not reviewable. See Practice Book
§ 60-5; State v. Morquecho, 138 Conn. App. 841, 851, 54
A.3d 609, cert. denied, 307 Conn. 941, 56 A.3d 948 (2012).
In his reply brief, the defendant claimed for the first
time that ‘‘[t]here is no doubt that [the] trial counsel
was objecting on the basis that the correction officer
was not authorized to read the defendant’s outgoing
letter solely on the basis that he was being held on a
high bond.’’ We decline to review this claim because
‘‘arguments cannot be raised for the first time in a reply
brief.’’ (Internal quotation marks omitted.) State v.
Myers, 178 Conn. App. 102, 106, 174 A.3d 197 (2017).
B
The defendant’s second claim with respect to the
letter is that his fourth amendment rights were violated.
The defendant did not distinctly raise this claim at trial11
but seeks review under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 120 A.3d 1188 (2015).12 For the pur-
poses of this decision we assume that the record is
adequate, and we agree that the claim is of a constitu-
tional magnitude. There is, however, no constitutional
violation. See State v. Martin, 77 Conn. App. 778, 800,
825 A.2d 835 (‘‘[t]he defendant has failed to cite any
authority, nor have we found any, for the proposition
that a pretrial detainee has a reasonable expectation
of privacy in his telephone calls and mail after being
informed that his calls and mail would be monitored’’
[emphasis in original]), cert. denied, 266 Conn. 906, 832
A.2d 73 (2003). During the voir dire, Officer Charter
testified that all inmates are notified that their calls and
mail may be monitored upon entry into a facility.13 The
defendant presented no evidence that he lacked such
notice. Accordingly, the defendant did not prove that
he had an objectively reasonable expectation of privacy.
See State v. Houghtaling, 326 Conn. 330, 341, 163 A.3d
563 (2017) (‘‘[t]he burden of proving the existence of
a reasonable expectation of privacy rests [with] the
defendant’’ [internal quotation marks omitted]), cert.
denied, U.S. , 138 S. Ct. 1593, 200 L. Ed. 2d 776
(2018).14 The defendant’s claim fails under Golding’s
third prong.
C
The defendant’s third claim with respect to the letter
is that the regulation is void for vagueness as applied
to this case.15 This claim also was unpreserved but
because the record is adequate and vagueness claims
implicate the due process clause of the federal constitu-
tion, we review it under Golding. State v. Thomas W.,
115 Conn. App. 467, 471–72, 974 A.2d 19 (2009), aff’d,
301 Conn. 724, 22 A.3d 1242 (2011). The defendant,
however, cannot establish a constitutional violation.
The defendant argues that ‘‘[he] had inadequate
notice that his letter would be used against him and he
was the victim of arbitrary and discriminatory enforce-
ment.’’ The state argues that the regulation ‘‘carries no
penal consequences’’ and, even if the regulation does
implicate due process, the defendant had ‘‘fair notice
that his outgoing general correspondence may be sub-
ject to review, and that such correspondence may be
forwarded to law enforcement officials . . . if . . . it
contained a plan for criminal activity . . . .’’ In his reply
brief, the defendant responds that ‘‘[t]he state, without
citing to authority, simply dismisses this claim by con-
tending that since [the regulation is nonpenal] . . .
there is no implication of the due process clause.’’
(Internal quotation marks omitted.)
‘‘[T]he United States Supreme Court has stated that
[t]he degree of vagueness that the Constitution tolerates
. . . depends in part on the nature of the enactment.
. . . [P]erhaps the most important factor affecting the
clarity that the Constitution demands of a law is
whether it threatens to inhibit the exercise of constitu-
tionally protected rights.’’ (Internal quotation marks
omitted.) Thalheim v. Greenwich, 256 Conn. 628, 641,
775 A.2d 947 (2001). ‘‘The constitutional requirement
of definiteness applies more strictly to penal laws than
to statutes that exact civil penalties.’’ State v. Rivera,
30 Conn. App. 224, 229, 619 A.2d 1146, cert. denied, 225
Conn. 913, 623 A.2d 1024 (1993). ‘‘The words ‘penal’
and ‘penalty,’ in their strict and primary sense, denote
a punishment, whether corporal or pecuniary, imposed
and enforced by the State for a crime or offense against
its laws.’’ Plumb v. Griffin, 74 Conn. 132, 134, 50 A. 1
(1901); see also 82 C.J.S., Statutes § 529 (2019) (‘‘[i]n
common use, however, the term ‘penal statutes’ has
been enlarged to include all statutes which define an
offense and prescribe a punishment’’). ‘‘[C]ivil statutes
. . . may survive a vagueness challenge by a lesser
degree of specificity than in criminal statutes . . . .’’
(Internal quotation marks omitted.) Sweetman v. State
Elections Enforcement Commission, 249 Conn. 296,
323, 732 A.2d 144 (1999).
The defendant fails to demonstrate that this regula-
tion is penal and should receive closer scrutiny. See
State v. Rivera, supra, 30 Conn. App. 229. Regardless,
the defendant’s claim fails even under the more exacting
standard of review that applies to penal laws. ‘‘To dem-
onstrate that [a statute] is unconstitutionally vague as
applied to him, the [defendant] . . . must . . . dem-
onstrate beyond a reasonable doubt that [he] had inade-
quate notice of what was prohibited or that [he was] the
victim of arbitrary and discriminatory enforcement.’’
(Internal quotation marks omitted.) State v. Winot, 294
Conn. 753, 759, 988 A.2d 188 (2010). The defendant
cannot carry his burden.
The regulation states in relevant part that ‘‘[a]ll outgo-
ing general correspondence shall be subject to being
read at the direction of the Unit Administrator . . . in
writing . . . for either a specific inmate(s) or on a ran-
dom basis if the Commissioner or Unit Administrator
has reason to believe that such reading is generally
necessary to further the substantial interests of secu-
rity, order or rehabilitation.’’ Regs., Conn. State Agen-
cies § 18-81-31 (a). This language gave notice to the
defendant that he could have his mail reviewed if doing
so was deemed in the interest of security, order or
rehabilitation by prison officials. The regulation was
followed when the defendant, as a high bond and pre-
trial detainee, was identified in writing as an inmate to
have his mail reviewed. See Washington v. Meachum,
238 Conn. 692, 726, 680 A.2d 262 (1996) (‘‘the United
States Supreme Court [has] recognized the expertise
of prison officials and that the judiciary is ‘ill equipped
to deal with the increasingly urgent problems of prison
administration,’ and [has] emphasized that courts
should afford ‘deference to the appropriate prison
authorities’ ’’). The regulation further provides that out-
going mail could be ‘‘forwarded to law enforcement
officials, if such review discloses correspondence or
materials which contain or concern . . . Plans for
criminal activity.’’ Regs., Conn. State Agencies § 18-81-
31 (a) (4). This language provided sufficient notice to
the defendant that his letters could be forwarded to
law enforcement if they contained plans for criminal
activity. In the defendant’s letter to his mother, he wrote
‘‘mom find out how the [victims] feel about the [whole]
situation. [S]ee if they [are] still in CT or [if] they moved
to AZ try to talk to them tell them how sorry I am tell
them if [anything] Britt’s [girl] is willing to give them
[$5000] after we come home. See if they want to take
the stand. I need you to do this now.’’ A prison official
reasonably could have determined that the letter con-
tained plans for criminal activity, such as witness tam-
pering. See General Statutes § 53a-151. The regulation
is not void for vagueness as applied to the defendant.16
III
The defendant’s final claim is that the charges of
home invasion17 and burglary18 are the same offense,
making his conviction of both offenses a violation of
his constitutional protection against double jeopardy.
Thus, the defendant argues that his conviction of bur-
glary in the first degree must be vacated.19 We disagree.
‘‘Double Jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met.’’ (Internal quotation marks
omitted.) State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605
(2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1804, 185
L. Ed. 2d. 811 (2013). ‘‘At step one, it is not uncommon
that we look to the evidence at trial and to the state’s
theory of the case . . . in addition to the information
against the defendant, as amplified by the bill of particu-
lars. . . . If it is determined that the charges arise out
of the same act or transaction, then the court proceeds
to step two, where it must be determined whether the
charged crimes are the same offense. . . . At this sec-
ond step, we [t]raditionally . . . have applied the
Blockburger20 test to determine whether two statutes
criminalize the same offense, thus placing a defendant
prosecuted under both states in double jeopardy:
[W]here the same act or transaction constitutes a viola-
tion of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses
or only one, is whether each provision requires proof
of a fact which the other does not. . . . In applying
the Blockburger test, we look only to the information
and bill of particulars—as opposed to the evidence pre-
sented at trial—to determine what constitutes a lesser
included offense of the offense charged. . . . Because
double jeopardy attaches only if both steps are satisfied
. . . a determination that the offenses did not stem
from the same act or transaction renders analysis under
the second step unnecessary.’’ (Citations omitted; foot-
note added; internal quotation marks omitted) State v.
Porter, 328 Conn. 648, 662, 182 A.3d 625 (2018).
The defendant was charged in a substitute informa-
tion with home invasion in violation of § 53a-100aa (a)
(1)21 and burglary in the first degree in violation of § 53a-
101 (a) (3)22 as both the principal and as an accessory
under General Statutes § 53a-8 (a). The state’s theory
of the case was that the home invasion occurred based
on ‘‘[Vaughn] go[ing] over there and bring[ing] a gun
with him. Then he enters in that house to commit a
crime to help the larceny. He puts a gun to Kade’s
head,’’ and the burglary occurred when the defendant
remained in the house at night with the intent to steal
Niko’s firearms.
Under step one, ‘‘[t]he same transaction . . . may
constitute separate and distinct crimes where it is sus-
ceptible of separation into parts, each of which consti-
tutes a completed offense. . . . [T]he test is not
whether the criminal intent is one and the same and
inspiring the whole transaction, but whether separate
acts have been committed with the requisite criminal
intent and are such as are made punishable by the
[statute]. . . . When determining whether two charges
arose from the same act or transaction, our Supreme
Court has asked whether a jury reasonably could
have found a separate factual basis for each offense
charged.’’ (Citation omitted; emphasis in original; inter-
nal quotation marks omitted.) State v. Bennett, 187
Conn. App. 847, 853, 204 A.3d 49, cert. denied, 331 Conn.
924, 206 A.3d 765 (2019). In Bennett, the defendant
was charged under the same subsections of the statues
criminalizing home invasion and burglary in the first
degree as the defendant in the present case. Id., 848.
This court concluded in Bennett that the two crimes
could be separated into parts. ‘‘[T]he burglary charge
arose from the distinct and separate act of entering the
dwelling at night with the intent to commit a larceny,
while the home invasion charge arose from the separate
act of threatening the use of physical force against
[the victim] after the defendant and [the codefendant]
entered the home and were committing the larceny.’’
(Emphasis in original.) Id., 855; see also State v. Schova-
nec, 326 Conn. 310, 328–29, 163 A.3d 581 (2017).
In the present case, the evidence allows the defen-
dant’s crimes to be separated into parts. While the
defendant and Garris were playing video games in
Niko’s bedroom, the defendant inquired as to what
Niko’s cases contained, and Garris responded that
Niko’s guns were stored in the cases. Later, the defen-
dant took multiple phone calls, leaving Niko’s bedroom
for each one. After these phone calls, Vaughn, who was
unknown to Kade and not well known to Garris, showed
up at the back door of the house. Kade went to Niko’s
bedroom and told the defendant that someone was
there to see him. This upset Garris because the defen-
dant had not first asked Garris about Vaughn’s com-
ing over.
After both Kade and Garris left Niko’s bedroom for
the kitchen, the defendant remained alone in Niko’s
bedroom. Lastly, when Vaughn had a gun pressed to
Kade’s head and Garris was pleading with Vaughn to
point the gun at him, Vaughn yelled ‘‘hurry up,’’ which
the jury reasonably could infer was directed at the
defendant. On the basis of the foregoing, the jury rea-
sonably could have concluded that the defendant for-
mulated the intent to take Niko’s firearms before
Vaughn’s arrival when he was in Niko’s bedroom,
learned of the guns’ existence and participated in
numerous phone calls that he took outside of Garris’
presence. In other words, the defendant had remained
in Niko’s house unlawfully with the intent to commit
a larceny prior to Vaughn’s arrival. The jury also reason-
ably could have determined that the home invasion
occurred when Kade returned back to the kitchen and
Vaughn grabbed her and pressed a handgun to the back
of her head. That act, to which the jury reasonably could
have convicted the defendant as being an accessory,
constituted the separate act of threatening the immedi-
ate use of physical force element for robbery, which is
an element of the offense of home invasion. See General
Statutes § 53a-133.23
Because the defendant failed to show that the two
charges arose out of the same act or transaction, there
is no need to proceed to step two and perform a Block-
burger analysis. See State v. Porter, supra, 328 Conn.
663 n.11. The defendant’s double jeopardy argument
fails.
The judgment is affirmed.
In this opinion PRESCOTT, J., concurred.
1
On April 12, 2015, Garris was residing at Niko’s house and sleeping in
the same bedroom as Niko, whom he described as his ‘‘best friend, like a
brother.’’ Also living at the house then was Niko’s mother, Michelle Infanti;
Niko’s siblings, Christina Infanti, Jesse Infanti, Michael Collins and Kade
Collins; and Christina’s eight year old daughter, all of whom ‘‘treated [Garris]
just like family.’’ Niko, his mother and Jesse were all absent from the house
that evening as they were looking at houses in Arizona. For ease of reference,
Niko, Christina and Kade will be referred to by their first names throughout
this opinion.
2
The record reflects that Niko lawfully had possessed four firearms: a
twelve gauge, Maverick Arms shotgun; a .22 caliber, Henry Repeating Rifle
Company rifle; a seven millimeter, Savage rifle; and a nine millimeter, Heck-
ler & Koch handgun.
3
The defendant received ten years of incarceration followed by six years
of special parole on his home invasion conviction, a concurrent ten years
of incarceration on his burglary in the first degree conviction, another con-
current ten years of incarceration on his robbery in the first degree convic-
tion, and concurrent two year sentences of incarceration on his conviction
of each charge of stealing a firearm.
4
Niko’s Henry Repeating Rifle Company rifle was purchased on March
27, 2014, his Heckler & Koch handgun was purchased on May 12, 2014, and
his Savage rifle was purchased on June 27, 2014.
5
Two of the firearms were owned for slightly less than a year and sixteen
days, but for ease of discussion we use the longer timespan.
6
‘‘The Officer removed the ammunition from the loaded gun and . . .
squeeze[ed] the trigger and activat[ed] the hammer . . . .’’ State v. Perez,
supra, 146 Conn. App. 847.
7
The defendant also argues that ‘‘[t]he state presented no expert evidence
that would have permitted the jury to properly infer from the circumstantial
evidence that the state presented that the missing guns had been operable
at the time they were taken beyond a reasonable doubt.’’ The defendant
cites to no authority, and we are aware of none, that supports the position
that expert evidence is necessary to prove operability of a firearm under
the facts of this case.
8
The regulation at issue is § 18-81-31 of the Regulations of Connecticut
State Agencies. See footnote 8 of this opinion. In his brief, the defendant
interchangeably references the regulation and the department administrative
directive 10.7, § 4 (F) (1) (directive). The directive is, in part, authorized by
the regulation, and the language relevant to the issue of inmate mail review
is substantially similar in both the regulation and directive. Hereinafter, we
will refer only to the regulation.
9
Section 18-81-31 of the Regulations of Connecticut State Agencies pro-
vides in relevant part: ‘‘(a) Review, Inspection and Rejection. All outgoing
general correspondence shall be subject to being read at the direction of
the Unit Administrator, by person(s) designated in writing by such Adminis-
trator, for either a specific inmate(s) or on a random basis if the Commis-
sioner or Unit Administrator has reason to believe that such reading is
generally necessary to further the substantial interests of security, order or
rehabilitation. Outgoing general correspondence may be restricted, confis-
cated, returned to the inmate, retained for further investigation, referred
for disciplinary proceedings or forwarded to law enforcement officials, if
such review discloses correspondence or materials which contain or con-
cern: (1)The transport of contraband in or out of the facility. (2) Plans to
escape. (3) Plans for activities in violation of facility or departmental rules.
(4) Plans for criminal activity. (5) Violations of Sections 18-81-28 through
18-81-51, inclusive, of the Regulations of the Connecticut State Agencies or
unit rules. (6) Information which if communicated would create a clear and
present danger of violence and physical harm to a human being. (7) Letters
or materials written in code. (8) Mail which attempts to forward unauthorized
correspondence for another inmate. (9) Threat to the safety or security of
staff, other inmates or the public. The initial decision to take action provided
for in this Subsection except to read, which shall be at the discretion of
the Unit Administrator, shall be made by the designee of the Unit Administra-
tor. Such designee shall not be the same person who made the initial mail-
room review. . . .’’
10
Section 18-81-31 (a) of the Regulations of Connecticut State Agencies
provides in relevant part that ‘‘[a]ll outgoing general correspondence shall
be subject to being read at the direction of the Unit Administrator, by
person(s) designated in writing by such Administrator . . . .’’ (Emphasis
added.) The following testimony was elicited from Officer Charter on exami-
nation by the prosecutor and defense counsel:
‘‘[The Prosecutor]: And why was [the defendant’s] letter reviewed?
‘‘[Officer Charter]: He was a member of the A-1 High Bond Unit. . . .
‘‘[The Prosecutor]: Was he also in any kind of status?
‘‘[Officer Charter]: Unsentenced pretrial.
‘‘[The Prosecutor]: Does that affect when you review something?
‘‘[Officer Charter]: Generally we do review all outgoing for the pretrial
unit, A1 Unit, the High Bond Unit.’’ . . .
‘‘[Defense Counsel]: So according to the [regulation], it says that all outgo-
ing general correspondence shall be subject to being read at the direction
of the unit manager. Who is the unit manager?
‘‘[Officer Charter]: That would be the warden. . . .
‘‘[Defense Counsel]: And it appears to say the unit manager, in your case
the warden, can designate in writing someone to open the mail, correct?
‘‘[Officer Charter]: Correct.
‘‘[Defense Counsel]: Is that you?
‘‘[Officer Charter]: Yes.
‘‘[Defense Counsel]: Was that done in writing?
‘‘[Officer Charter]: Yes. . . .’’
11
Defense counsel began his objection to the letter’s admission into evi-
dence by stating that ‘‘when someone is incarcerated in a Connecticut
facility, they are stripped of most of their expectation of privacy, but not
all.’’ After defense counsel requested, and the court granted, a voir dire of
Officer Charter, the prosecutor stated: ‘‘[I]t’s now turning into a miniature
suppression hearing which I have no objection to.’’ We disagree with the
defendant, who argues that these statements adequately raised his fourth
amendment claim. Defense counsel never sufficiently put the court on notice
that the purpose of the voir dire was to mount a fourth amendment claim.
See State v. Faison, 112 Conn. App. 373, 380, 962 A.2d 860 (trial counsel’s
‘‘general exhortation[s]’’ were inadequate to preserve claims presented on
appeal), cert. denied, 291 Conn. 903, 967 A.2d 507 (2009).
12
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Footnote omitted; emphasis in origi-
nal.) State v. Golding, supra, 213 Conn. 239–40, as modified by In re Yasiel
R., 317 Conn. 773, 120 A.3d 1188 (2015).
The state argues that the defendant’s failure to file a pretrial motion to
suppress the letter is a waiver of this claim pursuant to Practice Book §§ 41-
2, 41-3 and 41-4. In light of our conclusion that the defendant’s claim does
not rise to the level of a constitutional violation, we do not determine
whether the defendant’s claim is waived.
13
Officer Charter testified as follows:
‘‘[The Prosecutor]: When an inmate goes in a correctional facility, are
they informed their mail is going to be monitored?
‘‘[Officer Charter]: Yes.
‘‘[The Prosecutor]: How’s that done?
‘‘[Officer Charter]: There’s an acknowledgement form they sign.
‘‘[The Prosecutor]: Everybody does that?
‘‘[Officer Charter]: Absolutely. It’s part of the admission package.’’
14
The defendant analogizes his case to United States v. Cohen, 796 F.2d
20, 24 (2d Cir. 1986), cert. denied, 479 U.S. 854, 107 S. Ct. 189, 93 L. Ed. 2d
122 (1986), cert. denied sub nom. 479 U.S. 1055, 107 S. Ct. 932, 93 L. Ed.
2d 982 (1987) to argue that his fourth amendment rights were violated. In
Cohen, an inmate’s fourth amendment rights were found to be violated by
a search of his cell, but the case is distinguishable because that search was
ordered by a prosecutor to obtain information for a superseding indictment.
Id. In the defendant’s case, the review of his mail was authorized by prison
officials for reasons of security, order or rehabilitation. See part II C of this
opinion; cf. United States v. Cohen, supra, 24 (‘‘[i]n this case it is plain that
no institutional need is being served’’).
15
The defendant argues the regulation’s vagueness violates his state and
federal due process rights. The defendant did not, however, provide a sepa-
rate analysis under the Connecticut constitution, so we limit our discussion
to the federal constitution. State v. Ellis, 232 Conn. 691, 692 n.1, 657 A.2d
1099 (1995).
16
The defendant also argued that his state and federal rights to protected
speech, to a familial relationship and to prepare and present a defense were
violated. The defendant’s briefing does not make it clear whether these
claims, particularly the first amendment claim to free speech, are intended
to stand on their own or are encompassed within the broader void for
vagueness argument. If they are intended as independent claims, they are
inadequately briefed and we are not required to review them. See State v.
Monahan, 125 Conn. App. 113, 122, 7 A.3d 404 (2010), cert. denied, 299
Conn. 926, 11 A.3d 152 (2011). If the defendant’s first amendment argument
is part of his vagueness claim, it makes no difference to our conclusion
because that claim fails even under the standard of review most favorable
to the defendant.
17
The defendant was charged with home invasion in violation of General
Statutes § 53a-100aa (a) (1), which provides in relevant part: ‘‘A person is
guilty of home invasion when such person enters or remains unlawfully in
a dwelling, while a person other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime therein, and, in the
course of committing the offense: (1) Acting either alone or with one or
more persons, such person or another participant in the crime commits or
attempts to commit a felony against the person of another person other than
a participant in the crime who is actually present in such dwelling . . . .’’
18
The defendant was charged with burglary in the first degree in violation
of Section 53a-101 (a) (3), which provides in relevant part: ‘‘A person is
guilty of burglary in the first degree when . . . (3) such person enters or
remains unlawfully in a dwelling at night with intent to commit a crime
therein.’’
19
The defendant’s double jeopardy claim was not raised at trial, but the
parties agree that it is reviewable under Golding. See State v. Bumgarner-
Ramos, 187 Conn. App. 725, 744, 203 A.3d 619, cert. denied, 331 Conn. 910,
203 A.3d 570 (2019).
20
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.
306 (1932).
21
Count one of the substitute information states that the defendant com-
mitted home invasion ‘‘in that on or about April 12, 2015, at approximately
9:23 p.m., at or near 78 Eastwood Avenue, Waterbury, Connecticut, [the
defendant], did enter or remain unlawfully in a dwelling, while a person
other than a participant in the crime was actually present in such dwelling,
with intent to commit a crime therein, and in the course of committing the
offense: acting with another person, such person and another participant
in the crime committed a felony (to wit: robbery) against the person of
another person other than a participant in the crime who is actually present
in such dwelling.’’
22
Count two of the substitute information states that the defendant com-
mitted burglary in the first degree ‘‘in that on or about April 12, 2015,
at approximately 9:23 p.m., at or near 78 Eastwood Avenue, Waterbury,
Connecticut, [the defendant], did enter and remain unlawfully in a dwelling
at night with intent to commit a crime therein.’’
23
The defendant’s argument that he ‘‘had not been remaining unlawfully
in [Niko’s home], he had been an invited guest’’ and that ‘‘[t]he gathering
of the guns, the unlawful remaining all occurred at the same time when
Vaughn arrived with a gun’’ is unavailing. There was sufficient evidence for
the jury to reasonably conclude that the defendant was remaining unlawfully
in the house with the intent to commit larceny prior to Vaughn’s arrival,
which allows for the home invasion and burglary in the first degree crimes
to be separated into parts.
The defendant’s argument is unsupported by State v. Holmes, 182 Conn.
App. 124, 127, 189 A.3d 151, cert. denied, 330 Conn. 913, 193 A.3d 1210
(2018). The defendant cited to Holmes’ procedural history, which recited a
trial court decision to vacate the conviction of burglary in the first degree
as a lesser included offense of home invasion. Id. There was no claim made
in Holmes to challenge the propriety of that decision and, as such, this court
neither discussed the factual background for the home invasion and burglary
charges nor discussed whether they could reasonably be separated into
parts. Therefore, Holmes is unhelpful to the defendant’s argument.