State v. Hazard ( 2020 )

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STATE OF CONNECTICUT v. DENNIS G. HAZARD
(AC 43384)
DiPentima, C. J., and Moll and Harper, Js.*
Syllabus
Convicted of the crime of robbery in the first degree, the defendant appealed,
claiming, inter alia, that the evidence was insufficient to establish his
identity as the perpetrator and that he proved his affirmative defense
of inoperability of the weapon used during the robbery. The perpetrator
had pointed a gun at the employee on duty at a storage facility, took
cash from her and then fled. Police officers searching the nearby area
encountered a vehicle that came toward them but then reversed direction
and left the area before crashing in a yard. The defendant fled from the
crash scene before the police arrived and found cash, a gun and other
items in the vehicle, which had been lent to the defendant by his girlfriend
hours before the robbery. The storage facility employee described to
the police what the defendant was wearing but was unable to identify
him when the police brought her to a nearby store where he was arrested
shortly after the robbery for a one-on-one identification. Held:
1. There was sufficient evidence from which the jury reasonably could have
found that the defendant was the person who robbed the storage facility;
the defendant owned and wore clothing and items similar to that worn
by the perpetrator, some of which the police found in bushes near the
crime scene and which contained the defendant’s DNA, video surveil-
lance showed an individual driving to a bush in a vehicle matching that
which was owned by the defendant’s girlfriend, exiting the vehicle and
retreating behind the bush before returning to the vehicle wearing cloth-
ing that matched that of the defendant at the time of his arrest, and the
police found in the vehicle, which belonged to the defendant’s girlfriend,
a gun and money that approximated the amount stolen from the stor-
age facility.
2. The defendant could not prevail on his claim that his conviction of first
degree robbery should be reversed because he proved the affirmative
defense that the gun was inoperable at the time of the robbery; there
was no evidence provided during the trial that addressed the operability
of the gun at the time of the robbery, contrary to the defendant’s claim
that it was reasonable to infer that the gun was in the same condition
at the time of the robbery as it was when the police tested it six months
later and found it unable to discharge, the police officer who tested the
gun was unable to testify about its operability prior to its recovery by
the police or to state whether dirt found in the gun was the same type
of dirt that was found on the defendant’s clothes at the time of his arrest
or the type of dirt that surrounded the items found in the bushes, the
jurors were free to infer that the gun was not in the same condition at
the time of testing as it was during the robbery, and, accordingly, the
jury reasonably could have found that the defendant failed to prove his
affirmative defense of inoperability.
3. The trial court did not abuse its discretion when it denied the defendant’s
motion for a mistrial, which was based on his claim that a police officer’s
testimony constituted improper lay opinion under the applicable provi-
sion of the Connecticut Code of Evidence (§ 7-1) and an improper opin-
ion on the ultimate issue of identity in violation of the applicable provi-
sion of the Connecticut Code of Evidence (§ 7-3):
a. The police officer’s testimony that the defendant’s clothing appeared
to be the same as that worn by the perpetrator in the surveillance
footage did not constitute an improper lay opinion, as nonexpert opinion
testimony about the appearance of persons or things was admissible in
the discretion of the court.
b. The police officer did not give an opinion on the ultimate issue of
identity when she testified that the defendant was wearing pants similar
to those of the perpetrator in the surveillance video and that the defen-
dant was the individual seen at the storage facility in that surveillance
video; the trial court ordered the identification testimony stricken from
the record and instructed the jurors twice not to consider it in their
deliberations, the defendant did not demonstrate that the stricken testi-
mony was so prejudicial that the jury could not reasonably be presumed
to have disregarded it, and, even if the identification testimony was
improper, this court was not persuaded that it was harmful, as the
jury was presented with significant other circumstantial evidence that
connected the defendant to the robbery and provided a reasonable basis
on which to conclude that he was the individual in the surveillance
footage.
4. The defendant could not prevail on his claim that the trial court erred in
failing to give the jury his requested instruction on identity, as the
case did not involve issues of misidentification or lack of clarity and
inconsistencies in identification, the jury instructions that were given
were not incorrect, insufficient or misleading to the jury, and the defen-
dant’s reliance on the requirement that juries be given specific instruc-
tions with regard to eyewitness identifications was unavailing, as the sole
potential eyewitness to the robbery was unable to identify the defendant.
Argued May 18—officially released October 27, 2020
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crimes of robbery in the
first degree and robbery in the second degree, and, in
the second part, with being a persistent dangerous fel-
ony offender, brought to the Superior Court in the judi-
cial district of Ansonia-Milford, where the first part of
the information was tried to the jury before Brown, J.;
thereafter, the court denied the defendant’s motion for
a mistrial; verdict of guilty; subsequently, the defendant
was presented to the court on a plea of guilty to the
second part of the information; thereafter, the court
denied the defendant’s motions for a judgment of acquit-
tal and for a new trial, vacated the verdict of guilty of
robbery in the second degree, and rendered judgment
in accordance with the verdict and the plea, and the
defendant appealed. Affirmed.
James B. Streeto, senior assistant public defender,
with whom was Susan Brown, public defender, for the
appellant (defendant).
Jonathan M. Sousa, deputy assistant state’s attorney,
with whom, on the brief, were Margaret E. Kelley,
state’s attorney, and Cornelius P. Kelly, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Dennis G. Hazard,
appeals from the judgment of conviction, rendered after
a jury trial, of robbery in the first degree in violation
of General Statutes § 53a-134 (a) (4).1 On appeal, the
defendant claims that (1) there was insufficient evi-
dence to establish his identity as the person who com-
mitted the robbery, (2) he established the affirmative
defense of inoperability of a gun that was found in the
car he had been driving, (3) the trial court erred in
denying his motion for a mistrial, and (4) the trial court
erred in failing to give the jury his requested instruction
on identification. We disagree with the defendant and,
accordingly, affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. On May 5, 2016, at or about 12:06 p.m., a robbery
occurred at the Public Storage (storage facility) on Bull
Hill Lane in West Haven. Renae Luginbuhl was the sole
storage facility employee on duty at that time. The per-
petrator was described as an African-American man
wearing a dark hooded sweatshirt with a portion of a
white undershirt hanging out, a baseball cap with a
yellow brim and a light colored emblem, dark pants,
and dark shoes with white soles. Upon entering the
storage facility, the man mumbled something that Lugi-
nbuhl did not understand. Then the man pointed a gun at
Luginbuhl and stated, ‘‘give me all your fucking money.’’
Luginbuhl gave the man all of the money in the register
and, additionally, the $50 and $100 bills she stored
underneath the register. After receiving the money, the
man warned Luginbuhl not to call anyone and then fled.
As soon as the man left the storage facility, Luginbuhl
reported the robbery to the police. She described to
the police what the man was wearing and informed
them that the man had run across Bull Hill Lane. Lugin-
buhl, however, was unable to describe the man’s
facial features.
Detectives William Conlan and Craig Casman of the
West Haven Police Department were among the first
police officers to respond to the scene. They arrived at
or about 12:24 p.m., in an unmarked vehicle, and
searched the immediate area surrounding the storage
facility, including a nearby dirt access road behind the
Orange Landing Condominiums complex (complex).
Once behind the complex, Conlan and Casman encoun-
tered a white or tan Chevy Malibu (vehicle) with a
partially open passenger side door driving toward them
from the opposite direction. At or about 12:25 p.m., the
driver of the vehicle reversed direction and exited the
access road, only to head north on Bull Hill Lane. Suspi-
cious of the driver’s actions, Conlan directed other
police officers to stop the vehicle. Officer Minh Pham
spotted the vehicle and began pursuit. Pham observed
that the driver of the vehicle was a black man with a
distinctive haircut. Pham also observed the man driving
erratically throughout Bull Hill Lane, Knight Lane, and
then Valley Brook Road, where the vehicle hit stop
signs, mailboxes, a utility pole, and ultimately crashed
in a backyard on Valley Brook Road. By the time Pham
arrived at the scene of the crash, the driver had exited
the vehicle and escaped on foot.
Contemporaneous with Pham’s pursuit of the vehicle,
Detectives Sean Faughnan and Tammy Murray, along
with Officer Justin Standish and his tracking dog, Cody,
arrived at the storage facility to investigate. Standish
directed Cody to the front door of the storage facility,
where Cody picked up the scent of the perpetrator
and, thereafter, led Standish across Bull Hill Lane and
toward the complex. Once Standish and Cody reached
the area of the complex, Cody lost the scent of the
perpetrator. The police, however, found a black
sweatshirt and baseball cap, similar to the one worn
by the perpetrator, hidden in a bush by the complex.
Thereafter, Faughnan, Murray, and Standish decided to
continue their search at the crash site on Valley Brook
Road, approximately two minutes away from the com-
plex. They searched the vehicle and found approxi-
mately $479 scattered loosely over the floor of the pas-
senger seat, a black revolver style pellet gun, two cell
phones, and a pair of white sneakers.
While at the scene of the crash, Standish prepared
Cody to continue tracking by using the scent obtained
from the front seat of the vehicle. Cody began leading
the officers on a scent trail from the crash site to a
nearby parking lot where several construction workers
reported seeing a black male running. From there, Cody
led the officers across Carlson Road, up a short access
road, and then toward a Dollar Tree store (store) on
Boston Post Road in Orange.
A black male, later identified as the defendant,
entered the store at or about 12:33 p.m. and was
observed not wearing shoes. The defendant asked Sta-
cey Sorrells, a store employee, if shoes were sold in
the store, and she directed him to the area where he
could purchase flip-flops. The defendant picked out a
pair of flip-flops and, while checking out with a cashier,
kept looking out the window and tapping his fingers.
Upon completing his transaction, the defendant went to
leave; however, after observing several police officers
approaching the store at or about 12:36 p.m., he turned
around and walked further into the store. Once Cody
had entered the store, at or about 12:37 p.m., he led
Standish past the other officers, employees, and cus-
tomers, and alerted Standish to the defendant. The
defendant was arrested and escorted from the store at
or about 12:44 p.m.
At the time of his arrest, the defendant was wearing
a blue and white shirt, jeans, and socks covered in
dirt or mulch. Shortly after his arrest, Luginbuhl was
brought to the store by the police in order to make an
identification; however, she was unable to identify the
defendant as the person who robbed the storage facility.
Following his arrest, the defendant was charged with
robbery in the first degree and robbery in the second
degree. The trial began on November 28, 2017, and
concluded December 5, 2017. On November 30, 2017,
the state called Detective Murray, who testified, among
other things, that the perpetrator was wearing the same
clothing as the defendant at the time of his arrest and
that the defendant was the perpetrator on the surveil-
lance footage at the storage facility. Immediately follow-
ing Murray’s statement, the defendant orally moved for
a mistrial, arguing that Murray’s testimony was irrepara-
bly prejudicial. That motion was denied. On December
4, 2017, the defendant filed a written motion for a mis-
trial, challenging the court’s rulings regarding allegedly
prejudicial statements made by Murray. That motion
was denied. Following the jury trial, on December 6,
2017, the defendant was found guilty of robbery in the
first degree and robbery in the second degree.
Two months later, on February 8, 2018, the defendant
filed a motion for a judgment of acquittal, arguing that
the evidence adduced at trial did not reasonably permit
a finding of guilty beyond a reasonable doubt. He also
filed, that same day, a motion for a new trial. Specifi-
cally, he argued that (1) the court erred when it allowed
testimony by Murray that the pants the perpetrator had
worn and the pants the defendant had worn at the
time of his arrest were the same pants, (2) Murray had
testified erroneously about an essential element of the
crime charged, (3) the court improperly denied the
defendant’s request for a mistrial on the basis of that
issue, and (4) the court refused to instruct the jury on
the issue of making an identification based on clothing.
The court denied both of the defendant’s motions.
On February 16, 2018, the court sentenced the defen-
dant to a total effective term of twenty-eight years of
incarceration, execution suspended after fifteen years,
followed by five years of probation. On March 21, 2018,
the defendant filed another motion for a judgment of
acquittal and a new trial, arguing that the verdict of
guilty of both robbery in the first degree and robbery
in the second degree was legally inconsistent. More
specifically, he argued that the difference between first
and second degree robbery was the issue of the opera-
bility of the firearm and that a firearm cannot simultane-
ously be operable and inoperable. The defendant’s
motion was denied.2 This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that the evidence of iden-
tity was insufficient to sustain his conviction, and that
the trial court erred in denying his motion for a judg-
ment of acquittal. The state counters that the cumula-
tive impact of all the evidence and the inferences the
jury reasonably could have drawn therefrom support
the jury’s finding that the defendant was the perpetra-
tor. We agree with the state.
We begin our analysis by setting forth the well settled
standard of review applicable to a sufficiency of the
evidence claim, wherein 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 reason-
ably drawn therefrom the [jury] reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt . . . .
This court cannot substitute its own judgment for that
of the jury if there is sufficient evidence to support the
jury’s verdict. . . .
‘‘[T]he jury must find every element proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense, [but] each of the basic and
inferred facts underlying those conclusions need not
be proved beyond a reasonable doubt. . . . If it is rea-
sonable and logical for the jury to conclude that a basic
fact or an inferred fact is true, the jury is permitted to
consider the fact proven and may consider it in combi-
nation with other proven facts in determining whether
the cumulative effect of all the evidence proves the
defendant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact . . . but the cumulative impact of
a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . . In
evaluating evidence, the [jury] is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts estab-
lished by the evidence [that] it deems to be reasonable
and logical. . . .
‘‘[T]here is a fine line between the making of reason-
able inferences and engaging in speculation—the jury
is allowed only to do the former. . . . However, [t]he
line between permissible inference and impermissible
speculation is not always easy to discern. When we
infer, we derive a conclusion from proven facts because
such considerations as experience, or history, or sci-
ence have demonstrated that there is a likely correlation
between those facts and the conclusion. If that correla-
tion is sufficiently compelling, the inference is reason-
able. 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 conclu-
sion, the inference is less reasonable. At some point,
the link between the facts and the conclusion becomes
so tenuous that we call it speculation. When that point
is reached is, frankly, a matter of judgment. . . .
‘‘[P]roof of a material fact by inference from circum-
stantial evidence need not be so conclusive as to
exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact. . . . Thus, in determining whether the evidence
supports a particular inference, we ask whether that
inference is so unreasonable as to be unjustifiable. . . .
In other words, an inference need not be compelled by
the evidence; rather, the evidence need only be reason-
ably susceptible of such an inference. . . .
‘‘Finally, on appeal, we do not ask whether there is
a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty.’’ (Citations omitted;
internal quotation marks omitted.) State v. Richards,
196 Conn. App. 387, 395–97, 229 A.3d 1157, cert. granted,
335 Conn. 931, A.3d (2020).
Additionally, ‘‘[r]eview of any claim of insufficiency
of the evidence introduced to prove a violation of a
criminal statute must necessarily begin with the skeletal
requirements of what necessary elements the charged
statute requires to be proved. . . . The state has the
burden of proving beyond a reasonable doubt the defen-
dant’s identity as the perpetrator of the crime.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Pugh, 190 Conn. App. 794, 802–803, 212 A.3d 787, cert.
denied, 333 Conn. 914, 217 A.3d 635 (2019). ‘‘[T]he issue
of the identity of the defendant as [the] perpetrator of
the robbery is one of fact for the jury.’’ State v. Morgan,
274 Conn. 790, 798, 877 A.2d 739 (2005).
The defendant does not dispute that the storage facil-
ity was robbed. Rather, the defendant contends only
that the evidence of his identity as the perpetrator was
insufficient to support the jury’s inference linking him
to the crime. He contends that the evidence of identity
was insufficient because (1) there was no eyewitness
who identified him as the perpetrator, (2) there was no
physical evidence that tied him to the storage facility,
(3) there was no confession, and (4) there was no testi-
mony from an informant. The defendant further argues
that the state relied, in large part, on the use of a mon-
tage of surveillance footage—from the storage facility,
the complex, and the store—that contained gaps in
time, was of poor quality, and purportedly showed the
defendant approaching, robbing, and fleeing the storage
facility. He further contends that, by concluding that the
person in the video is the defendant, the jury engaged
in speculation. We conclude that there was sufficient
evidence presented at trial to satisfy the state’s burden
of proving identity and, ultimately, to support the defen-
dant’s conviction.
First, Luginbuhl testified that the perpetrator was an
African-American man wearing a black hooded
sweatshirt pulled over a baseball cap with a yellow
brim and dark pants. The police investigating the rob-
bery found a black hooded sweatshirt and a baseball
cap with a yellow brim abandoned in a bush near the
storage facility. Shanae Lucky, the defendant’s girl-
friend at the time, testified that the defendant owned
a black hooded sweatshirt and a black hat with a yellow
brim, and that both items of clothing looked similar
to those found by the police near the storage facility.
Furthermore, forensic analysis revealed that the defen-
dant’s ‘‘entire genetic profile’’ was detected and that he
was ‘‘a potential contributor to the major DNA mixture
profile’’ found on the sweatshirt and the cap that were
found near the storage facility. Forensic analysis further
revealed that the expected frequency of individuals who
could be a contributor to the major DNA mixture profile
from the hat is less than 1 in 7 billion in the African-
American, Caucasian, and Hispanic populations, and
that the expected frequency of individuals who could
be a contributor to the major DNA mixture profile from
the sweatshirt is less than approximately 1 in 6100 in
the African-American population, approximately 1 in
5900 in the Caucasian population, and approximately
1 in 6500 in the Hispanic population.
Second, Lucky testified that, on the morning of May
5, 2016, a few hours prior to the robbery, she lent the
defendant her tan 2002 Chevy Malibu so that he could
get the front passenger door repaired, which, at that
time, required tying a seat belt to the door in order to
keep it closed. Conlan testified that, while both he and
Casman were driving on a dirt access road close to the
storage facility, they encountered a man driving a tan
Chevy Malibu. According to Conlan, after the driver
saw the officers, the driver began backing his car in
the opposite direction. Conlan further testified that
when the vehicle eventually turned around, he noticed
that the passenger side door was partially open. Fur-
thermore, he testified that the vehicle that crashed on
Valley Brook Road was the same vehicle he and Casman
encountered on the dirt access road.
Third, after the police commenced pursuit of the vehi-
cle that subsequently crashed on Valley Brook Road,
the vehicle was searched and the contents therein were
inventoried. Murray testified that the contents of the
car included, among other things, $479 that was loosely
scattered over the floor of the passenger seat,3 a black
revolver style pellet gun, and white shoes. Additional
forensic and DNA analysis revealed that the defendant
could not be eliminated as a contributor to the DNA
found on the trigger and handle grip of the gun that was
found in the vehicle. Last, the defendant’s fingerprints
matched those found on the vehicle.
Fourth, Officer Standish testified about the results
of the deployment of his K-9 tracking dog, Cody. Specifi-
cally, Standish testified that, after he led Cody to the
entrance of the public storage and ‘‘casted’’ Cody,4 Cody
led Standish out of the storage facility and south across
Bull Hill Lane toward the complex. When Cody and
Standish reached the area surrounding the complex,
however, a loud noise from an adjacent construction
site interrupted Cody’s tracking. At that point, Standish
had received information via his radio that the pursuit
of the vehicle resulted in a crash on Valley Brook Road;
therefore, he and Cody left the scene of the robbery to
begin a search at the scene of the crash. He further
testified that he had directed Cody to the scent on the
vehicle’s driver seat and that Cody then began to track
that scent. According to Standish, Cody led a team
of police officers past several construction workers,
through several streets, and into the store where he
alerted Standish to the defendant, indicating that the
defendant was the source of the scent obtained by Cody
from the driver’s seat of the vehicle. As a result of
Cody’s tracking efforts, the defendant was located.
Fifth, as noted, surveillance camera footage collected
from the day of the robbery from three primary loca-
tions—the storage facility, the complex, and the store—
was presented to the jury. That footage was compiled
and showed the following: The perpetrator was wearing
a dark hooded sweatshirt, an undershirt with white on
the bottom, a dark cap with a yellow emblem, dark
pants with rips on the front and back, and dark colored
shoes when he robbed the storage facility; an individual
wearing clothing similar to that which the perpetrator
wore during the robbery exited a tan Chevy Malibu, ran
to a bushy area where the sweatshirt and cap were
found, and then returned to the vehicle no longer wear-
ing the sweatshirt or cap; when that individual emerged
from the bushes, he was wearing a ‘‘two-toned’’ shirt
that was dark on top and white on bottom and dark,
ripped jeans; the defendant entered the store with no
shoes, wearing a ‘‘two-toned’’ shirt and pants similar in
color and pattern to those worn by the perpetrator;
when buying flip-flops in the store, the defendant kept
tapping his hand and looking out the window of the
store; and, after completing his purchase, the defendant
went to exit the store but then turned around and went
further into the store until several police officers
entered the store and arrested him. The clothes the
defendant was wearing in the surveillance footage at
the store, after having been tracked down by Cody,
were the same clothes he was wearing earlier that day
when he left Lucky’s home.5
Last, the defendant’s actions immediately following
the robbery are indicative of his consciousness of guilt.
‘‘[Consciousness of guilt] is relevant to show the con-
duct of an accused . . . subsequent to an alleged crimi-
nal act, which may be inferred to have been influenced
by the criminal act. . . . The state of mind which is
characterized as guilty consciousness or consciousness
of guilt is strong evidence that the person is indeed
guilty . . . .’’ (Internal quotation marks omitted.) State
v. Crafter, 198 Conn. App. 732, 744, 233 A.3d 1227 (2020).
‘‘Flight, when unexplained, tends to prove a conscious-
ness of guilt. . . . Flight is a form of circumstantial
evidence. . . . The probative value of evidence of flight
depends upon all the facts and circumstances and is a
question of fact for the jury.’’ (Internal quotation marks
omitted.) State v. Grajales, 181 Conn. App. 440, 448–49,
186 A.3d 1189, cert. denied, 329 Conn. 910, 186 A.3d
707 (2018). In the present case, the driver of a vehicle,
which was similar to that owned by the defendant’s
girlfriend and lent to the defendant, was captured on
surveillance footage reversing direction after the
appearance of an unmarked police vehicle; that same
vehicle was pursued by other police officers until it
ultimately crashed a few streets away from the crime
scene; the driver fled on foot; Cody, the tracking dog,
followed the scent of the driver and led the police offi-
cers to the defendant in the store; and, the defendant,
who originally was attempting to exit the store, upon
seeing the police approach the store, turned around
and went further into the store where he was subse-
quently arrested.
In support of his claim, the defendant relies on this
court’s decision in State v. Billie, 123 Conn. App. 690,
696, 2 A.3d 1034 (2010), and the dissenting opinion in
State v. Osman, 21 Conn. App. 299, 573 A.2d 743 (1990)
(Berdon, J., dissenting in part and concurring in part),
rev’d, 218 Conn. 432, 589 A.2d 1227 (1991), as well as
our Supreme Court’s decision in State v. Osman, 218
Conn. 432, 437, 589 A.2d 1227 (1991). The defendant’s
reliance on these cases is misplaced.
In Billie, an anonymous informant had notified the
police of suspected criminal activity in an area known
for drug trafficking. State v. Billie, supra, 123 Conn.
App. 692. Specifically, ‘‘[t]he informant stated that he
had witnessed a ‘black male’ placing narcotics under-
neath the rear porch of a certain house but did not
provide any further information that could be used to
identify the individual observed.’’ Id. As a result, the
police had removed all but one package of narcotics
and set up surveillance over the area that the informant
described. Id. Later that evening, the police noticed the
defendant as he approached the porch and removed
the hidden narcotics; shortly thereafter, he was
arrested. Id., 693.
On appeal, the defendant in Billie argued that the
state did not produce sufficient evidence to prove
beyond a reasonable doubt that he possessed the nar-
cotics that were removed previously by the police or
that he had the requisite intent to sell; this court agreed.
Id., 694–95. Because the remaining narcotics were not
on the defendant’s person and because the defendant
was not in exclusive possession of the premises, in
order to obtain a conviction, the state needed to ‘‘show
incriminating statements or circumstances that support
an inference that [the defendant] knew of the presence
of the narcotics and had control of them . . . .’’ (Inter-
nal quotation marks omitted.) Id., 698. The state argued
that it met its burden because knowledge and control
of the remaining narcotics could have been inferred
from the correlation between the informant’s observa-
tions and the defendant’s actions. Id. This court was
not persuaded: ‘‘[T]he . . . informant’s statement to
the . . . police was limited to his witnessing a ‘black
male’ placing narcotics underneath the rear porch of a
certain house. This general description alone, totally
devoid of any additional identifying characteristics or
traits, did not provide sufficient information for the jury
reasonably to have concluded that the defendant was
the individual observed by the informant. The individual
observed very well may have been the defendant or
just as readily a drug dealer or user hiding his stash of
narcotics. The evidence simply does not make this clear.
Thus, in the absence of additional identifying informa-
tion, the jury could not have concluded that the defen-
dant was the individual observed by the informant with-
out resorting to speculation.’’ (Footnote omitted.) Id.,
698–99.
Similar to Billie, there was no eyewitness identifica-
tion of the defendant in the present case; rather, a
general description was provided to the police. Unlike
in Billie, however, that description was not limited to
the defendant’s skin color or gender—it also included
the clothing he was wearing at the time, the fact that
he was armed with a gun, and an approximation of how
much money was stolen from the storage facility. As
previously noted, evidence was also presented to the
jury that the defendant owned clothing similar to that
of the perpetrator; the clothing worn by the perpetrator
during the robbery was found near the crime scene and
contained the defendant’s ‘‘entire genetic profile’’; a gun
and an amount of money similar to that taken from the
storage facility were found in the vehicle belonging to
the defendant’s girlfriend, who also testified that she
had lent the defendant her vehicle earlier that day; and
the police had pursued that vehicle from the area of
the crime scene to where it eventually crashed, near the
store where the defendant was arrested. Accordingly,
unlike in Billie, there was additional identifying infor-
mation, as set forth previously in this opinion, from
which the jury could have concluded that the defendant
was the perpetrator.
Equally unpersuasive is the defendant’s reliance on
the dissent in State v. Osman, supra, 21 Conn. App.
314, as well as our Supreme Court’s decision in State
v. Osman, supra, 218 Conn. 437. In Osman, the defen-
dant was convicted of robbery in the first degree and
conspiracy to commit robbery in the first degree. State v.
Osman, supra, 218 Conn. 433. The defendant appealed
to this court, arguing that there was insufficient evi-
dence to identify him as the perpetrator or as a conspira-
tor in the robbery of a convenience store. A majority
of this court disagreed with the defendant on his claim
that the evidence was insufficient to find him guilty of
robbery in the first degree, found that the evidence was
nevertheless sufficient to find him guilty of robbery in
the third degree in violation of General Statutes § 53a-
133 and affirmed his conviction of conspiracy to commit
robbery in the first degree. One judge dissented in part
and concurred in part. State v. Osman, supra, 21 Conn.
App. 314. Our Supreme Court, however, reversed the
judgment of this court. State v. Osman, supra, 218 Conn.
437–38. The evidence presented at trial included the
following: the defendant lived within two miles of the
crime scene; the defendant possessed a pellet gun, a
Halloween costume with red hair, and gray pants, all
of which were similar to those described by the victims;
the defendant tried to borrow money on the day of the
robbery; the defendant and his accomplice were similar
in height to the robbers; and, after the robbery had
occurred, the defendant brought home an expensive
stereo, leather jacket, and leather sneakers, despite hav-
ing been unemployed. State v. Osman, supra, 21 Conn.
App. 301–304.
In the present case, the defendant relies on the dis-
sent in Osman, which opined that the conviction in
Osman ‘‘was upheld on proof of identification based
solely upon circumstantial evidence of mere similarities
not bolstered by similarities of a distinctive nature that
connect the defendant to the crime.’’ State v. Osman,
supra, 21 Conn. App. 314 (Berdon, J., dissenting in part
and concurring in part). Without citing to the dissent,
our Supreme Court concluded, in a per curiam opinion,
that the ‘‘cumulative effect of the evidence elicited at
. . . trial was insufficient to establish beyond a reason-
able doubt the defendant’s identity . . . . To have
arrived at its decision that the defendant was one of
the robbers, the jury would have had to resort to specu-
lation and conjecture and to have drawn unwarranted
inferences from the facts presented.’’ State v. Osman,
supra, 218 Conn. 437.
From our review of the evidence presented at trial
in the present case, we are not persuaded that there
were just ‘‘mere similarities’’ without a ‘‘distinctive
nature’’ that connected the defendant to the crime. On
the contrary, unlike in Osman, the evidence in this case
showed not only that the defendant owned clothing
similar to that worn by the perpetrator, but also that
clothing similar to that worn by the perpetrator was
found abandoned in the bushes near the scene of the
crime and that clothing contained the defendant’s DNA.
Furthermore, video surveillance showed an individual
driving up to the bush in a vehicle matching that which
was owned by Lucky, exiting the vehicle and retreating
behind the bush, and then returning to the vehicle wear-
ing clothing matching that of the defendant at the time
of his arrest. Additionally, as previously noted, a gun
and an amount of money approximating the amount
stolen from the storage facility were found near the
scene of the crime, strewn in a vehicle belonging to
Lucky, who had lent the defendant her vehicle several
hours prior to the crime.
The defendant concludes his claim by making a series
of arguments aimed at reviewing the evidence and
arguing that, together, it demonstrates his innocence.
He further argues that evidence necessary to convict
him was not provided by the state. We are mindful,
however, of our scope of review: ‘‘[W]e give deference
not to the hypothesis of innocence posed by the defen-
dant, but to the evidence and the reasonable inferences
drawable therefrom that support the jury’s determina-
tion of guilt. On appeal, we do not ask whether there
is a reasonable view of the evidence that would support
a reasonable hypothesis of innocence. We ask, instead,
whether there is a reasonable view of the evidence that
supports the jury’s verdict of guilty.’’ (Internal quotation
marks omitted.) State v. Richards, supra, 196 Conn.
App. 407.
On the basis of the foregoing evidence presented at
trial and mindful of our standard of review, we conclude
that there was sufficient evidence from which the jury
reasonably could have found beyond a reasonable
doubt that the defendant was the person who robbed
the storage facility.
II
Next, the defendant claims that this court must
reverse his conviction of robbery in the first degree
because he established the affirmative defense of inop-
erability. The state contends that the defendant failed
to satisfy his burden of proving the affirmative defense
of inoperability by a preponderance of the evidence.
We agree with the state.
The following legal principles are relevant to our
disposition of this claim. ‘‘The state meets its burden
of proof regarding robbery in the first degree by proving
beyond a reasonable doubt that, inter alia, the defendant
displayed or threatened the use of what he represented
to be a firearm. . . . If the defendant so chooses and
the evidence permits, he may assert the affirmative
defense of inoperability. . . . Because inoperability is
an affirmative defense, the defendant was required to
raise and prove it by a preponderance of the evidence.
. . . Proving the defense by a preponderance of the
evidence results in a conviction of robbery in the second
degree.’’ (Citations omitted; internal quotation marks
omitted.) State v. Seay, 128 Conn. App. 518, 523 n.4, 16
A.3d 1278, cert. dismissed, 302 Conn. 907, 23 A.3d 1246
(2011); see also General Statutes § 53a-134 (a) (4). On
appeal, the standard for reviewing the defendant’s affir-
mative defense claim is the same standard used for a
sufficiency of the evidence claim. See State v. D’Antu-
ono, 186 Conn. 414, 421, 441 A.2d 846 (1982); see also
part I of this opinion.
In this case, the jury necessarily found that the state
met its burden of proving the elements of robbery in
the first degree and that the defendant did not prove
the affirmative defense of inoperability by a preponder-
ance of the evidence. Evidence was presented during
trial that a gun was used by the perpetrator during the
robbery and that a gun later was found in the vehicle
that the defendant had borrowed from his girlfriend.
Shortly after the defendant’s arrest, the gun was recov-
ered from the passenger side floor of the vehicle, inven-
toried, and placed in the police evidence room. During
trial, Detective Murray testified about a test that was
performed to determine if the gun had been operable.
Despite the three attempts that were made, the gun was
unable to discharge, even after the cylinder in the gun
was replaced. Murray was unable to testify about the
operability of the gun prior to its recovery or during
the robbery. In fact, there was no evidence provided
during the trial that addressed the operability of the
gun at the time of the robbery.
According to the defendant, the gun was seized on
May 5, 2016, and tested on November 17, 2016. He
argues that because it is reasonable to infer that the
gun was stored in such a manner as to prevent deteriora-
tion, the only reasonable inference is that the gun was
in the same condition on the day it was tested as it was
during the robbery. We are not persuaded.
During trial, Murray testified that a close examination
of the gun revealed that there was dirt inside of it.
Murray, however, was unable to state whether the dirt
found in the gun was the same type of dirt found on
the defendant’s clothes at the time of his arrest or if it
was the same type of dirt that surrounded the sweatshirt
and hat hidden in the bushes. Furthermore, evidence
also was presented to the jury that the vehicle in which
the gun was found crashed prior to the defendant’s
arrest. On the basis of the evidence presented at trial,
the jurors were free to infer that the gun was not in
the same condition at the time of testing as it was during
the robbery. Regardless of the weight of that evidence,
however, there was no evidence provided during the
trial that addressed the operability of the gun at the
time of the robbery. Accordingly, the jury reasonably
could have found that the defendant failed to meet his
burden of proving the affirmative defense of inoperabil-
ity by a preponderance of the evidence.
In support of his claim, the defendant also cites to
State v. Ortiz, 71 Conn. App. 865, 804 A.2d 937, cert.
denied, 261 Conn. 942, 808 A.2d 1136 (2002), and dis-
cusses State v. Seay, supra, 128 Conn. App. 518. Neither
case assists him in this appeal.
In Ortiz, unlike in the present case, evidence showed
that the gun at issue was inoperable both before and
after the robbery. State v. Ortiz, supra, 71 Conn. App.
876. As previously noted, in the present case there was
no evidence proffered at trial that addressed the opera-
bility of the gun before or during the robbery; therefore,
Ortiz is inapposite.
The defendant also seems to make the same argument
that the Seay defendant attempted to make—that
because there was no evidence that the gun was opera-
ble, the defendant met his burden.6 See State v. Seay,
supra, 128 Conn. App. 523. In Seay, the defendant was
convicted of robbery in the first degree after he robbed
a liquor store. Id., 520. During the robbery, he had held
a duffel bag with ‘‘some kind of firearm’’ inside but
never actually removed it from the bag. Id. After the
robbery, the police searched the defendant’s property
and found broken pieces of what, when put together,
was described to be a ‘‘ ‘facsimile firearm’ . . . .’’ Id.,
524. Additionally, ‘‘[d]uring closing argument, the prose-
cutor suggested that the facsimile firearm likely was
used by the defendant during the robbery.’’7 Id.
On appeal, the defendant in Seay argued that his
conviction of robbery in the first degree should be
replaced by the lesser included offense of robbery in
the second degree because he had met his burden of
proving the affirmative defense of inoperability. Id., 523.
More specifically, he argued that there was no evidence
that the facsimile firearm was operable and that there
was no evidence that a gun other than that one was
used during the robbery. Id. Despite the prosecutor’s
argument that the facsimile firearm was likely the one
used during the robbery, this court held that ‘‘[a]lthough
the jury reasonably could have found that the firearm
found by the police was the same item used by the
defendant during the robbery, the jury was not obligated
so to find. It was within the province of the jury not to
believe . . . that the facsimile firearm found by the
police was used by the defendant during the robbery.
. . . We note that [the victim] did not testify that the
facsimile firearm found by the police was the same
weapon used during the robbery. Operability is not an
element of robbery in the first degree. It was the defen-
dant’s burden to prove inoperability and the jury reason-
ably could have determined that the defendant had not
proven the affirmative defense of inoperability by a
preponderance of the evidence.’’ Id., 524.
As previously noted, in the present case, there was
no evidence presented that the gun was operable, which
the state was not required to prove. There also, how-
ever, was no evidence that the gun was inoperable at
the time of the robbery, which the defendant was
required to prove in order to meet his burden with
respect to the affirmative defense of inoperability. The
evidence presented to the jury was that the gun seized
from the vehicle contained dirt, that it was found in
the vehicle of the defendant’s girlfriend after that vehi-
cle was crashed by the defendant, and that the gun was
inoperable several months after the robbery when it
was tested by the police. Just as this court held in Seay,
in the present case, it was within the province of the
jury to disbelieve that the gun was inoperable during
the robbery. Indeed, under Seay, the jury could have
found that the gun recovered from the Chevy Malibu
was not the same gun the defendant used during the
robbery. The defendant offered no affirmative evidence
that the firearm used during the robbery was inopera-
ble. Accordingly, the jury reasonably could have deter-
mined that the defendant did not prove the affirmative
defense of inoperability by a preponderance of the
evidence.
III
The defendant next claims that the trial court erred
in denying his motion for a mistrial. Specifically, he
contends that a mistrial should have been granted after
Detective Murray testified that the defendant’s clothing
appeared to be the same as the perpetrator’s and after
she identified the defendant as the perpetrator in the
surveillance footage. The defendant argues that such
testimony constituted improper lay opinion under § 7-
1 of the Connecticut Code of Evidence and an opinion
on the ultimate issue of identity in violation of § 7-3 of
the Connecticut Code of Evidence. The state argues
that the trial court properly exercised its discretion and
that, even if Murray’s testimony was improper, it did
not violate the defendant’s right to a fair trial. We agree
with the state.
We begin with our standard of review. ‘‘In our review
of the denial of a motion for mistrial, we have recog-
nized the broad discretion that is vested in the trial
court to decide whether an occurrence at trial has so
prejudiced a party that he or she can no longer receive
a fair trial. The decision of the trial court is therefore
reversible on appeal only if there has been an abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Montanez, 185 Conn. App. 589, 602, 197 A.3d 959
(2018), cert. denied, 332 Conn. 907, 209 A.3d 643 (2019).
Additionally, ‘‘[t]o the extent [that] a trial court’s
admission of evidence is based on an interpretation of
the Code of Evidence, our standard of review is plenary.
. . . We review the trial court’s decision to admit evi-
dence, if premised on a correct view of the law, how-
ever, for an abuse of discretion. . . . It is axiomatic
that [if premised on a correct view of the law, the] trial
court’s ruling on the admissibility of evidence is entitled
to great deference. . . . In this regard, the trial court
is vested with wide discretion in determining the admis-
sibility of evidence . . . . Accordingly, [t]he trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion. . . . [I]n determining whether there has
been an abuse of discretion, every reasonable presump-
tion should be made in favor of the correctness of the
trial court’s ruling, and we will upset that ruling only
for a manifest abuse of discretion.’’ (Internal quotation
marks omitted.) State v. Petersen, 196 Conn. App. 646,
663–64, 230 A.3d 696, cert. denied, 335 Conn. 921, 232
A.3d 1104 (2020).
The following facts are relevant to this claim. Murray
testified about many facets of the case, including the
defendant’s attire as compared to that of the perpetrator
portrayed in sequenced video surveillance footage.
More specifically, during her testimony, she stated that
‘‘[t]his . . . footage from [the store] . . . shows an
individual entering the store wearing no footwear and
appearing to be clad in the same clothing that the indi-
vidual in the footage from [the complex] was wearing.’’
Murray then testified that the individual in the store
was arrested and also identified the person who was
arrested as being the defendant. Shortly thereafter, the
state questioned Murray about the locations from which
she obtained the defendant’s fingerprints, including at
the counter of the storage facility, to which Murray
stated: ‘‘I did not process the [storage facility] counter
for fingerprints because, in the video, you could see
[the defendant] actually doesn’t touch . . . .’’ Before
Murray could finish her statement, defense counsel
objected and asked that the statement be stricken from
the record. The court ordered the statement stricken
and admonished the jurors not to consider it in their
deliberations. Following the remainder of Murray’s tes-
timony, defense counsel orally moved for a mistrial,
arguing that Murray’s statements were prejudicial, that
they were induced by the state’s witness, and that,
because this is a case of identification, the incident was
irreparable. The court, without explanation, denied the
defendant’s motion.
On December 5, 2017, defense counsel renewed his
motion for a mistrial with respect to Murray’s testimony
that the perpetrator had worn the same clothing as that
worn by the defendant. The court denied the defen-
dant’s motion. On February 9, 2018, prior to sentencing,
defense counsel moved for a new trial, arguing, again,
that Murray was unqualified to testify to the sameness
or similarities of the perpetrator’s clothing compared
to that of the defendant’s, and that she had testified to
the ultimate issue of identity. The court denied the
defendant’s motion and provided the following reason:
‘‘[T]he defendant has not met the test under [§ 42-53]
of the Practice Book, either . . . for an error by reason
of which the defendant is constitutionally entitled to a
new trial, or . . . for any other error which the defen-
dant can establish was materially injurious to him or
her. . . . [T]hose standards have not been met.’’8
In his challenge to the court’s denial of his motion for
a mistrial, the defendant posits that Murray’s testimony
constituted improper lay opinion and an opinion on the
ultimate issue of identity. We disagree and address both
in turn.
A
Section 7-1 of the Connecticut Code of Evidence pro-
vides: ‘‘If a witness is not testifying as an expert, the
witness may not testify in the form of an opinion, unless
the opinion is rationally based on the perception of the
witness and is helpful to a clear understanding of the
testimony of the witness or the determination of a fact
in issue.’’ The defendant argues that Murray’s testimony
about the defendant’s clothing represented layperson
testimony and that Murray was not established as an
expert in fashion or clothing.
Our Supreme Court analyzed § 7-1 extensively in
State v. Holley, 327 Conn. 576, 175 A.3d 514 (2018).
On appeal in that case, the defendant challenged the
admission of testimony by the police that identified
marks on the defendant’s body as bite marks. Id., 604.
The defendant claimed that this testimony violated § 7-
1, arguing that the testifying officer was not an expert
capable of making such an identification. Id., 607–608.
In its analysis, the court recounted the language of § 7-
1 and stated that ‘‘the commentary to the rule cites
as illustrative matters upon which nonexpert opinion
testimony has been held admissible include: the market
value of property where the witness is the owner of
the property . . . the appearance of persons or things
. . . sound . . . the speed of an automobile . . . and
physical or mental condition.’’ (Emphasis in original;
internal quotation marks omitted.) Id., 608–609. Our
Supreme Court then proceeded to recount several cases
in which it concluded that the challenged testimony
constituted ‘‘the appearance of persons or things’’ and
was, thus, admissible at the discretion of the trial court.
Id., 609; see State v. Schaffer, 168 Conn. 309, 318–19,
362 A.2d 893 (1975) (‘‘It is permissible to admit into
evidence the opinions of common observers in regard
to common appearances, facts and conditions . . . .
[I]t is indispensable that the opinions be founded on
their own personal observation, and not [on] the testi-
mony of others, or on any hypothetical . . . .’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.)).
Given our Supreme Court’s conclusions in Holley,
we are not persuaded that Murray’s testimony, in the
present case, as to the defendant’s pants violated § 7-1.
B
We now address the defendant’s claim that Murray’s
testimony constituted an opinion on the ultimate issue
of identity and that it was harmful. Section 7-3 (a) of the
Connecticut Code of Evidence provides: ‘‘Testimony in
the form of an opinion is inadmissible if it embraces
an ultimate issue to be decided by the trier of fact,
except that, other than as provided in subsection (b),
an expert witness may give an opinion that embraces
an ultimate issue where the trier of fact needs expert
assistance in deciding the issue.’’ The defendant argues
that Murray’s testimony that the defendant was wearing
similar pants as the perpetrator and that the defendant
was the individual at the storage facility counter on
the surveillance footage went to the ultimate issue of
identity. In support of his argument, he cites to State
v. Finan, 275 Conn. 60, 881 A.2d 187 (2005). Specifically,
he argues that our Supreme Court concluded in Finan
that the identification of a perpetrator on the video
surveillance was an ultimate issue for the jury and that
the admission of testimony from four police officers as
to that defendant’s identity on the video was harmful
error.
In Finan, our Supreme Court stated that an ultimate
issue is characterized ‘‘as one that cannot reasonably
be separated from the essence of the matter to be
decided [by the trier of fact].’’ (Internal quotation marks
omitted.) Id., 66. The court concluded that, on the facts
of the case, ‘‘the identification of the defendant as one
of the perpetrators shown on the videotape was an
ultimate issue . . . .’’ Id., 67. The court further con-
cluded that ‘‘[t]he identification of the defendant . . .
on the videotape was fundamental to the jury’s conclu-
sion that the defendant was one of the perpetrators
of the robbery. Accordingly . . . [it was] improperly
determined that the lay witness testimony [of the four
police officers] correctly was admitted.’’ Id., 68–69.
Even if we assume that Murray’s statement identi-
fying the defendant was improper opinion testimony,
we are not persuaded that it was harmful. ‘‘In order to
establish reversible error on an evidentiary impropriety
. . . the defendant must prove both an abuse of discre-
tion and a harm that resulted from such abuse. . . .
When an [evidentiary impropriety] . . . is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . [W]hether
[the improper admission of a witness’ testimony] is
harmless in a particular case depends upon a number
of factors, such as the importance of the witness’ testi-
mony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength
of the prosecution’s case. . . . Accordingly, a noncon-
stitutional error is harmless when an appellate court
has a fair assurance that the error did not substantially
affect the verdict.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Bermudez, 195 Conn. App.
780, 797, 228 A.3d 96, cert. granted on other grounds,
335 Conn. 908, 227 A.3d 521 (2020).
It is noteworthy that, after Murray identified the
person in the surveillance footage as the defendant,
defense counsel objected immediately, and the court
ordered the statement stricken from the record. Addi-
tionally, the court admonished the jurors and instructed
them, twice, to disregard Murray’s statement and not
to consider it in their deliberations. ‘‘If curative action
can obviate the prejudice, the drastic remedy of a mis-
trial should be avoided. . . . [A]s a general matter, the
jury is presumed to follow the court’s curative instruc-
tions in the absence of some indication to the contrary.
. . . [T]he burden is on the defendant to establish that,
in the context of the proceedings as a whole, the
stricken testimony was so prejudicial, notwithstanding
the court’s curative instructions, that the jury reason-
ably cannot be presumed to have disregarded it.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Gonzalez, 167 Conn. App. 298, 302–303, 142 A.3d
1227, cert. denied, 323 Conn. 929, 149 A.3d 500 (2016).
Furthermore, the jury in this case, unlike in Finan,
was presented with significant other circumstantial evi-
dence that connected the defendant to the robbery,
separate and distinct from that of Murray’s singular
stricken statement. See part I of this opinion. That other
evidence, taken together, provided the jury with a rea-
sonable basis on which to conclude that the defendant
was the individual in the surveillance footage. Addition-
ally, the defendant has not demonstrated that the
stricken testimony was so prejudicial that the jury rea-
sonably cannot be presumed to have disregarded it.
Accordingly, we conclude that the trial court did not
abuse its discretion in denying the defendant’s motion
for a mistrial.
IV
Last, the defendant claims that the court erred in
failing to give the jury his requested instruction on iden-
tification. More specifically, the defendant argues that
the requested instruction was crucial to his defense of
misidentification and to the central issue of identifica-
tion. We disagree.
The following additional facts are relevant to this
claim. With regard to identity, the court gave the jury
the following instruction: ‘‘The state has the burden of
proving beyond a reasonable doubt that the defendant
was the perpetrator of the crime. You, the jury, must
be satisfied beyond a reasonable doubt that the defen-
dant was the perpetrator of the crime or you must find
the defendant not guilty. The defendant denies that he
is the person who was involved in the commission of
the alleged offense.’’ The court’s instruction is only a
portion of what the defendant had requested; specifi-
cally, the defendant requested that the court include
the following additional language as part of its identity
instruction: ‘‘If you have a reasonable doubt as to the
accuracy of the identification, you must find the defen-
dant not guilty. . . . In this case, Renae Luginbuhl, the
employee at the Public Storage, and the only person in
the facility at the time of the incident . . . did not iden-
tify [the defendant] as the perpetrator of this offense.
In a one-on-one identification procedure, she did not
make an identification.’’
We turn now to the relevant legal principles that
guide our review of this claim. ‘‘It is a well established
principle that a defendant is entitled to have the jury
correctly and adequately instructed on the pertinent
principles of substantive law. . . . The primary pur-
pose of the charge to the jury is to assist [it] in applying
the law correctly to the facts which [it] find[s] to be
established.’’ (Citations omitted; internal quotation
marks omitted.) State v. Ortiz, 252 Conn. 533, 560–61,
747 A.2d 487 (2000). ‘‘[T]he test of a court’s charge is
not whether it is as accurate upon legal principles as
the opinions of a court of last resort but whether it
fairly presents the case to the jury in such a way that
injustice is not done to either party under the estab-
lished rules of law. . . . As long as [the instructions]
are correct in law, adapted to the issues and sufficient
for the guidance of the jury . . . we will not view the
instructions as improper.’’ (Internal quotation marks
omitted.) State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161
(1995).
‘‘Our Supreme Court has held that identification
instructions are not constitutionally required and [e]ven
if [a] court’s instructions were less informative on the
risks of misidentification . . . the issue is at most one
of instructional error rather than constitutional error.
A new trial would only be warranted, therefore, if the
defendant could establish that it was reasonably proba-
ble that the jury was misled. . . . The ultimate test of
a court’s instructions is whether, taken as a whole, they
fairly and adequately present the case to a jury in such
a way that injustice is not done to either party under
the established rules of law. . . .
‘‘We review nonconstitutional claims of instructional
error under the following standard. While a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored,
a [trial] court need not tailor its charge to the precise
letter of such a request. . . . If a requested charge is
in substance given, the [trial] court’s failure to give a
charge in exact conformance with the words of the
request will not constitute a ground for reversal. . . .
As long as [the instructions] are correct in law, adapted
to the issues and sufficient for the guidance of the jury
. . . we will not view the instructions as improper.’’
(Citation omitted; internal quotation marks omitted.)
State v. Crosby, 182 Conn. App. 373, 410–11, 190 A.3d
1, cert. denied, 330 Conn. 911, 193 A.3d 559 (2018). ‘‘A
challenge to the validity of jury instructions presents a
question of law over which this court has plenary
review.’’ (Internal quotation marks omitted.) Id., 411.
‘‘Significantly, our Supreme Court [has] . . . empha-
sized that a trial court retains the discretion to decide
whether, under the specific facts and circumstances
presented, focused and informative jury instructions on
eyewitness testimony are warranted. . . . In reviewing
the discretionary determinations of a trial court, every
reasonable presumption should be given in favor of the
correctness of the court’s ruling.’’ (Internal quotation
marks omitted.) Id., 416.
The defendant cites two cases in support of his claim.
First, he relies on our Supreme Court’s holding in State
v. Cerilli, 222 Conn. 556, 567, 610 A.2d 1130 (1992), that
a ‘‘specific instruction on identification was warranted
because [the defendant’s] theory of defense was mis-
identification and because there were sufficient
instances of lack of clarity and sufficient inconsisten-
cies in the identification testimony of the victim and [a
witness].’’ Because the present case did not involve
issues of misidentification or a lack of clarity and suffi-
cient inconsistencies in identification, we conclude that
the defendant’s reliance on Cerilli is misplaced.9
Second, the defendant relies on our Supreme Court’s
analysis in State v. Guilbert, 306 Conn. 218, 246, 49 A.3d
705 (2012). Specifically, he emphasizes the court’s focus
on the scientific developments as to eyewitness identifi-
cation instructions and that instructions reflecting the
substance of those scientific findings were important
to assuring a fair trial. He also relies on the court’s
conclusion in Guilbert that ‘‘a trial court retains the
discretion to decide whether, under the specific facts
and circumstances presented, focused and informative
jury instructions on the fallibility of eyewitness identifi-
cation evidence . . . would alone be adequate to aid
the jury in evaluating the eyewitness identification at
issue. . . . [A]ny such instructions should reflect the
findings and conclusions of the relevant scientific litera-
ture pertaining to the particular variable or variables
at issue in the case; broad, generalized instructions
on eyewitness identifications . . . do not suffice.’’
(Citations omitted; emphasis added; footnote omitted.)
Id., 257–58.
This court, however, already has concluded that
‘‘Guilbert concerned the admissibility of expert testi-
mony, not a challenge to jury instructions. Although
the court in Guilbert did acknowledge the widespread
judicial recognition that eyewitness identifications are
potentially unreliable in a variety of ways unknown to
the average juror . . . it did not mandate that such
factors be included in jury instructions.’’ (Citation omit-
ted; emphasis added; internal quotation marks omitted.)
State v. Crosby, supra, 182 Conn. App. 411–12. Addition-
ally, to the extent that Guilbert requires more specific
jury instructions with regard to eyewitness identifica-
tions, we find the defendant’s reliance thereon unavail-
ing because, in the present case, there were no eyewit-
ness identifications. As previously noted, the sole
potential eyewitness was unable to identify the defen-
dant.
After our careful review of the evidence and the jury
instructions, we cannot conclude that those instruc-
tions were incorrect, insufficient, or misleading to
the jury.
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
General Statutes § 53a-134 (a) provides in relevant part: ‘‘A person is
guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . . (4) displays or threat-
ens the use of what he represents by his words or conduct to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm, except that in any
prosecution under this subdivision, it is an affirmative defense that such
pistol, revolver, rifle, shotgun, machine gun or other firearm was not a
weapon from which a shot could be discharged. . . .’’
The jury also found the defendant guilty of robbery in the second degree
in violation of General Statutes § 53a-135 (a) (1) (B). The court, however,
vacated the defendant’s conviction of robbery in the second degree because
it concluded that a conviction of first and second degree robbery would
violate the prohibition against double jeopardy.
2
Consistent with Connecticut case law, we conclude that the trial court
should have dismissed rather than denied the defendant’s March 21, 2018
motion for acquittal and a new trial due to lack of jurisdiction. See State
v. McCoy, 331 Conn. 561, 586–87, 206 A.3d 725 (2019) (‘‘a trial court loses
jurisdiction once the defendant’s sentence is executed, unless there is a
constitutional or legislative grant of authority’’).
3
Luginbuhl did not recall the exact amount of money stolen from the
storage facility. She testified that she began the day with $250 in a drawer
and gave the robber what was in the drawer, plus the $50 and $100 bills
that she kept underneath the drawer. During cross-examination, defense
counsel showed Luginbuhl a report she had given to the police indicating
the amount of money stolen. After reading the report, she testified that
there was $347 underneath the register. She did not clearly state, however,
the total amount of money inside the drawer, including the original $250.
To the extent that there is a discrepancy with regard to the amount of
money found in the vehicle as compared to that having been taken from
the storage facility, this court has held that ‘‘a possible discrepancy in the
evidence does not necessarily outweigh the evidence tending to show guilt.’’
State v. Ingram, 132 Conn. App. 385, 392, 31 A.3d 835 (2011), cert. denied,
303 Conn. 932, 36 A.3d 694 (2012).
4
‘‘Casting’’ is the process of bringing a trained tracking dog to an area
where a suspect was last seen in order to have the dog pick up the sus-
pect’s scent.
5
The defendant contends that the surveillance footage is unreliable. Spe-
cifically, he argues that the footage contained inaccurate time stamps and
that to render any conclusions therefrom would require speculation. He
further argues that, because the time stamps are inaccurate, ‘‘it cannot be
said, without speculation, that they show events happening at or around
the time of the robbery.’’ We find the defendant’s arguments unavailing.
During trial, Detective Murray testified that the surveillance footage from
155 Bull Hill Lane—the footage covering the back service road area—’’was
approximately five hours and twenty minutes later than what the time is
on the display. So, the time would say, like, 06:45 because it’s in military
time, but it’s actually at five hours and twenty minutes [later] . . . .’’ Murray
further testified that the ‘‘video from 157 Bull Hill Lane that—the actual
time with respect to that video is actually three minutes later than the
display time. So, if it says 12:07, [then] the video was actually 12:10.’’ Murray’s
testimony, which the jury was free to accept, clarified the time stamps
provided to the jury and, furthermore, established that the robbery of the
storage facility, the pursuit of the Chevy Malibu, and the arrest of the
defendant all took place between 12:05 and 12:45 p.m.
6
The defendant argues in his brief that Seay should be overruled. As we
have often stated, however, ‘‘[i]t is axiomatic that one panel of this court
cannot overrule the precedent established by a previous panel’s holding.
. . . The reversal may be accomplished only if the appeal is heard en banc.’’
(Citation omitted; internal quotation marks omitted.) State v. Carlos P., 171
Conn. App. 530, 545 n.12, 157 A.3d 723, cert. denied, 325 Conn. 912, 158
A.3d 321 (2017); see also Practice Book § 70-7.
7
In Seay, the prosecutor argued that ‘‘[w]e’ve introduced a facsimile
firearm into evidence. We can’t prove beyond a reasonable doubt that that’s
the one that’s in the bag, but it’s a reasonable likelihood that that is the one
that was in the bag. I think common sense would tell you that that probably
was.’’ (Internal quotation marks omitted.) State v. Seay, supra, 128 Conn.
App. 524.
8
Practice Book § 42-53 provides in relevant part: ‘‘(a) Upon motion of the
defendant, the judicial authority may grant a new trial if it is required in
the interests of justice. Unless the defendant’s noncompliance with these
rules or with other requirements of law bars his or her asserting the error,
the judicial authority shall grant the motion:
‘‘(1) For an error by reason of which the defendant is constitutionally
entitled to a new trial; or
‘‘(2) For any other error which the defendant can establish was materially
injurious to him or her. . . .’’
9
In Cerilli, our Supreme Court concluded that a specific identification
instruction was necessary because the defendant’s theory of defense was
misidentification and, as noted, there were inconsistencies and a lack of
clarity in the identification testimony. State v. Cerilli, supra, 222 Conn. 567.
Specifically, the victim ‘‘[i]n a forty-two page typewritten statement given
to the police on October 26, 1987 . . . described her assailant as a white
man between 5’10’’ and 6’ tall, a little flabby or pouchy, thirty-five to forty
years old or older. She described his skin as having ‘little holes and cratering
in his face,’ and she stated that the blemishes on his face ‘looked like
somebody had acne.’ In response to the question by the police whether it
was ‘[h]eavy acne or just light acne?’ she responded, ‘Yeah, and they was
red.’ In response to the question, ‘Red in complexion?’ she responded, ‘Mm
hmm, real pale.’ In this statement, the victim described the assailant’s hair
as ‘long, dark . . . brown . . . feathered up . . . and it came down to
about his shoulders [and] neck and he had it curled . . . .’ She also described
it as ‘real dark brown, almost . . . black’ with ‘light brown, brown/blond
. . . streaks . . . mixed in . . . .’ She described his nose as ‘funny
shape[d],’ ‘real round . . . skinny and . . . round, real curved . . .
pointed at the end . . . .’ ’’ Id., 564 n.6. Further, ‘‘[s]he described his car as
dark brown, square, with a light tan interior, and with nothing unusual about
the rearview mirror.’’ Id. During trial, however, the victim described the
defendant as follows: ‘‘[T]he assailant [had], inter alia, acne and a pock-
marked face, and a prominent, hawk-like nose.’’ Id. Additionally, ‘‘[s]he . . .
recalled describing the assailant’s car as dark brown with a tan interior and
a vinyl roof.’’ Id. Another witness, however, prior to trial, described the
defendant as ‘‘having light brown or blond curly hair that reached down to
about his neckline and was combed back. She described his face as having
‘little holes’ in it that looked ‘like craters,’ and his nose as ‘funny shaped.’ ’’ Id.
Unlike Cerilli, in the present case, there was a single and consistent
description by Luginbuhl as to what the perpetrator was wearing during
the commission of the crime. Additionally, Luginbuhl was unable to describe
the facial features or other physical characteristics of the perpetrator; rather,
she provided only a description of his clothing. Accordingly, we conclude
that the factual scenario underlying our Supreme Court’s decision to require
a more specific jury instruction on identification in Cerilli is inapplicable
in the present case.