State v. Milner ( 2020 )

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STATE OF CONNECTICUT v. CHIFFON MILNER
(AC 40322)
DiPentima, C. J., and Sheldon and Moll, Js.*
Syllabus
Convicted, after a bench trial, of the crime of criminal possession of a firearm
in connection with the shooting death of C, the defendant appealed to
this court. An individual, R, who lived in a residence adjacent to the
area where the shooting occurred, witnessed an individual shoot at C.
Another witness, S, testified that the shooter, who was wearing a white
tank top, pointed and fired a gun. The defendant was charged in connec-
tion with the incident with murder and criminal possession of a firearm.
He elected a jury trial on the charge of murder, and the jury returned
a verdict of not guilty. Thereafter, the court conducted a separate trial
on the charge of criminal possession of a firearm, and the court found
the defendant guilty. Held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to sustain his conviction because the trustworthiness of his
alleged inculpatory statements to a former friend, B, on which the trial
court principally relied for finding him guilty, were not corroborated
by substantial independent evidence, in violation of the corpus delicti
rule; the defendant did not dispute that independent evidence tended
to establish that a shooting occurred, that he was at the scene of the
shooting, and that he was drinking with the victim at that location
before the two engaged in a physical altercation, and the state adduced
substantial independent evidence of the trustworthiness of the defen-
dant’s statements to B, including DNA and forensic evidence linking the
defendant to the scene at the time of the shooting and S’s testimony
linking the defendant to a white tank top worn by the shooter, providing
ample corroboration of the defendant’s statements to B that he then
possessed a firearm.
2. The defendant could not prevail on his claim that, even if the state had
satisfied the requirements of the corpus delicti rule with respect to his
statements to B, B’s testimony and that of the state’s other witnesses
was too unreliable to support his conviction: the state and the defendant
stipulated that he had been convicted of a felony, and evidence was
presented that the defendant possessed a firearm capable of discharging
a shot because two witnesses saw the shooter holding the weapon and
heard the shooter discharge it five times in rapid succession, with one
such discharge firing a bullet that caused C’s death; moreover, the
defendant told B that he and C had a physical altercation because C
wanted the defendant’s gun, and that he shot C with that gun when C,
who had previously knocked the defendant unconscious in the alterca-
tion, began to reapproach the defendant after he had regained conscious-
ness; this admission, combined with other independent evidence, fur-
nished a sufficient evidentiary basis for the court to find beyond a
reasonable doubt that the defendant committed the crime of criminal
possession of a firearm.
Argued January 23, 2019—officially released June 2, 2020
Procedural History
Substitute information charging the defendant with
the crimes of murder and criminal possession of a fire-
arm, brought to the Superior Court in the judicial dis-
trict of Hartford, where the charge of murder was tried
to the jury before Crawford, J.; verdict of not guilty;
subsequently, the charge of criminal possession of a
firearm was tried to the court; finding of guilty; judg-
ment of guilty in accordance with the court’s finding,
from which the defendant appealed to this court.
Affirmed.
Richard E. Condon, senior assistant public defender,
for the appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin D. Krawczyk, senior assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Chiffon Milner, appeals
from the judgment of conviction, following a trial to the
court, of criminal possession of a firearm in violation
of General Statutes § 53a-217 (a) (1). On appeal, the
defendant claims that the evidence was insufficient to
sustain his conviction because (1) the court improperly
relied on his inculpatory statements to a former friend,
Kevin Barco, in the absence of substantial independent
evidence corroborating the trustworthiness of those
statements, in violation of the corpus delicti rule, and
(2) even if the state satisfied the requirements of the
corpus delicti rule with respect to the defendant’s state-
ments to Barco, Barco’s testimony and that of the state’s
other witnesses was too unreliable to support the defen-
dant’s conviction. We affirm the judgment of the trial
court.
The state presented the following evidence. In the
early morning hours of July 12, 2014, a group of people
were drinking alcohol, playing music, and gambling in
the parking lot/courtyard of a U-shaped apartment com-
plex located at 30 Auburn Street in Hartford. A three-
family residence located at 18 Auburn Street was adja-
cent to the parking lot/courtyard and driveway of 30
Auburn Street. Rhonda Burney, who lived on the second
floor of 18 Auburn Street, was awakened at approxi-
mately 4:30 a.m. on July 12, 2014, by the sound of
‘‘[a]rguing.’’ When Burney went to the front porch of
her apartment to investigate, she saw two individuals
arguing. She then saw one of the two individuals (the
shooter), whom she could not later identify or describe,
shoot at the other individual (the victim) with a gun,
four or five times in rapid succession, from where he
was standing by a mailbox in front of 30 Auburn Street.
Immediately thereafter, she heard the victim, who was
later identified as Tyshawn Crawford, yell out that he
had been shot, then saw him fall to the ground where
he had been standing, directly across the street from the
shooter, in front of 17 Auburn Street. Burney promptly
dialed 911 on her cell phone, then went outside to assist
the fallen victim. She never saw a weapon on or near
the victim at any time. Burney later told the police that
she had seen someone running away from the scene of
the shooting but she ‘‘didn’t give any description
because there was a bunch of people that ran.’’
Melanie Solis, who lived on the third floor of the
three-family residence at 18 Auburn Street, also was
awakened in the early morning hours of July 12, 2014,
by the sound of arguing outside the building. When she
looked out of a window in the front of the building,
she saw a man with braided hair, who was wearing a
white tank top, standing by the mailbox in front of 18
Auburn Street and pointing a gun in the air. She then
heard the man ask: ‘‘What [are] you going to do? What
[are] you going to do?’’ After running away from the
front window toward the back of the residence, Solis
heard five gunshots ring out in rapid succession. She
then looked out of her kitchen window in the front of
the building and saw the shooter, who was still wearing
a white tank top, run to and enter a black car, in which
he drove away in the direction of Winchester Street.
At that time, as the victim lay on the ground across
the street, Solis saw several people ‘‘fleeing into their
houses.’’ She then directed her mother to call 911. While
her mother was on the phone with the 911 dispatcher,
Solis informed her mother that the shooter had been
shirtless when he fled the scene.1 She did not talk to
the detectives herself because she ‘‘was scared.’’
Officer Michael Dizaar of the Hartford Police Depart-
ment responded to the scene. He first examined the
victim, who was still lying on the ground in front of 17
Auburn Street and could not speak. Dizaar noticed a
small hole in the victim’s neck and a hole in the lower
back of his shirt. The victim was transported to the
hospital, where he was pronounced dead.
Dizaar then canvassed the neighborhood for informa-
tion about the shooting, but encountered ‘‘some resis-
tance’’ to his investigative efforts. He spoke with Bur-
ney, however, who reported that she had seen a shirtless
man running away from the scene toward Westland
Street. Officers found blood near a dumpster on the
pavement of the driveway of 30 Auburn Street and on
the front yard of 17 Auburn Street. They also found five
.40 caliber shell casings on the driveway of 30 Auburn
Street and a white shirt with bloodstains on it, size XXL,
in the northwest corner of the courtyard/parking lot of
30 Auburn Street.
An autopsy later revealed that the cause of the vic-
tim’s death was a single gunshot wound to the chest
by a bullet that penetrated his right lung before exiting
his body through the middle of his back. No bullet was
recovered from the victim’s body during the autopsy.
Forensic testing of blood samples recovered from
the driveway of 30 Auburn Street and from the large
bloodstain on the front of the white shirt recovered
from the courtyard at that address revealed that both
samples had been left by a person whose DNA profile
was consistent with the defendant’s profile but inconsis-
tent with that of the victim. The expected frequency of
such a DNA profile in the general population was less
than one in seven billion. By contrast, forensic testing
of a different blood sample taken from a separate blood-
stain on the interior collar and right shoulder area of the
same white shirt revealed that it contained a complex
mixture of DNA profiles, potentially including the vic-
tim’s profile, but definitely not including the defen-
dant’s, thereby eliminating the defendant as a possible
contributor to that sample. Furthermore, separate
forensic testing of a mixed sample of DNA removed
postmortem from the fingernails of the victim’s left
hand revealed multiple DNA profiles consistent with
the profiles of both the defendant and the victim, thus
making each of them a possible contributor to that
sample. Finally, forensic testing of a particle removed
from the bloodstained white shirt found in the courtyard
of 30 Auburn Street revealed the presence of antimony
and barium, two of the three essential elements neces-
sary to establish the presence of gunshot residue. Test-
ing of that particle did not reveal the presence of lead,
the third essential element of gunshot residue.
The investigation caused the lead investigator,
Michael Rykowski, a detective with the Hartford Police
Department, to suspect that the defendant was the per-
son who had shot and killed the victim. He subsequently
interviewed the defendant, who denied any involvement
in the shooting but admitted that in the overnight hours
of July 11 and July 12, 2014, he had been smoking
marijuana and drinking alcohol at 30 Auburn Street
when he and the victim had a physical altercation, dur-
ing which the defendant’s white V-neck T-shirt had been
removed. Although the defendant initially told Rykow-
ski that he had left 30 Auburn Street on foot in the early
morning hours of July 12, 2014, he stated later in the
interview that he had left 30 Auburn Street that night
in his uncle’s black Mercedes sports utility vehicle.
Rykowski noticed signs of a recent physical altercation
on the defendant’s person, including stitches on his lip,
scratches on his throat, bandages on his knees, cuts on
the back of his head, and a bandage on his right hand.
Kevin Barco, who was once a friend of the defendant,
testified at trial that while he was incarcerated on unre-
lated charges, he contacted the police to give them
information about the July 12, 2014 shooting. Barco and
his family had received threats after the incident due
to his friendship with the defendant. Barco testified
that he had learned on Facebook that the victim had
been shot. Thereafter, having received several phone
calls reporting that the defendant was responsible for
the shooting, he called the defendant to ask him what
had occurred. When they later met, the defendant admit-
ted to Barco that he had ‘‘fucked up,’’ explaining that,
‘‘[w]hen [the defendant and the victim were] on Auburn
Street, drinking, [the defendant] had a gun. He said [the
victim] wanted his gun. [The defendant] wasn’t trying
to give it up. So, they started arguing . . . because they
was both drunk. [The victim] started to fight him. They
fought. [The defendant] got knocked out. [The victim]
walked off. [The defendant] got up, I guess, tried to go
in his aunt’s house. When he turned around [the victim]
was coming back. [The defendant] said that he wasn’t
going to fight [the victim] again and [the defendant]
shot [the victim].’’
The defendant was arrested in connection with the
incident and charged with murder in violation of Gen-
eral Statutes § 53a-54a and criminal possession of a
firearm in violation of § 53a-217 (a) (1). He pleaded not
guilty to both charges, elected a jury trial on the charge
of murder, but waived his right to a jury trial on the
charge of criminal possession of a firearm and elected
a trial to the court. Following a jury trial on the charge
of murder, the jury found the defendant not guilty.
Thereafter, the court conducted a separate trial on the
charge of criminal possession of a firearm based on the
same evidence that the parties had presented to the
jury on the murder charge,2 and found the defendant
guilty. The court reported its findings as follows: ‘‘Court
exhibit number six, which was the stipulation that the
defendant is a convicted felon, in that he was convicted
of burglary in the second degree on August 2, 2011,
which is a felony. As to the other element, possession of
a firearm, the question is whether or not this defendant
possessed a firearm, the court credited the following
testimony, that . . . Burney heard an argument and
she also heard and saw the flash of four to five shots
fired in rapid succession. She also went outside to the
victim and the evidence shows that the [victim] had
died from a gunshot wound. . . . Solis [testified that]
she also heard the shots and had her mother call 911.
She saw someone fleeing from the scene, fleeing in a
black car, and . . . at that time the mother was giving
the information, and she told the mother the description
of the person fleeing, and that person had no shirt on
and fled in a black car. Although at trial, she did say
that he was wearing a shirt, the court, however, finds
the statement made closer in time to be relayed to the
police officer, police department as to the description
that included that the defendant was not wearing a shirt.
Additionally . . . she identified the person fleeing as
having braids. . . .
‘‘The testing of the evidence on the shirt that the
officer seized indicates that the defendant’s DNA was
on that shirt. Additionally . . . Rykowski indicated
that he had located five shell casings and that the defen-
dant admitted to him that he was there, and that he
had an altercation with the deceased. . . . Barco, from
the information that he saw on Facebook and phone
calls he received, contacted the defendant and met with
him, and the defendant admitted that he shot the
deceased. And so, based on that evidence the court on
the assessment of the credibility of the witnesses, the
court finds . . . the defendant guilty of [the charge of
criminal possession of a firearm].’’ The defendant was
sentenced on the charge of criminal possession of a
firearm to a term of ten years of incarceration. This
appeal followed.
We first set forth the applicable legal principles gov-
erning our review of the defendant’s claim. ‘‘In
reviewing a sufficiency of the evidence claim, we apply
a [two part] test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [trier
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . . In evaluating evidence, the trier
of fact is not required to accept as dispositive those
inferences that are consistent with the defendant’s inno-
cence. . . . The trier may draw whatever inferences
from the evidence or facts established by the evidence
it deems to be reasonable and logical. . . . This does
not require that each subordinate conclusion estab-
lished by or inferred from the evidence, or even from
other inferences, be proved beyond a reasonable doubt
. . . because this court has held that a [trier’s] factual
inferences that support a guilty verdict need only be
reasonable.’’ (Internal quotation marks omitted.) State
v. Morelli, 293 Conn. 147, 151–52, 976 A.2d 678 (2009).
A person is guilty of criminal possession of a firearm
pursuant to § 53a-217 (a) (1) when that person pos-
sesses a firearm and has been convicted of a felony.
A ‘‘ ‘[f]irearm’ ’’ 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 . . . .’’ General Statutes § 53a-
3 (19).
I
The defendant first claims that the evidence was
insufficient to sustain his conviction because the trust-
worthiness of his alleged inculpatory statement to
Barco, on which the court principally relied as the basis
for finding him guilty of the charged offense, was not
corroborated by any evidence, much less by substantial
independent evidence, as required by our state’s corpus
delicti rule. The state responds that the corpus delicti
rule was not violated in this case because it introduced
substantial independent evidence tending to establish
the trustworthiness of the defendant’s inculpatory state-
ment to Barco. We agree with the state.
As a preliminary matter, we address the issue of pres-
ervation. The defendant has argued that his corpus
delicti claim was preserved because he filed a motion
for judgment of acquittal. The state initially countered
that the defendant’s corpus delicti claim was unpre-
served and, therefore, unreviewable because the defen-
dant had failed to raise that claim distinctly before the
trial court. Following oral argument before this court,
we stayed this appeal pending our Supreme Court’s
decisions in State v. Leniart, 333 Conn. 88, 215 A.3d
1104 (2019), and State v. Robert H., 333 Conn. 172,
214 A.3d 343 (2019). In Leniart, our Supreme Court
concluded that unpreserved corpus delicti claims are
reviewable on appeal because the common-law corpus
delicti rule is not merely evidentiary but, rather, is a
hybrid rule that has both an evidentiary component and
a substantive component that implicates the defen-
dant’s due process right not to be convicted in the
absence of sufficient evidence of his guilt. See State v.
Leniart, supra, 98–110. In the companion case of Robert
H., supra, 175, our Supreme Court relied on Leniart in
concluding that ‘‘even unpreserved corpus delicti
claims are reviewable on appeal.’’ Following those deci-
sions, this court lifted the appellate stay in the present
case and ordered the parties to submit supplemental
briefs ‘‘addressing the impact, if any, of State v. Leniart,
[supra, 88], and State v. Robert H., [supra, 172], on this
appeal.’’ The state and the defendant agreed in their
supplemental briefs that, as decided in Leniart and
Robert H., the defendant’s corpus delicti claim is review-
able. We, of course, are bound by the Supreme Court’s
decisions in Leniart and Robert H., and, thus, we agree
with the parties that the defendant’s corpus delicti claim
is properly before us, even though it had not been
briefed or argued before the trial court. We thus turn
to the merits of that claim.
Recent case law has clarified the corpus delicti rule,
also known as the corroboration rule, as follows. ‘‘It is
a [well settled] general rule that a naked extrajudicial
confession of guilt by one accused of crime is not suffi-
cient to sustain a conviction when unsupported by any
corroborative evidence. . . . This corroborating evi-
dence, however, may be circumstantial in nature. . . .
[The state is] require[d] . . . to introduce substantial
independent evidence which would tend to establish
the trustworthiness of the [defendant’s] statement.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) State v. Harris, 215 Conn. 189,
192–94, 575 A.2d 223 (1990). This ‘‘trustworthiness rule
set forth in Harris, also known as the corroboration
rule . . . applies to all types of crimes . . . . [A] con-
fession is . . . sufficient to establish the corpus delicti
of any crime, without independent extrinsic evidence
that a crime was committed, as long as there is sufficient
reason to conclude that the confession is reliable.’’
(Internal quotation marks omitted.) State v. Leniart,
supra, 333 Conn. 113, quoting State v. Hafford, 252
Conn. 274, 317, 746 A.2d 150, cert. denied, 531 U.S. 855,
121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).
In other words, ‘‘[t]he present version of the corpus
delicti rule, which applies to the admission of inculpa-
tory statements involving all types of crimes, requires
that the state present corroborative evidence to estab-
lish the trustworthiness of the statement, but that such
evidence need not be sufficient, independent of the
statements, to establish the corpus delicti.’’ (Internal
quotation marks omitted.) State v. Andino, 173 Conn.
App. 851, 877, 162 A.3d 736 (quoting State v. Hafford,
supra, 252 Conn. 316), cert. denied, 327 Conn. 906, 170
A.3d 3 (2017).
The defendant does not dispute that independent evi-
dence tends to establish that a shooting occurred on
July 12, 2014, near 30 Auburn Street, which was adjacent
to the residences of Burney and Solis. Burney testified
that she saw a person standing near the mailbox at the
entrance to the driveway of 30 Auburn Street shoot at
the victim four or five times, after which the victim,
who was standing across the street from the shooter,
yelled that he had been shot and fell to the ground.
Solis testified that the shooter, who was standing in
front of a mailbox, pointed a gun in the air, then fired
it five times in rapid succession. When Dizaar examined
the victim, he saw a hole in the victim’s neck and a
hole in the back of his shirt. An autopsy later revealed
that the cause of the victim’s death was a gunshot
wound to the chest by a single bullet that penetrated
his right lung and exited his body through the middle
of his back. The police recovered five .40 caliber shell
casings from the scene.
The defendant also does not dispute that independent
evidence tends to establish that he was at the scene of
the shooting on the night in question and was drinking
with the victim at that location before the two engaged
in a physical altercation, which resulted in the defen-
dant sustaining numerous injuries, including a tempo-
rary loss of consciousness. Forensic evidence also sup-
ports an inference that the victim and the defendant
engaged in a physical altercation near 30 Auburn Street
on the night in question. The defendant’s DNA profile
was found in blood recovered from the pavement of
the driveway of 30 Auburn Street near a dumpster, in
blood from a bloodstain on the front of a white shirt
found in the courtyard of 30 Auburn Street, and in
material removed postmortem from the fingernails of
the victim’s left hand. When Rykowski interviewed the
defendant, moreover, he noticed what appeared to be
recent physical injuries to the defendant’s lip, throat,
knees, head, and right hand.
The defendant disputes only the existence of substan-
tial independent evidence tending to corroborate his
identity as the person who possessed the firearm from
which shots were fired at the victim on the night of July
12, 2014.3 He contends that the independent evidence
shows only that an unknown person possessed a fire-
arm from which shots were fired at that location, and
that such evidence was insufficient to demonstrate the
trustworthiness of his inculpatory statement to Barco.
The independent evidence, viewed together with the
previously recounted evidence that the defendant had
engaged in a physical altercation with the victim on
Auburn Street in the early morning hours of July 12,
2014, when the victim was shot, amply corroborates
the defendant’s statements to Barco that he possessed
a firearm at that time, as the state alleged and the trial
court found beyond a reasonable doubt. DNA evidence
linked the white shirt found at the scene to both the
defendant and to the victim. Solis testified that the man
she saw standing by the mailbox, holding a gun, was
wearing a white tank top, and forensic analysis revealed
that the white shirt found at the scene contained parti-
cles consistent with, although not definitively establish-
ing, the presence of gunshot residue. Rykowski testified
that the defendant had informed him that his white V-
neck T-shirt had been removed during his altercation
with the victim. Burney testified that, after the shooting,
she saw a shirtless man running away from the scene.
The victim, moreover, was wearing a shirt when Dizaar
responded to the scene, thereby suggesting that the
bloodstained white shirt did not belong to him. Further-
more, the injuries sustained by the defendant during
his altercation with the victim support the inference
that he had a motive to shoot the victim. See State v.
Farnum, 275 Conn. 26, 34, 878 A.2d 1095 (2005) (evi-
dence of motive can be used to identify defendant as
perpetrator).
The defendant, however, contends that the court’s
reliance on certain portions of the state’s evidence was
misplaced because such evidence did not support an
inference that he possessed a firearm on the night the
victim was shot. We are not persuaded by these argu-
ments, which merely offer differing interpretations of
the evidence than those advanced by the state and cred-
ited by the court. In addressing these arguments, we
are mindful that, although the corpus delicti rule
requires the state to present evidence tending to corrob-
orate the trustworthiness of the defendant’s inculpatory
statements, that evidence ‘‘need not be sufficient, inde-
pendent of the statements, to establish the corpus
delicti.’’ (Internal quotation marks omitted.) State v.
Hafford, supra, 252 Conn. 316; see also State v. Andino,
supra, 173 Conn. App. 877. ‘‘The purpose of the corpus
delicti rule is not to erase any doubt as to the accuracy
of the accused’s inculpatory statement, but to assure
that such a statement is trustworthy because of the
evidence that the criminal activity described therein
actually has occurred. . . . [I]t is sufficient if the cor-
roboration merely fortifies the truth of the confession
without independently establishing the crime charged
. . . .’’ Wright v. Commissioner of Correction, 143
Conn. App. 274, 301–302, 68 A.3d 1184, cert. denied,
310 Conn. 903, 75 A.3d 30 (2013).
The defendant first contends that the court improp-
erly relied on Solis’ prior inconsistent statement that
the person she saw running to and entering a black car
was shirtless. He notes that Solis, the only witness to
provide a description of the shooter, described him as
wearing a white tank top and testified that he was still
wearing the white tank top when he entered the black
car and fled from the scene. The defendant argues that
this testimony from Solis necessarily excluded him as
the shooter, because he admitted to Rykowski that his
white V-neck T-shirt was removed during his earlier
altercation with the victim and there was no evidence
that the defendant was wearing a white tank top while
at 30 Auburn Street in the early morning hours of July
12, 2014. The court’s decision, however, does not sup-
port the defendant’s argument that it improperly relied
on Solis’ prior inconsistent statement for substantive
purposes. Although the court mentioned Solis’ prior
inconsistent statement, it did not state that it relied on
that statement for substantive purposes. ‘‘In the
absence of any evidence to the contrary, [j]udges are
presumed to know the law . . . and to apply it cor-
rectly.’’ (Internal quotation marks omitted.) State v.
Reynolds, 264 Conn. 1, 29 n.21, 836 A.2d 224 (2003),
cert. denied, 541 U.S. 908, 1245 S. Ct. 1614, 158 L. Ed.
2d 254 (2004). Additionally, we determine that the trier
of fact reasonably could have determined that Solis’
testimony that the shooter fled following the shooting
while wearing a white shirt was impeached by her prior
inconsistent statement that the shooter fled while
shirtless.
The defendant also argues that the evidence concern-
ing the white shirt found at the scene shows that it
more likely had been worn by the victim than by the
defendant because the victim’s DNA was found on the
interior collar of the shirt. He also contends that
because the white shirt in qestion was a size XXL, it
was more likely worn by the victim, who was six feet,
one inch tall and weighed 216 pounds, than by the
defendant, who weighed only 165 pounds. The defen-
dant further claims that the bloodstains on the front of
the white shirt are consistent with the defendant having
bled on the victim’s shirt during the altercation.
The white shirt recovered from the scene contained
both the defendant’s and the victim’s DNA, which was
consistent with there having been a physical altercation
between them. The fact that the white shirt was a size
XXL, or that the blood swabbed from the interior collar
of the shirt contained a complex DNA mixture that
included the victim but not the defendant as a possible
contributor, does not render the defendant’s statements
to Barco untrustworthy. When Heather Degnan, a foren-
sic scientist, was asked by the state on direct examina-
tion whether the presence of the victim’s DNA on the
inside collar of the white shirt meant that the victim
had touched or had been wearing the shirt, Degnan
responded as follows: ‘‘I can’t say. When we receive a
sample we don’t know how someone’s DNA could’ve
gotten onto an item. And in this case it was a mixture.
. . . I can’t tell you how it got on that item.’’ When
asked if the defendant could have been eliminated as
a contributor to the blood swabbed from the inside
collar of the shirt because there was not enough DNA
to detect it, Degnan responded in the affirmative.
Although the defendant points to an alternative inter-
pretation of the independent evidence, we do not exam-
ine such evidence to see if it can be viewed in a light
supporting innocence but, rather, to determine if it forti-
fies the truth of the defendant’s statements sufficiently
to establish their trustworthiness. See, e.g., Wright v.
Commissioner of Correction, supra, 143 Conn. App.
301–302. When viewed in such a light, the independent
evidence indicates that the shooter, not the victim, was
wearing the white shirt that was found at the scene,
and that the defendant was the shooter. Prior to the
shooting, the shooter had been seen wearing a white
shirt and waving a gun in the air. The white shirt found
at the scene contained both the defendant’s and the
victim’s DNA, as well as elements consistent with gun-
shot residue. It is not reasonable to infer that the white
shirt must have been worn by the victim because the
responding officer found the injured victim to be wear-
ing a shirt. Furthermore, the defendant admitted to
Rykowski that he had been wearing a white shirt on
the night in question but stated that the shirt had been
removed during his altercation with the victim. The
independent evidence thus corroborates the defen-
dant’s statement to Barco that he was the shooter. With
regard to this argument, as with the defendant’s other
arguments concerning interpretations of the indepen-
dent evidence that might have been made in his favor,
we note that ‘‘[t]he corpus delicti does not have to be
established beyond a reasonable doubt, or even by a
preponderance of the evidence.’’ State v. Kari, 26 Conn.
App. 286, 290, 600 A.2d 1374 (1991), appeal dismissed,
222 Conn. 539, 608 A.2d 92 (1992).
The defendant further argues that Burney’s testimony
demonstrated only that an unknown individual fired
four to five gunshots. He contends that Solis’ testimony
specifying that the shooter fled the scene in ‘‘a black
car’’ excludes him as the shooter because he described
the vehicle he used on the night in question as a black
Mercedes sports utility vehicle. The defendant also
notes that the court relied on Solis’ testimony that the
person fleeing had braids, although the state had intro-
duced no evidence regarding the defendant’s hairstyle
during the early morning hours of July 12, 2014. We are
not persuaded that Solis’ more general description of
the vehicle used by the shooter to flee the scene as a
‘‘black car’’ is inconsistent with the defendant’s more
specific description of the getaway vehicle as a black
Mercedes sports utility vehicle. Rather, the evidence
that the shooter fled the scene in a black vehicle and
the evidence that the defendant was driving a black
vehicle on the night in question tend to support, circum-
stantially, an inference that the defendant was the
shooter. Furthermore, the state was not required to
offer evidence as to the defendant’s hairstyle on the
night in question in order to prove the trustworthiness
of his statements to Barco, as there was other indepen-
dent evidence that substantially corroborated the defen-
dant’s inculpatory statements.
The defendant also argues that, when viewed in light
of State v. Andino, supra, 173 Conn. App. 851, the evi-
dence adduced at trial was not corroborative of his
alleged inculpatory statements to Barco that he had
shot the victim. In Andino, the defendant, who was
recognized and identified by two bystanders, and the
victim were arguing in the parking lot of an apartment
complex. Id., 854. The argument, which was overheard
by residents, was related to the victim’s sale of illegal
drugs in the neighborhood. Id. The defendant threat-
ened to shoot the victim and, ultimately, did shoot him
before fleeing the scene. Id. Multiple witnesses over-
heard gunshots. Id. The victim, who sustained injuries
that were not life threatening, was not cooperative with
the investigating police officers and did not testify at
trial. Id., n.2. The defendant waived his Miranda4 rights
and told a police detective that he had shot the victim
because the victim had been selling drugs in an area
that he and others controlled. Id., 855. We concluded
that the trial court, in denying the defendant’s motion
for acquittal, properly determined that the state had
sufficiently corroborated the defendant’s inculpatory
statement to the police, and properly concluded that
the state had met its burden of proof as to the charge
of criminal possession of a firearm in violation of § 53a-
217 (a) (1). Id., 876–77. We determined that ‘‘the state
proved that the defendant’s statement was trustworthy
by means of evidence that demonstrated that the defen-
dant was at the scene of the crime, that he was involved
in an altercation with the victim, that he threatened to
shoot the victim, that a shooting occurred, and that the
victim sustained a gunshot injury.’’ Id., 877.
The defendant argues that in the present case, unlike
in Andino, there was no independent evidence identi-
fying him as the shooter, that he was at the scene at
the time of the shooting, or that he threatened to shoot
the victim. Although the evidence in Andino directly
identified the defendant as the shooter; State v. Andino,
supra, 173 Conn. App. 854; corroborative evidence that
is circumstantial is not necessarily of lesser significance
or probative value under the corpus delicti rule than
direct evidence. See, e.g., State v. Harris, supra, 215
Conn. 194–95. In the present case, circumstantial evi-
dence, in the form of DNA and forensic evidence, linked
the defendant to the scene at the time of the shooting.
Solis’ testimony linked the defendant to the white tank
top that was worn by the shooter. A reasonable infer-
ence can be drawn that the white shirt found at the
scene was worn by the shooter, given that it contained
particles consistent with gunshot residue, and that Solis
testified that the man she saw holding a gun by the
mailbox was wearing a white tank top.
We conclude that the state adduced substantial inde-
pendent evidence of the trustworthiness of the defen-
dant’s statements to Barco that he possessed a firearm.
It thus was reasonable for the trier of fact to consider
and rely on the defendant’s statements in determining
if the state had proved beyond a reasonable doubt that
the defendant was guilty of criminal possession of a
firearm. Accordingly, we reject the first aspect of the
defendant’s claim of evidentiary insufficiency.
II
The defendant further claims that, even if the trust-
worthiness of his statement to Barco was sufficiently
corroborated to satisfy the corpus delicti rule, the
state’s evidence against him, including Barco’s state-
ment, was too unreliable to sustain his conviction for
criminal possession of a firearm. We disagree.
To convict the defendant of criminal possession of
a firearm, the state was required to prove beyond a
reasonable doubt that the defendant was a convicted
felon and that he possessed an operable firearm that
was then capable of discharging a shot. See General
Statutes § 53a-217 (a) (1). The state and the defendant
stipulated that the defendant had been convicted of
a felony. Evidence was presented, moreover, that the
defendant possessed a firearm capable of discharging
a shot, because two witnesses saw the shooter holding
the weapon and heard the shooter discharge it five times
in rapid succession, with one such discharge firing a
bullet that caused the victim’s death. Furthermore, the
defendant told Barco that he and the victim had argued
and physically fought with one another because the
victim wanted the defendant’s gun, and that he had shot
the victim with that very gun when the victim, who had
knocked the defendant unconscious in the fight, began
to approach him again after he had regained conscious-
ness. This admission, when combined with the indepen-
dent evidence described in detail in part I of this opinion
and the stipulation that the defendant was a convicted
felon, furnished a sufficient evidentiary basis for the
court to find beyond a reasonable doubt that the defen-
dant committed the crime of criminal possession of
a firearm.
The defendant further argues that the evidence was
insufficient to support his conviction because Barco,
who obtained both his freedom and monetary gain in
exchange for his testimony, ‘‘was a profoundly unrelia-
ble witness.’’ The court, however, credited the defen-
dant’s confession to Barco, and it is not our role on
appeal to question determinations of credibility. ‘‘Ques-
tions of whether to believe or to disbelieve a competent
witness are beyond our review. As a reviewing court,
we may not retry the case or pass on the credibility of
witnesses. . . . We must defer to the trier of fact’s
assessment of the credibility of the witnesses that is
made on the basis of its firsthand observation of their
conduct, demeanor and attitude.’’ (Internal quotation
marks omitted.) State v. Osoria, 86 Conn. App. 507,
514–15, 861 A.2d 1207 (2004), cert. denied, 273 Conn.
910, 870 A.2d 1082 (2005).
The defendant also argues that Solis was the only
witness to describe the shooter but that her description
excluded the defendant as the shooter. Although Solis
described the shooter as having fled the scene wearing
a shirt, her prior inconsistent statement was admitted
as impeachment evidence. The defendant admitted to
Rykowski that he was wearing a white V-neck T-shirt
that was removed during his physical altercation with
the victim. Although Solis’ description of the shooter
and the defendant’s statement to Rykowski conflict,
‘‘[i]t is well settled . . . that [e]vidence is not insuffi-
cient . . . because it is conflicting or inconsistent.
. . . Rather, the [finder of fact] [weighs] the conflicting
evidence and . . . can . . . decide what—all, none, or
some—of a witness’ testimony to accept or reject.’’
(Citation omitted; internal quotation marks omitted.)
State v. Ocasio, 140 Conn. App. 113, 119 n.7, 58 A.3d
339, cert. denied, 308 Conn. 909, 61 A.3d 531 (2013).
Accordingly, the defendant cannot prevail on this
aspect of his insufficiency claim.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The court instructed the jury to consider this inconsistent statement
only as it related to Solis’ credibility.
2
The state requested that the court rely on the same evidence when
considering the charge of criminal possession of a firearm as it had presented
to the jury on the charge of murder. The defendant had no objection to the
state’s request.
3
Generally, identity is not part of the corpus delicti of a crime. See, e.g.,
State v. Berkowitz, 24 Conn. Supp. 112, 118–19, 186 A.2d 816 (App. Div.),
cert. denied, 150 Conn. 712, 204 A.2d 933 (1962). The defendant argues that
identity is part of the corpus delicti of the status offense of criminal posses-
sion of a firearm because that offense requires proof that the person who
possessed the firearm is a convicted felon. The state agrees with the defen-
dant that corroborative evidence must implicate the defendant in order to
show that a crime has been committed. We agree with both parties that the
corpus delicti of § 53a-217 (a) (1) cannot be established without identifying
the person who committed the offense as a convicted felon. See, e.g., Smith
v. United States, 348 U.S. 147, 153–54, 75 S. Ct. 194, 99 L. Ed. 192 (1954)
(with crime such as tax evasion that lacks tangible injury, ‘‘it cannot be
shown that the crime has been committed without identifying the accused’’);
United States v. Brown, 617 F.3d 857, 862 (6th Cir. 2010) (‘‘when an accused
confesses to a crime for which there is no tangible injury and it cannot be
shown that [a] crime has been committed without identifying the accused
. . . the corroborative evidence must implicate the accused’’ (citation omit-
ted; internal quotation marks omitted)).
4
See Miranda v. Arizona, 384 U.S. 436, 478–79, 88 S. Ct 1602, 16 L. Ed.
2d 694 (1966).