State v. Robles ( 2023 )

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STATE OF CONNECTICUT v. ULISES ROBLES
(SC 20452)
McDonald, D’Auria, Mullins, Ecker and Seeley, Js.
Syllabus
Convicted, after a jury trial, of manslaughter in the first degree with a firearm
and, after a trial to the court, of criminal possession of a firearm and
illegal possession of a weapon in a motor vehicle, the defendant appealed
to this court. The defendant had walked over to a parked car in which
the victim was sitting in the driver’s seat. While the driver’s side window
was down, the defendant began speaking to the victim and pulled out
a handgun. The defendant then leaned into the car and fired a gunshot.
The victim ultimately died from injuries she sustained as a result of a
gunshot wound to her chest. During the defendant’s trial, the prosecutor
and defense counsel submitted a stipulation to the trial court, which
indicated that the defendant previously had been convicted of two felon-
ies unrelated to the charges in the present case. The court acknowledged
that the stipulation was being admitted only for purposes of ‘‘count
two,’’ namely, the charge of criminal possession of a firearm. The court
admitted the stipulation into evidence, stating that it would be a full
exhibit ‘‘for purposes of the court trial,’’ which pertained to both of the
weapons charges. In addition, the state’s chief medical examiner, G,
testified about photographs from the victim’s autopsy, which G had not
performed, and about an autopsy report that G had reviewed before
trial but that previously had been prepared by a former assistant medical
examiner. On appeal from the judgment of conviction, held:
1. The defendant could not prevail on his unpreserved claim that the trial
court had violated his constitutional right to confrontation by allowing
G to testify about the autopsy photographs and autopsy report:
G testified, on the basis of his personal knowledge and experience, that
the autopsy photographs indicated that the victim had been shot at close
range, and, because this portion of G’s testimony was based solely on
his examination of the photographs rather than the autopsy report, and
because defense counsel was afforded the opportunity to cross-examine
G regarding this testimony, the admission of G’s testimony relating to
the autopsy photographs did not violate the defendant’s right to confron-
tation, and, accordingly, the defendant could not establish a constitu-
tional violation for purposes of the third prong of State v. Golding (213
Conn. 233).
Moreover, G’s testimony regarding the autopsy report, in which G stated
that the report specified the injuries that resulted from the path that the
bullet took once it had entered the victim’s body, and that the report
indicated that those injuries were the sole cause of the victim’s death,
was harmless insofar as G’s testimony regarding the cause of the victim’s
death had minimal impact on the jury’s verdict, and, accordingly, the
defendant’s claim regarding G’s testimony about the autopsy report failed
under the fourth prong of Golding.
Specifically, other evidence admitted at the defendant’s trial indepen-
dently established that the victim had died of a gunshot wound inflicted
by the defendant, including G’s testimony based on the autopsy photo-
graphs and the testimony of multiple eyewitnesses who had seen the
defendant, while in possession of a handgun, lean into the driver’s side
window of the vehicle in which the victim was sitting, heard a gunshot,
and viewed the gravely wounded victim.
Furthermore, defense counsel acknowledged during closing argument
that G’s testimony regarding the cause of the victim’s death was not
particularly important and even conceded that the victim died from
injuries that the defendant had inflicted, as counsel’s theory of defense
was that the defendant had been too intoxicated to form the intent to
kill the victim and that the jury, therefore, should have found him guilty
only of criminally negligent homicide.
2. The evidence was insufficient to support the defendant’s conviction of
illegal possession of a weapon in a motor vehicle, and, accordingly, this
court reversed the defendant’s conviction on that charge and remanded
the case with direction to render a judgment of acquittal on that charge
and for resentencing on the remaining counts:
To prove that an individual is guilty of illegal possession of a weapon
in a motor vehicle, the state must prove beyond a reasonable doubt,
among other elements, that he had no proper permit for the weapon
that he was charged with possessing.
The stipulation that the prosecutor and defense counsel submitted to
the court indicated that the defendant previously had been convicted of
two felonies, and the defendant’s prior felony convictions likely would
have rendered him ineligible, pursuant to statute (§§ 29-28 (b) (2) (A)
and 29-30 (b)), to receive a permit or permit renewal at or around
the time of the incident that formed the basis of the charges in the
present case.
Nevertheless, the prosecutor presented no other proof during the presen-
tation of evidence that the defendant did not have a proper permit when
he was in possession of the weapon with which he shot the victim.
Because the prosecutor and the trial court stated during the trial that
the stipulation was being admitted only for purposes of the count of the
information charging the defendant with criminal possession of a firearm,
and because evidence that is offered and admitted for a limited purpose
cannot be used for another and totally different purpose, the trial court
improperly relied on the stipulation to support its determination that
the defendant could not have had a proper permit in connection with
its finding of guilt on the count of the information charging the defendant
with illegal possession of a weapon in a motor vehicle.
Moreover, because the stipulation was the only evidence that the defen-
dant previously had been convicted of a felony, which was critical to
the trial court’s determination that the defendant had lacked a proper
permit, the evidence presented was insufficient to support the defen-
dant’s conviction of illegal possession of a weapon in a motor vehicle.
Even though defense counsel stated that the stipulation was limited to
the ‘‘court trial,’’ which involved both of the weapons charges, and the
trial court acknowledged, when the stipulation was admitted, that it was
‘‘going to be a full exhibit for purposes of the court trial,’’ the foregoing
references to ‘‘court trial,’’ when viewed in context, were merely confirm-
ing the prosecutor’s prior statement that the stipulation was being admit-
ted only as to the count charging the defendant with criminal possession
of a firearm, which crime specifically includes an element that the defen-
dant have a prior felony conviction, and that the stipulation needed to
be marked as a court exhibit to ensure that it was not provided to the
jury, which was tasked with considering only the homicide charge.
Furthermore, the trial court’s remark after the close of evidence that
the stipulation was ‘‘the only evidence that was received solely for the
second and third count,’’ which pertained to both weapons charges, was
not an evidentiary ruling, as the stipulation had been admitted two weeks
beforehand, during the presentation of evidence, and there was no merit
to the state’s claim that defense counsel’s failure to object when the
prosecutor argued that the stipulation was relevant to the count charging
the defendant with illegal possession of a weapon in a motor vehicle or
when the trial court relied on the stipulation to support its finding that
the defendant was guilty of that crime demonstrated that counsel
intended that the stipulation would be admitted for purposes of the
count charging the defendant with illegal possession of a weapon in a
motor vehicle.
In addition, when, as in the present case, a fact finder relies on evidence
that was admitted, but for a purpose other than the limited purpose for
which the evidence was properly introduced, a reviewing court cannot
consider that evidence in determining whether the evidence was insuffi-
cient to support the defendant’s conviction and must direct a judgment
of acquittal if it concludes that other admitted evidence was insufficient
to support the conviction.
(Two justices concurring in part and dissenting
in part in two opinions)
Argued October 18, 2022—officially released September 19, 2023
Procedural History
Substitute information charging the defendant with
the crimes of murder, criminal possession of a firearm
and illegal possession of a weapon in a motor vehicle,
brought to the Superior Court in the judicial district of
Hartford, where the charge of murder was tried to the
jury before Graham, J.; verdict of guilty of the lesser
included offense of manslaughter in the first degree with
a firearm; thereafter, the charges of criminal possession
of a firearm and illegal possession of a weapon in a
motor vehicle were tried to the court, Graham, J.; find-
ing of guilty; judgment of guilty in accordance with the
jury’s verdict and the court’s finding, from which the
defendant appealed to this court. Reversed in part;
judgment directed in part; further proceedings.
Julia K. Conlin, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Walcott,
state’s attorney, and Anthony Bochicchio, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
SEELEY, J. In the early morning hours of New Year’s
Day, 2017, the defendant, Ulises Robles, shot the victim,
Luz Rosado, from close range while she sat in her vehi-
cle. The state charged the defendant with murder in
violation of General Statutes § 53a-54a (a), criminal pos-
session of a firearm in violation of General Statutes
(Rev. to 2017) § 53a-217 (a) (1),1 and illegal possession
of a weapon in a motor vehicle in violation of General
Statutes (Rev. to 2017) § 29-38 (a).2 The defendant
elected a jury trial on the murder charge and a bench
trial on the charges of criminal possession of a firearm
and possessing a weapon in a motor vehicle. The jury
found the defendant not guilty of murder but guilty of
the lesser included offense of manslaughter in the first
degree with a firearm in violation of General Statutes
§ 53a-55a. After the bench trial, the court found the
defendant guilty of both criminal possession of a fire-
arm and possessing a weapon in a motor vehicle.
The defendant appealed from the judgment of the
trial court to this court pursuant to General Statutes
§ 51-199 (b) (3).3 On appeal, the defendant claims that
(1) the trial court violated his right to confront the
witnesses against him under the sixth amendment to the
United States constitution4 by allowing Chief Medical
Examiner James Gill to testify about the results of the
victim’s autopsy, which he had not performed himself,
and (2) the evidence was insufficient to support his
conviction of possessing a weapon in a motor vehicle.
We disagree with the defendant’s first claim and affirm
the trial court’s judgment as to the conviction of man-
slaughter in the first degree with a firearm. With respect
to the defendant’s second claim, we agree that the evidence
was insufficient to support his conviction of possessing
a weapon in a motor vehicle and, therefore, reverse the
trial court’s judgment as to that conviction.
The jury reasonably could have found the following
relevant facts. On the evening of December 31, 2016,
the defendant and two friends, Richard Colon and Jose
Restrepo, were celebrating New Year’s Eve. After hav-
ing a few drinks at another friend’s home, Colon drove
the defendant and Restrepo to Lambada, a night club
in Hartford. Colon drove a black Nissan Maxima. Once
they arrived outside of Lambada, they stayed in the
vehicle and continued drinking for a period of time.
After midnight, they entered Lambada. Inside the club,
the friends continued drinking, and the defendant appear-
ed to others to be intoxicated. They stayed at the club
until it closed at 3 a.m.
Colon then drove the defendant to Park Street,
intending to drop him off there. When they arrived at
Park Street, Colon saw a friend and pulled over to wish
the friend a happy birthday. After speaking with his
friend, he noticed the victim, sitting in the driver’s seat
of a silver Honda Accord across the street. In the pas-
senger seat of the victim’s vehicle was Nelson Ortiz.
Colon walked over to the vehicle, briefly spoke to the
victim, kissed her on the cheek, wished her a happy
new year and told her to call him. Colon then walked
away from the vehicle.
The defendant also had approached the driver’s side
of the vehicle and began speaking with the victim. He
remained there after Colon left. While speaking to the
victim, the defendant pulled out a black semiautomatic
handgun and ‘‘racked’’ it, meaning he loaded a new
round into the chamber. Ortiz thought that the defendant
was simply showing off the gun in a bragging manner.
Meanwhile, Scott Parker, a Hartford police officer
on patrol in the area, was driving toward the victim’s
vehicle. As he approached the vehicle, he saw the defen-
dant standing along the driver’s side. Parker observed
that the defendant was ‘‘animated in his gestures,’’ but
Parker could not hear what he was saying. Parker saw
the defendant lean into the victim’s vehicle and then
heard a gunshot. At that point, Parker saw the defendant
back away from the driver’s side window of the vehicle
holding a handgun.
Parker stopped his vehicle and ordered the defendant
to drop the handgun, but the defendant continued walking
toward the Nissan Maxima, which was parked in front
of the victim’s vehicle. The defendant entered the pas-
senger side of the Nissan Maxima with the handgun.
The defendant called to Colon, asking for the keys.
When Colon refused, the defendant exited the Nissan
Maxima and ran westbound on Park Street. Parker
chased and ultimately apprehended the defendant a
short distance away from the shooting.
After handcuffing the defendant and placing him in the
custody of another police officer, Parker returned to
the scene of the shooting. When he looked inside of the
victim’s vehicle, he saw that the victim had a gunshot
wound to her chest. She was unresponsive. It was later
determined that the bullet had perforated the victim’s aorta,
trachea and esophagus, which resulted in her death.
The defendant was charged in a substitute informa-
tion with murder in violation of § 53a-54a (a) (count
one), criminal possession of a firearm in violation of
§ 53a-217 (a) (1) (count two), and possessing a firearm
in a vehicle in violation of § 29-38 (a) (count three).
The murder count was tried to a jury, and the two
firearm counts were tried to the court. The jury found
the defendant not guilty of murder but guilty of the
lesser included offense of manslaughter in the first
degree with a firearm. The trial court found the defen-
dant guilty of both firearm counts. The court sentenced
the defendant to a total effective sentence of twenty-six
years of imprisonment. This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that he was deprived of
his sixth amendment right to confront witnesses against
him when the trial court allowed Gill to testify regarding
the victim’s autopsy, which Gill had not performed him-
self but was instead performed by former assistant med-
ical examiner Susan Williams. He contends that Gill’s
testimony concerning Williams’ autopsy report consti-
tuted testimonial hearsay because the report was created
in anticipation of trial. Accordingly, he contends, Gill’s
testimony was inadmissible. See Crawford v. Washing-
ton, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177(2004) (‘‘[when] testimonial [hearsay] evidence is at
issue . . . the [s]ixth [a]mendment demands what the
common law required: unavailability and a prior oppor-
tunity for cross-examination’’); State v. Walker, 332
Conn. 678, 689, 212 A.3d 1244 (2019) (‘‘testimonial hear-
say is admissible against a criminal defendant at trial
only if the defendant had a prior opportunity for cross-
examination and the witness is unavailable to testify
at trial’’ (internal quotation marks omitted)).
The state responds that, because the defense made
a tactical decision not to raise this claim at trial, the
claim fails under the third prong of State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188(2015). See State v. Holness, 289 Conn. 535, 543–44, 958
A.2d 754 (2008) (defendant cannot prevail under third
prong of Golding ‘‘when . . . counsel has waived a
potential constitutional claim in the exercise of his or
her professional judgment’’). In the alternative, the state
claims that the admission of Gill’s testimony about the
autopsy report was harmless beyond a reasonable doubt
because it established only the cause of the victim’s
death, including that she was shot at close range, which
was consistent with the defendant’s theory that the gun
accidentally discharged when he was intoxicated and
showing it off to the victim. In addition, the state con-
tends that Gill’s testimony about the autopsy report
was cumulative of other testimony because (1) Gill
independently testified that the autopsy photographs
had shown that the victim was shot at close range,
and the admission of this testimony did not violate the
confrontation clause; and (2) the testimony of eyewit-
nesses overwhelmingly corroborated Gill’s testimony
based on the autopsy report that the victim was shot
at close range and that she died from the gunshot.5
We agree with the state that the admission of Gill’s
testimony was harmless beyond a reasonable doubt,
and, therefore, we need not address the state’s con-
tention that the defendant waived this claim.
The following additional facts are relevant to this
claim. Before trial, the prosecutor filed a pretrial wit-
ness list that included both Gill and Williams as poten-
tial witnesses. At trial, the prosecutor called only Gill
as a witness. Gill testified that Williams had performed
the autopsy on the victim but that she no longer worked
in his office. Gill also testified that he had reviewed
Williams’ autopsy report before trial.
Gill further testified that Williams’ report indicated
that the victim had died by a gunshot wound to her
upper chest. He testified that the report indicated that
the bullet perforated the victim’s aorta, trachea, and
esophagus before becoming lodged in a bone in her
spinal column, and that bleeding from the aorta caused
cardiac tamponade, which prevented the heart from
pumping and caused the victim’s death. Gill explained
that the injuries from the gunshot were the sole cause
of the victim’s death. Defense counsel did not object
to any of this testimony, and neither the prosecutor nor
defense counsel sought to have the autopsy report itself
admitted into evidence at trial.
During Gill’s testimony, the prosecutor introduced
into evidence several photographs from the autopsy,
with no objection by defense counsel. Gill testified that
the photographs showed the presence of ‘‘stippling’’ on
the skin around the entry wound. He explained that
stippling consists of visible bumps on exposed skin
caused by partially burned gunpowder grains dis-
charged from a firearm at close range. He further testi-
fied that the stippling visible in the autopsy photographs
suggested that the gun that inflicted the fatal gunshot
wound was ‘‘within about six inches or so’’ of the victim
when it was fired.
Defense counsel cross-examined Gill, utilizing and
highlighting parts of the autopsy report indicating that
the victim had alcohol, marijuana and phencyclidine
(PCP) in her system at the time of her death, as well
as questioning him with respect to the caliber of bullet
that was recovered from the victim’s body. There was
no cross-examination about the autopsy report as it
related to the cause of death or any other issues.
During closing argument, defense counsel acknowl-
edged that the defendant had shot and killed the victim
but claimed that the defendant neither had intended to
cause the victim’s death nor had acted recklessly in
doing so. Defense counsel argued that the defendant
was, therefore, guilty only of criminally negligent homi-
cide, not murder or manslaughter.
We conclude that (1) to the extent that the defendant
challenges the admission of Gill’s testimony concerning
the autopsy photographs, the admission of that testi-
mony did not violate the confrontation clause, and (2)
because Gill’s testimony based on the autopsy photo-
graphs, as well as other eyewitness testimony, indepen-
dently established that the victim died after she was
shot at close range, the admission of Gill’s testimony
concerning Williams’ autopsy report was harmless.
With respect to the autopsy photographs, Gill testi-
fied, on the basis of his personal knowledge and exper-
tise, that they showed stippling, which indicated that
the victim had been shot at a range of approximately
six inches. This portion of his testimony was based
solely on his examination of the autopsy photographs,
not on the autopsy report.6 Because defense counsel
could have subjected Gill’s testimony about the photo-
graphs to cross-examination, we conclude that the
admission of the testimony did not violate the confron-
tation clause.7 See State v. Lebrick, 334 Conn. 492, 528,
223 A.3d 333 (2020) (‘‘[when] . . . expert witnesses
present their own independent judgments, rather than
merely transmitting testimonial hearsay, and are then
subject to cross-examination, there is no [c]onfronta-
tion [c]lause violation’’ (internal quotation marks omit-
ted)). We conclude, therefore, that this claim fails under
the third prong of Golding.
With respect to the defendant’s claim that the admission
of Gill’s testimony based on Williams’ autopsy report
violated the confrontation clause, we conclude that, even
if the testimony had been improperly admitted, because
Gill’s testimony about the photographs constituted ad-
missible, independent and compelling evidence that the
victim died of the gunshot wound that the defendant
had inflicted—and because the defense conceded as
much at trial—the state has sustained its burden of
demonstrating that any claimed error was harmless
beyond a reasonable doubt. See, e.g., State v. Campbell,
328 Conn. 444, 512, 180 A.3d 882 (2018) (‘‘[i]t is well
established that a violation of the defendant’s right to
confront witnesses is subject to harmless error analy-
sis’’ (internal quotation marks omitted)).8 Moreover,
multiple eyewitnesses saw the defendant lean into the
driver’s side window of the victim’s vehicle, heard a
gunshot and saw the gravely wounded victim. Most
significant, the prosecutor introduced into evidence a
written statement from Ortiz, who was sitting in the
passenger side of the vehicle at the time the victim was
shot. In his statement, which was read into evidence,
Ortiz averred that, on the night of the shooting, he and
the victim went to get gas and then for a ride. As they
were driving around, they saw a couple of men near
the corner of Park Street and Broad Street. The victim
parked the vehicle and the two men, whom Ortiz had
never seen before, approached the driver’s side of the
vehicle and began talking to the victim. Ortiz did not
understand the entirety of the conversation because
the victim and the men were speaking in English, which
Ortiz did not speak. One of the men left after a minute,
but the other man remained next to the vehicle. The
man who remained next to the vehicle then took out
a semiautomatic handgun and ‘‘racked’’ it. Ortiz stated
that the man was not acting in a threatening manner
but seemed to be bragging and showing off the handgun.
After producing the gun, the man stepped in front of
the vehicle for a moment and then returned to the
driver’s side window. At that point, Ortiz heard a gun-
shot and looked at the victim. He saw blood and noticed
that the victim was having a hard time breathing.
In addition to Ortiz’ statement, Parker, who was on
patrol in the area of Park Street on the night of the
shooting, testified that he saw the defendant talking
with the victim and leaning into the driver’s side window
of her vehicle. Parker was not able to hear the conversa-
tion but thought the defendant seemed animated, as if
he was arguing. As the defendant was leaning into the
window, Parker heard a ‘‘bang’’ and stopped his cruiser.
At that point, Parker saw the defendant lean back out
of the window of the vehicle and noticed a black semiau-
tomatic handgun in the defendant’s hand. After appre-
hending the defendant, Parker returned to the vehicle
and saw that the victim had a gunshot wound to her
chest and was unresponsive.
Finally, as we noted, defense counsel acknowledged
during his closing argument that Gill’s testimony on
the cause of the victim’s death was not particularly
important, and he conceded that the victim died from
the wound that the defendant had inflicted.9 He argued
only that the defendant was too intoxicated to form the
intent to kill and that the jury should, therefore, find
him guilty only of criminally negligent homicide. This
argument is entirely consistent with Gill’s testimony
that (1) according to the autopsy report, the victim died
from a single gunshot wound, and (2) based on the
stippling present in the autopsy photographs, the defen-
dant shot her at close range.
We therefore conclude that Gill’s testimony that the
cause of the victim’s death was the gunshot had minimal
impact on the jury’s verdict. There simply was no genu-
ine issue at trial concerning the cause of the victim’s
death or whether the defendant had shot her from close
range. Instead, the primary issue that the jury had to
determine, as the court indicated in its jury charge,
was whether the defendant acted intentionally, with
extreme indifference to human life, recklessly or with
criminal negligence, an issue on which Gill’s testimony
was, at best, only minimally probative. Accordingly, we
conclude that, even if the trial court had improperly
admitted Gill’s testimony based on the autopsy report,
the state has met its burden of demonstrating that any
error in that regard was harmless beyond a reasonable
doubt and the claim, therefore, fails under the fourth
prong of Golding.
The defendant contends that, to the contrary, the
issue of his proximity to the victim at the time of the
shooting was in dispute and was critical to establishing
his intent. He further suggests that, in the absence of
Gill’s testimony, the jury reasonably could have credited
Colon’s testimony that the defendant was across the
street from the vehicle in which the victim was sitting
when the gun went off. We are not persuaded. Colon
did not testify that the defendant was across the street
but, rather, that he was uncertain as to the defendant’s
precise location at the time of the shooting.10 In contrast,
Ortiz, who had no apparent motive to lie, and who defense
counsel singled out as ‘‘the most important [witness]
in this case,’’ stated unequivocally that he saw the defen-
dant standing next to the driver’s side window of the
victim’s vehicle when the gun went off. Parker also
testified unequivocally that the defendant was leaning
into the window when the gun went off. We conclude,
therefore, that it is not reasonably possible that Gill’s
testimony about the autopsy report could have influ-
enced the judgment of the jury as to any disputed issue
bearing on any element of the crime.
II
The defendant next claims that the evidence was
insufficient to support his conviction of possessing a
weapon in a motor vehicle in violation of § 29-38 (a)11
(count three). Specifically, the defendant contends that
there was insufficient evidence to support the trial
court’s finding that he did not possess a proper permit
for the gun on the following two grounds: (1) the trial
court could not rely on the parties’ stipulation that the
defendant had been convicted of a felony to support
its finding that he could not have had a proper permit
for purposes of count three, charging him with violating
§ 29-38, because the stipulation was admitted exclu-
sively for purposes of count two, charging him with
criminal possession of a firearm in violation of § 53a-
217 (a) (1),12 and (2) even if the trial court properly
relied on the stipulation, it improperly took judicial
notice of General Statutes §§ 29-28 and 29-3013 to sup-
port its determination that the defendant could not have
had a proper permit for the gun because the prosecutor
did not ask the court to take judicial notice of those
statutes during its presentation of evidence.14 We agree
with the defendant that the trial court improperly relied
on the stipulation for purposes of count three. Because
the stipulation was the only evidence that the defendant
had been convicted of a felony, which was critical to
the trial court’s determination that the defendant lacked
a proper permit for the gun, which, in turn, was an
element of § 29-38, we conclude that there was insuffi-
cient evidence to support the defendant’s conviction
under that statute.
The following facts are relevant to our resolution of
this claim. As we previously indicated, the defendant
elected a bench trial on count two, charging him with
criminal possession of a firearm in violation of § 53a-
217 (a) (1), and count three, possessing a weapon in a
motor vehicle in violation of § 29-38 (a). The parties
submitted a stipulation to the trial court, stating: ‘‘The
[s]tate and [d]efense stipulate to the fact that prior to
January 1, 2017, the [d]efendant had been convicted of
a felony, to wit: (1) On January 4, 2006, in the Superior
Court, [g]eographical [a]rea [number fourteen], [the
defendant] was convicted of [illegal possession of a]
[w]eapon in a [m]otor [v]ehicle, in violation of . . .
§ 29-38. (2) On December 5, 2006, in the Superior Court,
[g]eographical [a]rea [number fourteen], [the defen-
dant] was convicted of [b]urglary in the [t]hird [d]egree,
in violation of [General Statutes §] 53a-103.’’ At the time
the stipulation was submitted to the court at trial, the
prosecutor stated that the stipulation was being admit-
ted only for purposes of the second count. Defense
counsel then remarked that ‘‘this stipulation is limited
to the court trial,’’ and the parties agreed that it should
be marked as a court exhibit and should not be submit-
ted to the jury. The trial court acknowledged twice that
the stipulation was being admitted only for purposes
of count two and admitted it into evidence, stating that
‘‘[i]t’s going to be a full exhibit for purposes of the court
trial . . . .’’15 The state presented no other evidence at
trial that would support a finding that the defendant
lacked a proper permit for a firearm.
Two weeks after the stipulation was submitted as
an exhibit, one day after the close of evidence and
immediately before the prosecutor’s closing argument,
the trial court stated: ‘‘[T]he only evidence that was
received solely for the second and third count was the
stipulation. There was no testimony taken outside of
the jury’s presence. So, with that in mind, I’m going to
have the state go ahead and make argument with regard
to [count] two and count three to the court.’’ (Emphasis
added.)
With respect to count three, the prosecutor argued:
‘‘As far as the [charge of possessing a] weapon in a
motor vehicle, I would note that [the defendant] men-
tioned having the gun at the club. He had to make it
from the club to Park Street in a motor vehicle. He then
jumps into another motor vehicle, potentially still with
that gun, or still with that gun according to Officer
Parker. So, I think, really, we don’t know if either count
is necessarily in question. I will also note that there’s
no limitation as to barrel length of the gun, [as] charged
in the second count, nor, do I believe, in the third count.’’
The court then engaged in the following colloquy
with the prosecutor:
‘‘The Court: All right. Let me make inquiry with regard
to the carrying the weapon in the motor vehicle
[charge]. There is a fourth . . . element that the defen-
dant had no permit for the pistol.
‘‘[The Prosecutor]: Sure, Your Honor. He’s a con-
victed felon, and he’s not capable of holding a permit.
‘‘The Court: And you’re referring to state statute?
‘‘[The Prosecutor]: I thank Your Honor for taking
judicial notice of that.
‘‘The Court: Yeah, I—and I don’t think I actually need
to take judicial notice of the statute, which—
‘‘[The Prosecutor]: No—no.
‘‘The Court: —[T]he evidence is closed already, so it
might be a little late for that, but yes, sir . . . .’’
The next day, after the jury returned its verdict of
guilty on the charge of manslaughter in the first degree
with a firearm, the trial court found the defendant guilty
on counts two and three. The trial court explained:
‘‘As to count three, [possessing a] weapon in a motor
vehicle, the court finds that the state has proven the
elements of that offense beyond a reasonable doubt.
The defendant was at the place, date, and time alleged
in count three of the information, occupying a Nissan
Maxima, and, at that time, he had in his possession a
pistol. He knew he had the pistol while he was in the
vehicle. As a convicted felon since 2006, he had no
permit for the pistol. [He was] ineligible for such under
. . . [§ 29-28 (b) (2) (A)], and any permit he might have
held before 2006 would have expired by the passage of
time under . . . [§ 29-30 (b) and (c)]. Therefore, at the
time the defendant possessed the weapon in the vehicle,
he had no permit.
‘‘I further find that, at the time the defendant pos-
sessed the weapon in the vehicle, which was shortly
after the shot was fired, he was then the sole occupant
of the vehicle. Therefore, I find the defendant guilty as
to count three.’’
The standard of review we apply to a claim of insuffi-
cient evidence is well established. Our analysis pro-
ceeds in two parts: ‘‘First, we construe the evidence in
the light most favorable to sustaining the verdict. Sec-
ond, we determine whether [on] the facts so construed
and the inferences reasonably drawn therefrom the
[finder of fact] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. . . .
‘‘[The finder of fact] must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the [finder of fact] to
conclude that a basic fact or an inferred fact is true,
the [finder of fact] is permitted to consider the fact
proven and may consider it in combination with other
proven facts in determining whether the cumulative
effect of all the evidence proves the defendant guilty
of all the elements of the crime charged beyond a rea-
sonable doubt.’’ (Internal quotation marks omitted.)
State v. Campbell, supra, 328 Conn. 503–504.
In addition, and of particular relevance to the present
case, we repeatedly have emphasized that ‘‘[e]vidence
[that] is offered and admitted for a limited purpose only
purpose.’’ (Emphasis omitted; internal quotation marks
omitted.) Curran v. Kroll, 303 Conn. 845, 864, 37 A.3d
700 (2012); see Smith v. Greenwich, 278 Conn. 428,
451, 899 A.2d 563 (2006) (‘‘Evidence admissible for one
purpose but not for another may nevertheless be admit-
ted. . . . The court should, however, caution the jury
. . . about the limited purpose of the exhibit.’’ (Internal
quotation marks omitted.)); Fair Haven & Westville
Railroad Co. v. New Haven, 77 Conn. 667, 674, 60 A.
651 (1905) (taking note of evidentiary principle that
‘‘forbids evidence offered and admitted . . . for a lim-
ited purpose, and facts found [in light of] such evidence,
to be used for another and totally different purpose’’),
aff’d, 203 U.S. 379, 27 S. Ct. 74, 51 L. Ed. 237 (1906);
State v. Knox, 201 Conn. App. 457, 472, 242 A.3d 1039(2020) (when evidence was admitted exclusively for
purposes of one particular count, jury could not rely on
evidence to support finding that state had established
element of crime charged in another count), cert.
denied, 336 Conn. 905, 244 A.3d 146 (2021), and cert.
denied, 336 Conn. 906, 243 A.3d 1180 (2021); see also
Conn. Code Evid. § 1-4 (‘‘[e]vidence that is admissible
. . . for one purpose but not for another, is admissible
. . . for that purpose’’ (emphasis added)); 1 R. Mos-
teller et al., McCormick on Evidence (8th Ed. 2020)
§ 59, pp. 481–83 (when evidence is admitted for limited
purposes, trial court must instruct jury that it can con-
sider evidence only for allowable purpose); Connecticut
Criminal Jury Instructions 2.6-8, available at http://jud.ct.
gov/JI/Criminal/Criminal.pdf (last visited September 8,
2023) (‘‘[a]ny testimony or evidence which [the trial
court] identified as being limited to a purpose or a de-
fendant, [the jury] will consider only as it relates to the
limits for which it was allowed, and [the jury] shall not
consider such testimony and evidence in finding any
other facts as to any other issue or defendant’’).
Section 29-38 (a) provides in relevant part: ‘‘Any per-
son who knowingly has, in any vehicle owned, operated
or occupied by such person, any weapon, any pistol or
revolver for which a proper permit has not been issued
as provided in section 29-28 . . . shall be guilty of a
class D felony . . . .’’ To prove a violation of § 29-38
(a), ‘‘the state must prove the following elements: (1)
that the defendant owned, operated or occupied the
vehicle; (2) that he had a weapon in the vehicle; (3)
that he knew the weapon was in the vehicle; and (4)
that he had no [proper] permit or registration for the
weapon.’’ State v. Delossantos, 211 Conn. 258, 273, 559
A.2d 164, cert denied, 493 U.S. 866, 110 S. Ct. 188, 107
L. Ed. 2d 142 (1989).
We agree with the defendant that the evidence in the
present case was insufficient to support a finding that
he had no proper permit for the gun. As we previously
indicated, the prosecutor and the trial court stated that
the stipulation that the defendant had been convicted
of two felonies in 2006 was being admitted only for
purposes of count two, charging the defendant with
criminal possession of a firearm, and, therefore, the
stipulation was not before the court for purposes of
count three, charging the defendant with possessing a
weapon in a motor vehicle.16 As we also have previously
indicated, ‘‘[e]vidence [that] is offered and admitted for
a limited purpose only . . . cannot be used for another
and totally different purpose.’’ (Emphasis omitted; internal
quotation marks omitted.) Curran v. Kroll, supra, 303
Conn. 864. Accordingly, we conclude that the trial court
improperly relied on the stipulation—which was the
only evidence that would support a finding that the
defendant had been convicted of a felony—to support
its finding that the defendant could not have had a
proper permit for the gun, which is a required element
of § 29-38 (a).17
In support of its argument to the contrary, the state
notes that, although the prosecutor stated that ‘‘both
the state and [the] defense signed a stipulation regard-
ing the prior felony as it applies to the second count,’’
and although the trial court also acknowledged twice
that the stipulation was being admitted only for pur-
poses of count two, defense counsel stated that ‘‘this
stipulation is limited to the court trial,’’ which included
both counts two and three. (Emphasis added.) The state
further points out that the trial court stated at the time
that the stipulation was admitted that it was ‘‘going to
be a full exhibit for purposes of the court trial’’ and,
two weeks later, after the close of evidence, that ‘‘the
only evidence that was received solely for the second
and third count was the stipulation.’’ (Emphasis added.)
The state contends that these remarks establish that
the parties intended, and that the trial court found, that
the stipulation was being admitted for purposes of both
count two and count three. The state further contends
that the court’s finding is reviewable only for clear error.
See, e.g., WiFiLand, LLP v. Hudson, 153 Conn. App.
87, 99–100, 100 A.3d 450 (2014) (‘‘We review the court’s
determination of the parties’ intent, when the language
of the stipulation is ambiguous, as we would review a
factual conclusion. . . . We will uphold the court’s fac-
tual findings unless those findings are clearly errone-
ous.’’ (Internal quotation marks omitted.)).
We are not persuaded by the state’s argument. Rather,
we conclude that, when the crucial, initial references
to the ‘‘court trial’’ are considered in context, it is clear
that the comments made by defense counsel and the
court were confirming the prosecutor’s statement that
the stipulation was being admitted only as to count
two, to establish the fact that the defendant had a prior
felony conviction to establish that element of the criminal
possession count and, therefore, needed to be marked
as a court exhibit to ensure that it was not provided to
the jury. With respect to the court’s remark after the
close of evidence that the stipulation was ‘‘the only
evidence that was received solely for the second and
third count,’’ that remark manifestly was not an eviden-
tiary ruling, as the evidence had been admitted two
weeks earlier. (Emphasis added.) Rather, it appears to
be an imprecise way to state that the stipulation was the
only evidence presented exclusively to the trial court.
Alternatively, this statement may have been the first
indication that the trial court was laboring under the
misapprehension that the stipulation had been admitted
for purposes of count three, in which case the court’s
understanding was clearly erroneous because there is
nothing in the record to support it.18 See, e.g., O’Connor
v. Larocque, 302 Conn. 562, 574–75, 31 A.3d 1 (2011)
(‘‘[a] finding of fact is clearly erroneous when there
is no evidence in the record to support it’’ (internal
quotation marks omitted)).
The state also contends that the fact that defense
counsel did not object when the prosecutor argued that
the stipulation was relevant to count three or when the
trial court relied on the stipulation to support its ruling
that the defendant had violated § 29-38 (a) shows that
defense counsel intended that the stipulation would be
admitted for purposes of both count two and count three.
We are not persuaded. As the trial court itself observed,
the evidentiary record was closed when the prosecutor
first relied on the stipulation with respect to count
three. Defense counsel did not correct the prosecutor’s
misstatement of the record—perhaps due to oversight,
perhaps because a misstatement by opposing counsel
regarding the state of the record required no response,
perhaps for another reason—but counsel certainly did
not express agreement, and we are aware of no princi-
ple of law permitting an alteration of the evidentiary
record, on the basis of the failure to object to an oppos-
ing lawyer’s misstatement during closing argument. The
stipulation had been admitted into evidence only as to
count two during the evidentiary phase of the trial, and
nothing that occurred during closing arguments changed
that fact.19 In any event, we cannot conclude that this
conduct nullifies the clearly stated intent of the parties
at the time of the admission of the stipulation that it
was being admitted only for purposes of count two.
Justice Mullins contends, in his concurring and dis-
senting opinion,20 that, properly understood, the defen-
dant’s claim that the trial court could not consider the
stipulation for purposes of count three constitutes an
unpreserved claim of evidentiary error, not an insuffi-
ciency of the evidence claim. Accordingly, he contends
that, even if the trial court improperly considered the
stipulation for purposes of count three, any such error
would require a new trial and would not necessitate an
acquittal.21 This argument misunderstands the nature
of the claim of error. Contrary to the concurring and
dissenting justice’s contention, the issue is not whether
the trial court improperly admitted the stipulation for
purposes of count three. The issue, rather, is whether
the court improperly used evidence that was properly
admitted in order to support a different purpose for
which the evidence was not admitted. The trial court
did not admit the stipulation for purposes of count three
at all because it was never asked to do so.
Far from a ‘‘meaningless distinction,’’ as character-
ized by the concurring and dissenting justice, there is
a world of difference between a claim that a trial court
erroneously admitted evidence and a claim that the
decision maker misused evidence, i.e., that there was
insufficient evidence to sustain a conviction except by
the decision maker’s use of evidence that was off limits
for that purpose. If evidence offered by the state is
admitted over an objection and is sufficient to establish
the point for which it was admitted, the state is entitled
to rely on the ruling and has no obligation to present
additional, cumulative evidence on that point. See, e.g.,
State v. Gray, 200 Conn. 523, 538, 512 A.2d 217, cert.
denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373(1986). If the trial court’s evidentiary ruling is over-
turned on appeal, it would be unfair not to allow the
state an opportunity to present other evidence in sup-
port of the disputed point. No such considerations of
reliance and fairness justify a second bite at the apple
when, as in the present case, the state simply failed to
present sufficient evidence in support of a required
element of an offense at trial. See State v. Kareski,
137 Ohio St. 3d 92, 98, 998 N.E.2d 410 (2013) (court
considered ‘‘unavailing any claim by the state that it
relied on the trial court’s taking of judicial notice [of
fact establishing element of offense, and any] concern
about forcing the state to offer cumulative evidence on
every element rings hollow when the state offered’’ no
evidence in support of element).
Moreover, to conclude that the state is entitled to a
second bite at the apple when it had failed to present
sufficient evidence in support of a required element at
trial but when the fact finder has nevertheless found
that the element was satisfied by using evidence that
was not admitted or was not admitted for the purpose
for which it was used, would almost certainly violate
the double jeopardy clause of the fifth amendment to
the United States constitution. See, e.g., State v. Colton,
234 Conn. 683, 691–92, 663 A.2d 339 (1995) (‘‘[o]rdi-
narily, the [d]ouble [j]eopardy [c]lause imposes no limi-
tation [on] the power of the government to retry a
defendant who has succeeded in persuading a court to
set his conviction aside, unless the conviction has been
reversed because of insufficiency of the evidence’’
(internal quotation marks omitted)), cert. denied, 516
U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). The
state’s failure to present sufficient evidence at trial,
unlike the trial court’s improper admission of evidence
at trial, is not a trial error for double jeopardy purposes,
and, therefore, the double jeopardy clause bars retrial.
See Burks v. United States, 437 U.S. 1, 15, 98 S. Ct. 2141,
57 L. Ed. 2d 1 (1978) (for double jeopardy purposes,
‘‘reversal for trial error, as distinguished from eviden-
tiary insufficiency, does not constitute a decision to the
effect that the government has failed to prove its case’’);
see also, e.g., State v. Kareski, supra, 137 Ohio St. 3d
98–99 (when state presented no evidence to support
required element of offense at trial but trial court
improperly took judicial notice of fact that supported
required element, evidence was insufficient, trial court’s
improper taking of judicial notice did not convert state’s
failure to prove case into trial error and double jeopardy
clause barred retrial).22 Accordingly, in determining
whether a remand for a new trial would result in a
double jeopardy violation, the focus should be on the
sufficiency of the evidence presented by the state,
including any evidence that the trial court erroneously
admitted under the rules of evidence, not on the suffi-
ciency of the evidence used by the fact finder, including
evidence that was not admitted at all or that was not
admitted for the purpose for which it was used.23
Thus, when a trial court improperly considers evi-
dence that was not admitted at trial for the relevant
purpose, or that was not admitted at all, the reviewing
court applies an insufficiency analysis based only on
the evidence that was actually admitted and directs a
judgment of acquittal if it concludes that the evidence
was insufficient. See, e.g., State v. Knox, supra, 201
Conn. App. 473–74 (‘‘Given the state’s agreement to use
the defendant’s prior felony conviction only for a limited
purpose, we reject its efforts to now apply that evidence
to the tampering with physical evidence charge. We con-
clude, therefore, that the state presented insufficient
evidence regarding the defendant’s intent when he
departed from the scene of the shooting. The evidence
regarding his prior felony conviction could not be used
to establish the element of intent in [connection with]
the tampering with physical evidence charge. For these
reasons, we conclude that no reasonable trier of fact
could have found the defendant guilty of this charge,
and the trial court properly granted the defendant’s
motion for judgment of acquittal as to the charge of
tampering with physical evidence.’’ (Footnote omit-
ted.)); Olivier v. Fraenkel Co., Docket No. 2006 CA
1501, 2007 WL 1300930, *2 (La. App. May 4, 2007) (trial
court should not have considered documents that were
not introduced into evidence at trial, and reviewing
court could not consider them on appeal); Hawes v.
Downing Health Technologies, LLC, Docket No. CV-
16-857599, 2022 WL 1573737, *6 (Ohio App. May 19,
2022) (‘‘[Certain documents] were not admitted, or even
offered, at trial and should not have been considered by
the trial court in rendering its decision. Consequently,
in evaluating any of [the] assignments of error that
[require] us to examine the evidence presented with
regard to a claim, we must consider only whether the
actual admitted evidence was sufficient to meet [the
plaintiff’s] burden of proof without relying [on] the
[unadmitted evidence] cited by the trial court. If the
trial court considered evidence not admitted at trial,
we must determine whether the trial court could have
made the same decision without the evidence not admit-
ted at trial.’’), appeal denied, 169 Ohio St. 3d 1502, 207
N.E.3d 839 (2023); State v. Kareski, supra, 137 Ohio St.
3d 98–99 (when state presented no evidence to support
required element of offense at trial but trial court
improperly took judicial notice of fact that would sup-
port required element, reviewing court could not con-
sider that fact when conducting sufficiency analysis,
and acquittal was required because evidence was insuf-
ficient); see also McDaniel v. Brown, 558 U.S. 120, 131,
130 S. Ct. 665, 175 L. Ed. 2d 582 (2010) (when determin-
ing whether evidence was sufficient to sustain convic-
tion, ‘‘a reviewing court must consider all of the evi-
dence admitted by the trial court, regardless of whether
that evidence was admitted erroneously’’ (emphasis
added; internal quotation marks omitted)); Dixon v. von
Blanckensee, 994 F.3d 95, 103 (2d Cir. 2021) (‘‘federal
appellate courts will not consider . . . evidence [that
is] not part of the trial record’’ (internal quotation marks
omitted)); State v. Edwards, 314 Conn. 465, 478, 102
A.3d 52 (2014) (‘‘we cannot consider evidence not avail-
able to the trial court to find adjudicative facts for the
first time on appeal’’); State v. Morelli, 293 Conn. 147,
153, 976 A.2d 678 (2009) (‘‘a claim of insufficiency of
the evidence must be tested by reviewing no less than,
and no more than, the evidence introduced at trial’’
(emphasis added; internal quotation marks omitted)).24
Indeed, the concurring and dissenting justice has not
cited, and our research has not revealed, a single case
in which a reviewing court conducting an insufficiency
analysis has considered evidence that was not admitted
at trial or that was admitted only for a purpose other
than the purpose for which it was used.
To the extent that the concurring and dissenting jus-
tice contends that, whenever a trial court in a bench trial
uses evidence that was clearly admitted for a limited,
different purpose, it is implied that the trial court admit-
ted the evidence for that purpose, albeit improperly,
we disagree. First, we are aware of no authority for the
proposition that a trial court can, sua sponte, admit
evidence, or expand the limited purpose for which evi-
dence was admitted, after the close of evidence.25 Sec-
ond, as we previously explained, the constitutionality
of allowing a retrial when the state has failed to present
adequate evidence at trial to support a required element
of an offense but when the trial court has incorrectly
concluded, sua sponte, that evidence that was admitted
exclusively for another purpose may be admitted to
support that element, would be highly questionable
under the double jeopardy clause.
Thus, we are not persuaded by the concurring and
dissenting justice’s attempt to distinguish State v. Knox,
supra, 201 Conn. App. 457, on the ground that the trial
court in that case instructed the jury that it could not
use certain evidence that was admitted for a limited
purpose for any other purpose; id., 472; whereas, in the
present case, the trial court actually used the stipulation
to support its finding of guilt on count three. If evidence
was not admitted at trial, or if evidence was used for
a purpose other than the limited purpose for which it
was admitted, a reviewing court cannot consider the
evidence as part its insufficiency analysis, regardless
of whether the fact finder used it.
In reaching this conclusion, we recognize that, if a
trial court failed to instruct the jury that evidence that
has been admitted for a limited purpose can be used
only for that purpose, that would be the effective equiva-
lent of improperly admitting the evidence for any pur-
pose on which it is probative. In that case, a reviewing
court could consider the improperly admitted evidence
as part of its sufficiency analysis. In the present case,
however, we presume that the trial court knew that
evidence admitted for a limited purpose is not admitted
for a different purpose. See, e.g., State v. Reynolds, 264
Conn. 1, 29 n.21, 836 A.2d 224 (2003) (‘‘[j]udges are
presumed to know the law’’ (internal quotation marks
omitted)), cert. denied, 541 U.S. 908, 124 S. Ct. 1614,
158 L. Ed. 2d 254 (2004). The record also clearly estab-
lishes that the prosecutor presented the stipulation, and
the trial court admitted it, only for purposes of count
two. Thus, the fact that the court relied on the stipula-
tion for purposes of count three does not mean that it
improperly admitted the stipulation for that purpose
but, rather, that it improperly used the stipulation for
that purpose. Accordingly, we conclude that the evi-
dence was insufficient to support the defendant’s con-
viction of possessing a weapon in a vehicle in violation
of § 29-38 (a), and the defendant, therefore, must be
acquitted on that charge.
The judgment is reversed with respect to the defen-
dant’s conviction of possessing a weapon in a vehicle
in violation of § 29-38 (a) and the case is remanded to
the trial court with direction to render a judgment of
acquittal on that charge only and to resentence the
defendant on the remaining charges; the judgment is
affirmed in all other respects.
In this opinion McDONALD and ECKER, Js., concurred.
1
Hereinafter, all references to § 53a-217 in this opinion are to the 2017
revision of the statute.
2
Hereinafter, all references to § 29-38 in this opinion are to the 2017
revision of the statute.
3
General Statutes § 51-199 (b) provides in relevant part: ‘‘The following
matters shall be taken directly to the Supreme Court . . . (3) an appeal in
any criminal action involving a conviction for a . . . felony . . . for which
the maximum sentence which may be imposed exceeds twenty years . . . .’’
4
The right to confrontation guaranteed by the sixth amendment is made
applicable to the states through the due process clause of the fourteenth
amendment. See, e.g., Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065,
13 L. Ed. 2d 923 (1965).
5
The state also notes that it does not concede that an autopsy report
constitutes testimonial hearsay for confrontation clause purposes under
Crawford v. Washington, supra, 541 U.S. 36, but contends that we need not
address this issue if it prevails on either of its other claims. We agree.
6
Specifically, Gill testified:
‘‘[The Prosecutor]: And, showing you state’s [exhibit] 32, [a photograph
of the victim’s wound], doctor, there’s the picture of what we’ve just
described as stippling, and would this be what you called the stippling?
‘‘[Gill]: Correct. It extends on the neck and the chest.
‘‘[The Prosecutor]: And what would a sample of stippling of that size tell
you in [relation] to the injury?
‘‘[Gill]: Well, the presence of the stippling and/or fouling can you give you
an indication of the range of fire; how far the muzzle was from the target.
‘‘[The Prosecutor]: And would it indicate it was close for a stippling?
‘‘[Gill]: Yes. We would call this . . . a close range gunshot wound. When
you see both the stippling and that—that sootlike fouling material, we call
that close range, which means within about six inches or so from the
. . . target.’’
7
The defendant contends that ‘‘there is no support in the record for the
notion that Gill made his own independent findings regarding the photo-
graphs.’’ We disagree. The defendant does not claim that, as chief medical
examiner, Gill did not possess the personal knowledge and expertise to
interpret photographs of a gunshot wound, and our review of the transcript
of the trial court proceedings satisfies us that there simply was no other
basis for Gill’s testimony.
8
‘‘When an [evidentiary] impropriety is of constitutional proportions, the
state bears the burden of proving that the error was harmless beyond a
reasonable doubt. . . . [W]e must examine the impact of the evidence on
the trier of fact and the result of the trial. . . . If the evidence may have
had a tendency to influence the judgment of the jury, it cannot be considered
harmless. . . . That determination must be made in light of the entire record
[including the strength of the state’s case without the evidence admitted in
error]. . . . Whether the error was harmless depends on a number of fac-
tors, such as the importance of the evidence to the state’s case, whether
the evidence was cumulative of properly admitted evidence, the presence
or absence of corroborating evidence, and, of course, the overall strength
of the state’s case.’’ (Citation omitted; internal quotation marks omitted.)
State v. Culbreath, 340 Conn. 167, 191–92, 263 A.3d 350 (2021).
9
Defense counsel argued: ‘‘The seventh witness that I’m saying is not
something I think you’re [going to] debate much is . . . Gill. We agree that
a death was caused by [a] gunshot. The state has to put on proof of death,
or it wouldn’t be a murder or a homicide trial, so it’s necessary, but I don’t
find it particularly critical to your decision.’’
10
The following colloquy occurred between the prosecutor and Colon:
‘‘[The Prosecutor]: [I] [w]ant to clarify a few things. Let’s go to when
you’re standing over by the twenty-four hour store, and, at that point, when
you’re on the same side of the street as the store, which would be on the
right side of this picture.
‘‘[Colon]: Um-hum.
‘‘[The Prosecutor]: While you’re standing there . . . before you walk
across the street, do you know where the defendant was . . . ?
‘‘[Colon]: Believe on the same side as me.
‘‘[The Prosecutor]: Now, I’m asking if you—do you know exactly? Did
you remember where he was, or [are] you guessing where he was?
‘‘[Colon]: I’m just . . . guessing [because] that’s where everybody was—
went towards the store.
‘‘[The Prosecutor]: So, when you start walking across the street, do you
know where he was, or—or—
‘‘[Colon]: I just knew . . . I left everybody behind, and I just proceeded
to walk across the street.
‘‘[The Prosecutor]: And, as you’re walking across the street, is there any
point where you’re turning around to look if anybody’s following you?
‘‘[Colon]: No.
‘‘[The Prosecutor]: You say you’re—you went over to talk to [the victim],
who you knew, right?
‘‘[Colon]: Correct.
‘‘[The Prosecutor]: And, while you’re talking to her, are you looking around
to see where—at any point to see where the defendant or [Restrepo] are?
‘‘[Colon]: No. The only thing I looked at was to the left of me, [because]
I seen the—the cop cruiser coming down.
* * *
‘‘[The Prosecutor]: And, while you were talking to [the victim] at the car,
do you have any idea where the defendant is at that point?
‘‘[Colon]: I just knew everybody was behind me.
‘‘[The Prosecutor]: You knew they were behind you, but do you know
where he went?
‘‘[Colon]: No, I wasn’t looking behind me.’’
11
General Statutes (Rev. to 2017) § 29-38 (a) provides in relevant part:
‘‘Any person who knowingly has, in any vehicle owned, operated or occupied
by such person, any weapon, any pistol or revolver for which a proper
permit has not been issued as provided in section 29-28 or any machine
gun which has not been registered as required by section 53-202, shall be
guilty of a class D felony, and the presence of any such weapon, pistol or
revolver, or machine gun in any vehicle shall be prima facie evidence of a
violation of this section by the owner, operator and each occupant
thereof. . . .’’
12
General Statutes (Rev. to 2017) § 53a-217 (a) provides in relevant part:
‘‘A person is guilty of criminal possession of a firearm . . . when such
person possesses a firearm . . . and (1) has been convicted of (A) a felony
committed prior to, on or after October 1, 2013 . . . .’’
13
General Statutes § 29-30 provides in relevant part: ‘‘(b) A local permit
originally issued before October 1, 2001, whether for the sale at retail of
pistols and revolvers or for the carrying of pistols and revolvers, shall expire
five years after the date it becomes effective and each renewal of such
permit shall expire five years after the expiration date of the permit being
renewed. On and after October 1, 2001, no local permit for the carrying of
pistols and revolvers shall be renewed. . . .
‘‘(c) A state permit originally issued under the provisions of section 29-
28 for the carrying of pistols and revolvers shall expire five years after the
date such permit becomes effective and each renewal of such permit shall
expire five years after the expiration date of the state permit being renewed
and such renewal shall not be contingent on the renewal or issuance of a
local permit. A temporary state permit issued for the carrying of pistols and
revolvers shall expire sixty days after the date it becomes effective, and
may not be renewed. . . .’’
Although § 29-30 has been amended since the events underlying the pres-
ent case; see, e.g., Public Acts 2023, No. 23-73, § 1; Public Acts 2022, No.
22-102, § 5; those amendments have no bearing on the merits of this appeal.
In the interest of simplicity, we refer to the current revision of § 29-30.
14
The defendant concedes that he did not preserve this claim at trial and
seeks review under Golding. See, e.g., State v. Padua, 273 Conn. 138, 177
n.44, 869 A.2d 192 (2005) (‘‘any defendant found guilty on the basis of
insufficient evidence has been deprived of a constitutional right, and would
therefore necessarily meet the four prongs of Golding’’ (internal quotation
marks omitted)). The state makes no claim that the issue is unreviewable.
15
The following colloquy occurred at trial:
‘‘[The Prosecutor]: The state prepared, and both the state and defense
signed, a stipulation regarding the prior felony as it applies to the second
count that will go to the court, and we’d have—I guess I would prefer that
be a court exhibit. [T]his way, we know it won’t end up with the jury.
‘‘The Court: Yeah, but some court exhibits do go to the jury, so—
‘‘[Defense Counsel]: Well, it’s—this stipulation is limited to the court trial.
‘‘The Court: Stipulation is limited to count two, which is not being
submitted to the jury. Yeah, so—and that’s—do you have it? Has it been
filed yet?
‘‘[The Prosecutor]: I just—it’s on the clerk’s desk, Your Honor.
‘‘The Court: All right. And it’s signed by both counsel, I take it?
‘‘[The Prosecutor]: Yes.
‘‘[Defense Counsel]: Yes.
‘‘The Court: All right. So, that’ll be admitted as evidence . . . as to count
two, which is being submitted to the [court] only, and I think you may want
to put two stickers on, Madame Clerk. One marking it as a court [exhibit].
It’s going to be a full exhibit for purposes of the court trial . . . .’’ (Empha-
sis added.)
16
We note, in this regard, that § 53a-217 (a) provides in relevant part: ‘‘A
person is guilty of criminal possession of a firearm . . . when such person
possesses a firearm . . . and (1) has been convicted of (A) a felony commit-
ted prior to, on or after October 1, 2013 . . . .’’
Thus, a felony conviction is an element of the offense of criminal posses-
sion of a firearm, unlike the offense of possessing a weapon in a vehicle in
violation of § 29-38 (a), to which the existence of a felony conviction has
a far less obvious and direct connection. This might explain why the parties
chose to limit the use of the stipulation that the defendant had committed
two felonies to establishing the elements of § 53a-217 (a) (1) (A).
17
In light of this conclusion, we need not address the defendant’s claim
that the trial court improperly took judicial notice of §§ 29-28 (b) (2) (A)
and 29-30 (b) to support its finding that he violated § 29-38 (a) because the
state did not refer to the former two statutes during its presentation of
evidence. We take this opportunity, however, to caution the state that it
would have been the better practice to stipulate that the defendant did not
have a permit for the gun when the shooting occurred or to present direct
evidence to that effect, rather than to rely on the following chain of infer-
ences: (1) the defendant was convicted of felonies in 2006; (2) therefore,
he could not have obtained a proper permit for a gun thereafter under § 29-
28 (b) (2) (A); (3) therefore, any proper permit that he had would have
expired by 2017, when the shooting occurred, under § 29-30 (b); and (4)
therefore, he had no proper permit and violated § 29-38 (a). Although it
seems highly unlikely that the defendant could have had a proper permit
for the gun in 2017 under these circumstances, it is not entirely clear to us
that it was theoretically impossible for him to have possessed such a permit.
For example, the parties did not stipulate that the defendant had not received
pardons from the Board of Pardons and Parole for his 2006 felony convic-
tions.
18
We assume, without deciding, for purposes of this conclusion, that the
state is correct that the purpose for which the stipulation was introduced,
that is, whether it was introduced only for purposes of count two, or for
purposes of both count two and count three, as distinct from the substantive
meaning of the stipulation, is a question of fact subject to clearly errone-
ous review.
19
Justice Mullins, in his concurring and dissenting opinion, states that ‘‘it
is lost on [him] how, on direct appeal, this purported oversight is or should
somehow be treated differently from any other unpreserved evidentiary
claim.’’ As we explain subsequently in this opinion, the defendant has raised
an insufficiency claim, not, as Justice Mullins contends, an evidentiary claim.
As we previously explained, unpreserved insufficiency of the evidence claims
are reviewable under Golding. See footnote 14 of this opinion. Thus, the
fact that defense counsel’s failure to object to the trial court’s reliance on
evidence that had not been admitted during trial for that particular purpose
may have been the result of an oversight does not preclude review of the
defendant’s claim.
20
Hereinafter, we refer to Justice Mullins as the concurring and dis-
senting justice.
21
The state has made no such claim but implicitly concedes that, if the
stipulation was not admitted for purposes of count three, the evidence would
be insufficient to support the defendant’s conviction under that count.
22
The court in Kareski expressly distinguished evidence that was improp-
erly admitted at trial, which the reviewing court may consider when
determining the sufficiency of the evidence, and evidence that was not
admitted at trial but was nevertheless used by the trial court, which the
reviewing court cannot consider. State v. Kareski, supra, 137 Ohio St. 3d 98–
99.
23
The concurring and dissenting justice states that we have made ‘‘a
meaningless distinction between the admission of the stipulation into evi-
dence for count three and the trial court’s consideration of the stipulation
for purposes of count three. Such a distinction is irrelevant. Whether we
call it improper admission or improper use or consideration, the error is
an evidentiary or trial error, not unlike any other claim that a fact finder
considered evidence for one count that it should not have.’’ (Footnote omit-
ted.) The logical extension of this argument is that, whenever a trial court
has used information that was not admitted as evidence at trial to reach its
decision—for example, when a trial court conducts its own independent
investigation of the facts after the close of evidence—the information was,
for all intents and purposes, admitted as evidence, albeit improperly. Thus,
according to the concurring and dissenting justice, if the evidence presented
by the state was insufficient without the supplemental information obtained
by the trial court after the close of evidence, the remedy would be a remand
for a new trial, whereas, if the court had not conducted an improper investiga-
tion, the remedy would be an acquittal. We cannot agree with such an
untenable proposition. A factual investigation that is beyond the scope of
the trial court’s powers cannot convert the state’s failure to prove its case
into a trial error for double jeopardy purposes.
24
We agree, of course, with the concurring and dissenting justice that a
determination that the fact finder has improperly considered evidence that
was not admitted at trial for the purpose for which the fact finder used it
is subject to harmless error analysis. See, e.g., Access Agency, Inc. v. Second
Consolidated Blimpie Connecticut Realty, Inc., 174 Conn. App. 218, 229,
165 A.3d 174 (2017) (although trial court improperly considered evidence
for purpose for which it was not admitted, error was harmless because
other evidence was sufficient to support court’s factual finding); Stohlts v.
Gilkinson, 87 Conn. App. 634, 650, 867 A.2d 860 (‘‘error was harmless
because, even without [the evidence that was considered for a different
purpose than the limited purpose for which it was admitted], there was
sufficient evidence for the court to find for the plaintiffs’’), cert. denied, 273
Conn. 930, 873 A.2d 1000 (2005). Thus, in the present case, if there had been
evidence other than the stipulation that would have adequately supported
a finding that the defendant previously had been convicted of the two
felonies, the trial court’s use of the stipulation to support that finding would
have been harmless. This is because it is the state’s failure to prove its case
that bars retrial under the double jeopardy clause, not the fact finder’s
improper use of evidence for a purpose other than the one for which it was
admitted. It is lost on us why the concurring and dissenting justice believes
that these cases support his view that a reviewing court should consider
evidence that was improperly used for a purpose for which it was not
admitted in determining whether the evidence was sufficient and, if the
court concludes that the evidence was insufficient without the improperly
used evidence, should remand the case to the trial court for a new trial.
25
Presumably, the concurring and dissenting justice will respond to this
observation by agreeing that the trial court has no such power and arguing
that this is why the trial court’s admission of evidence, or its expansion of
the limited purpose for which evidence has been admitted, after the evidence
has closed, constitutes an improper evidentiary ruling. Unlike the issuance
of evidentiary rulings during trial, however, which is in the trial court’s
authority, even when the court improperly exercises that authority, the sua
sponte issuance of evidentiary rulings after the close of evidence is simply
beyond the trial court’s powers. At the very least, we have found no authority
to suggest otherwise.