State v. Robles ( 2023 )

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STATE v. ROBLES—SECOND CONCURRENCE AND DISSENT
MULLINS, J., concurring in part and dissenting in
part. I agree with part I of the majority opinion, but I
respectfully disagree with part II. As the United States
Supreme Court has explained, a trial court commits a
‘‘ ‘trial error’ ’’ when it ‘‘err[s] in admitting a particular
piece of evidence, and without it there was insufficient
evidence to support a judgment of conviction. But
clearly with that evidence, there was enough to support
the . . . [the finding or] verdict . . . .’’ (Emphasis
omitted.) Lockhart v. Nelson, 488 U.S. 33, 40, 109 S. Ct.
285, 102 L. Ed. 2d 265 (1988). Under those circum-
stances, double jeopardy does not bar retrial because
there is, in fact, sufficient evidence to support the find-
ing or verdict, but the defendant has been convicted in
a judicial process that was defective. See id., 34, 40–41.
Consistent therewith, a trial error is subject to harmless
error review, pursuant to which the reviewing court
assesses how the error affected the finding or verdict.
See, e.g., United States v. Quinn, 901 F.2d 522, 526,
528–29, 531 (6th Cir. 1990) (applying harmless error
review to claim that trial court improperly admitted
testimony of witness from suppression hearing but con-
sidering that same improperly admitted testimony in
sufficiency of evidence analysis).
On the other hand, in deciding a sufficiency of the
evidence claim, the reviewing court does not assess
how the error affected the finding or verdict but, rather,
considers all of the evidence that was considered by
the fact finder, both properly and improperly admitted
evidence, and determines whether there was sufficient
evidence to support the finding or verdict. See, e.g.,
State v. Gray, 200 Conn. 523, 538–40, 512 A.2d 217, cert.
denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373(1986). If the evidence was not sufficient, retrial is
barred by double jeopardy, and an acquittal is required.
See, e.g., id., 535–36. These two types of claims are
distinct. See, e.g., State v. Carey, 228 Conn. 487, 496, 636
A.2d 840 (1994) (‘‘[c]laims of evidentiary insufficiency
in criminal cases are always addressed independently
of claims of evidentiary error’’).
The majority’s resolution of this case is flawed because,
by failing to consider evidence that was expressly con-
sidered by the fact finder in arriving at its finding, it
merges these two distinct claims, only one of which
was raised by the defendant, Ulises Robles—the suffi-
ciency of the evidence. In considering that claim, this
court must review the same quantum of evidence that
the trial court reviewed and determine whether that
evidence was sufficient to support the trial court’s find-
ing. See, e.g., id. (‘‘appellate review of the sufficiency
of the evidence . . . properly includes [improperly
admitted] evidence even if such evidence was admitted
despite a purportedly valid objection’’ (citation omitted)).
Instead of addressing the defendant’s sufficiency claim
independently of evidentiary or trial error—which means
that we should consider the stipulation in our review of
the sufficiency of the evidence—the majority concludes
that the trial court improperly relied on the stipulation
for purposes of count three, which charged the defen-
dant with illegal possession of a weapon in a motor
vehicle, because the parties intended it to be admitted
only for the limited purpose of count two, which charged
the defendant with criminal possession of a firearm,
and that, without this stipulation, there was insufficient
evidence presented on count three. See part II of the
majority opinion. Accordingly, the majority reverses the
judgment of the trial court as to count three and remands
the case to the trial court with direction to render a
judgment of acquittal on that count. I disagree because,
in considering a sufficiency of the evidence claim, we
review all of the evidence the fact finder considered in
arriving at its finding or verdict. Doing so in this case
leads me to conclude that the stipulation that the defen-
dant was a convicted felon constituted sufficient evi-
dence to support the element of count three that he
did not possess a proper permit for a firearm. See, e.g.,
State v. Davis, 324 Conn. 782, 794–95, 801, 155 A.3d
221 (2017); see also General Statutes (Rev. to 2017)
§ 29-38 (a).1
I
In the present case, it is undisputed that the prosecu-
tor expressly relied on the stipulation for purposes of
count three in his closing argument without any objec-
tion from defense counsel, and the trial court expressly
considered it for purposes of count three as evidence
supporting its finding.2 Therefore, if the parties did intend
for the stipulation to be used only for purposes of count
two, and the trial court considered it beyond its limited
purpose, I would conclude that such an error is an
evidentiary or ‘‘ ‘trial error,’ ’’ as described by the United
States Supreme Court in Lockhart v. Nelson, supra, 488
U.S. 40. However, that claim is not before us.
The sufficiency claim that is before us requires that
we consider all of the evidence the trial court reviewed
in arriving at its finding. This is the way in which this
court has always addressed sufficiency of the evidence
claims. For example, in State v. Gray, supra, 200 Conn.
523, when addressing a sufficiency of the evidence
claim, this court considered the defendant’s statement
obtained in violation of Miranda v. Arizona, 384 U.S.
436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
which was improperly admitted. See State v. Gray,
supra, 534–36. This court concluded that the evidence,
including the improperly admitted statement, was suffi-
cient on some counts and not sufficient on others. Id.,537–38. However, because this court concluded that
the statement was improperly admitted, it remanded
the case for a new trial on those counts for which there
was sufficient evidence notwithstanding the evidentiary
error. See id., 538–39; see also id., 539 (‘‘[when] a rever-
sal of a conviction is not a result of insufficiency of
evidence but is predicated on, for example, as here, the
reception of inadmissible evidence . . . a remand for
a new trial is proper and an appellate court should not
review the remaining evidence to determine whether
it is sufficient to sustain the conviction’’).
Here, the trial court’s use of the stipulation beyond
its limited purpose is properly understood as a trial
error, which, if harmful, would result in a reversal of
the conviction and a new trial. This is consistent with
how similar claims have been treated in the past. For
instance, in State v. Heinz, 1 Conn. App. 540, 473 A.2d
1242, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984),
the Appellate Court addressed a claim that the jury had
improperly considered an exhibit for a purpose other
than the limited one for which it was admitted. See id.,545–47. The court explained that ‘‘[i]t is error to admit
an exhibit, particularly a key exhibit . . . for one pur-
pose and then to charge the jury that it may be consid-
ered for another purpose.’’ Id., 546–47. The Appellate
Court then considered the claim as an evidentiary claim
subject to harmless error analysis. See id., 547; see also
Access Agency, Inc. v. Second Consolidated Blimpie
Connecticut Realty, Inc., 174 Conn. App. 218, 229, 165
A.3d 174 (2017) (‘‘Evidence [that] is offered and admit-
ted for a limited purpose only, and the facts found from
such evidence, cannot be used for another and totally
different purpose. . . . It was improper for the [trial]
court to use the [disputed evidence] for substantive
purposes when it was admitted for the limited purpose
of testing [a witness’] credibility. Such error, however,
is subject to a harmless error analysis.’’ (Citation omit-
ted; emphasis added; internal quotation marks omit-
ted.)); Stohlts v. Gilkinson, 87 Conn. App. 634, 650, 867
A.2d 860 (applying harmless error analysis to claim that
trial court had considered evidence for purpose other
than limited one for which it was admitted), cert.
denied, 273 Conn. 930, 873 A.2d 1000 (2005).3
The United States Supreme Court has explained the
importance of respecting the distinction between trial
errors and sufficiency of the evidence claims. In Lock-
hart v. Nelson, supra, 488 U.S. 33, the court reasoned
that, in its previous decision, Burks v. United States,
437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), the
court ‘‘was careful to point out that a reversal based
solely on evidentiary insufficiency has fundamentally
different implications, for double jeopardy purposes,
than a reversal based on such ordinary ‘trial errors’ as
the ‘incorrect receipt or rejection of evidence.’ . . .
[Although] the former is in effect a finding ‘that the
government has failed to prove its case’ against the
defendant, the latter ‘implies nothing with respect to
the guilt or innocence of the defendant,’ but is simply
‘a determination that [he] has been convicted through a
judicial process [that] is defective in some fundamental
respect.’ ’’ (Citation omitted; emphasis omitted.) Lock-
hart v. Nelson, supra, 40, quoting Burks v. United States,
supra, 15.
On the basis of this distinction, the court further
explained that ‘‘[p]ermitting retrial [when there has been
a trial error] is not the sort of governmental oppression
at which the [d]ouble [j]eopardy [c]lause is aimed; rather,
it serves the interest of the defendant by affording him
an opportunity to ‘obtai[n] a fair readjudication of his
guilt free from error.’ ’’ Lockhart v. Nelson, supra, 488
U.S. 42, quoting Burks v. United States, supra, 437 U.S.
15. Accordingly, the United States Supreme Court in
Lockhart concluded that a new trial was the appropriate
remedy in a case in which the trier of fact had consid-
ered improper evidence in reaching its verdict, but in
which, without that evidence, there would have been
insufficient evidence to sustain the respondent’s convic-
tion. See Lockhart v. Nelson, supra, 34, 40–41.4
Courts in other jurisdictions have also remanded
cases for a new trial in which a trial court improperly
had admitted evidence, even when, without the improp-
erly admitted evidence, there would have been insuffi-
cient evidence to support the finding or verdict. For
instance, in State v. Gibson, 219 N.J. 227, 98 A.3d 519(2014), the New Jersey Supreme Court concluded that
the trial court erred by admitting video evidence and
the testimony of a police officer from the pretrial sup-
pression hearing, and that, ‘‘[w]ithout that evidence, the
[s]tate could not meet its burden of proof.’’ Id., 246.
Relying on Lockhart, the court concluded that, because
this improperly admitted evidence had been before the
fact finder, there was sufficient evidence. See id. The
court further concluded that a remand for a new trial
was the appropriate remedy and ‘‘emphasize[d] the
importance of distinguishing between those errors that
are procedural in nature, and those errors that affect
the sufficiency of the evidence. . . . [I]t would be a
high price indeed for society to pay were every [defen-
dant] granted immunity from punishment because of
any defect sufficient to constitute reversible error in the
proceedings leading to conviction.’’ (Internal quotation
marks omitted.) Id., 246–47.
In the present case, the majority asserts that, ‘‘[c]on-
trary to [my] contention [in this opinion], 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 pur-
pose 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.’’
(Emphasis in original.) Part II of the majority opinion.
Setting aside the fact that defense counsel did say that
the stipulation was for the court trial, which included
count three, it is undisputed that the stipulation was
admitted into evidence, that the state relied on it in
support of count three, and that the trial court consid-
ered the stipulation for purposes of count three. The
majority makes a meaningless distinction between the
admission of the stipulation into evidence for count
three and the trial court’s consideration of the stipula-
tion for purposes of count three.5 Such a distinction is
irrelevant. Whether we call it improper admission or
improper use or consideration, the error is an eviden-
tiary or trial error, not unlike any other claim that a
fact finder considered evidence for one count that it
should not have. Therefore, because the trial court con-
sidered the stipulation for count three without objec-
tion, we must also consider the stipulation in connec-
tion with this sufficiency of the evidence claim. As we
explained in the context of a jury trial in Riley v. Travel-
ers Home & Marine Ins. Co., 333 Conn. 60, 214 A.3d
345 (2019), ‘‘a court reviewing the sufficiency of the
evidence to support a jury’s verdict must consider all
of the evidence considered by the jury returning the
verdict . . . .’’ (Emphasis omitted.) Id., 64.
The majority relies on State v. Knox, 201 Conn. App.
457, 472–74, 242 A.3d 1039 (2020), cert. denied, 336
Conn. 905, 244 A.3d 146 (2021), and cert. denied, 336
Conn. 906, 243 A.3d 1180 (2021), in support of its posi-
tion that an acquittal due to evidentiary insufficiency
is required here. See part II of the majority opinion.
Knox, however, cannot support the weight the majority
places on it.
The majority provides the following explanation for
Knox: ‘‘[W]hen evidence was admitted exclusively for
purposes of one particular count, [the] jury could not
rely on [that] evidence to support [a] finding that [the]
state had established [an] element of crime charged in
another count . . . .’’ (Citations omitted.) Id.; see also
State v. Knox, supra, 201 Conn. App. 472. I have no
quarrel with that general proposition. It’s the other dis-
tinguishing features of Knox that make the comparison
between this case and that one problematic. For
instance, unlike in the present case, in Knox, it was
undisputed that the defendant’s prior felony conviction
was admitted for a limited purpose—namely, for the
criminal possession of a firearm charge and for no other
purpose. State v. Knox, supra, 464–65. Indeed, in Knox,
‘‘[w]hen the parties’ stipulation regarding the defen-
dant’s prior felony conviction was admitted into evi-
dence and read to the jury, the [trial] court limited its
use to the charge of criminal possession of a firearm.
The court repeated that limitation during its charge to
the jury. At no point did the [prosecutor] object to the
limited purpose for which the evidence of the defen-
dant’s prior felony conviction could be used.’’ Id., 472.
Therefore, the fact finder did not consider the felony
conviction for any other purpose, including the defen-
dant’s charge of tampering with physical evidence. See
id., 472–73.
Accordingly, because the fact finder was expressly
instructed not to consider the prior felony conviction
for any count other than the criminal possession of a
firearm charge, the Appellate Court concluded in Knox
that, on appeal, it could not consider the felony convic-
tion when determining whether there was sufficient
evidence to support the jury’s verdict on the tampering
with physical evidence charge. See id., 473–74. In other
words, the Appellate Court understood that the suffi-
ciency of the evidence claim had to be viewed in light
of the same evidence that the jury considered in decid-
ing the tampering charge. Therefore, I would conclude
that Knox is consistent with my position that, in resolv-
ing a sufficiency of the evidence claim, all evidence
considered by the fact finder is considered by the
reviewing court.
In the present case, the prosecutor argued that the
stipulation applied to count three during his closing
argument, the trial court expressly applied the stipula-
tion to count three in its decision, and defense counsel
at no point challenged the court’s consideration of the
stipulation for purposes of count three. Thus, unlike in
Knox, the record in the present case demonstrates that
the fact finder itself considered the stipulation for pur-
poses of count three. Therefore, unlike in Knox, in
which the fact finder did not consider the stipulation
and, accordingly, the reviewing court could not, in the
present case, the fact finder did consider the stipulation,
and this court should also do so.
I also disagree with the majority’s characterization
of defense counsel’s failure to object to the trial court’s
explicit reliance on the stipulation for purposes of count
three prior to, during, or after closing arguments as a
‘‘result of an oversight . . . .’’ Footnote 19 of the major-
ity opinion; see also part II of the majority opinion.
That characterization is remarkable.
First, the record on why defense counsel failed to
object is silent, and, therefore, I do not think we can
surmise counsel’s motive. Assessing counsel’s motives
on direct appeal without input from counsel is some-
thing we typically do not do. See, e.g., State v. Leecan,
198 Conn. 517, 541, 504 A.2d 480 (‘‘[t]he trial transcript
seldom discloses all of the considerations of strategy
that may have induced counsel to follow a particular
course of action’’), cert. denied, 476 U.S. 1184, 106 S.
Ct. 2922, 91 L. Ed. 2d 550 (1986). Normally, a hearing
would be required, such as a habeas proceeding or a
hearing on a petition for a new trial, at which counsel
can explain his or her reasons for not objecting to
certain evidence before we deem the absence of an
objection an oversight.
Second, the majority’s characterization of defense
counsel’s actions as an ‘‘oversight’’ suggests that coun-
sel was not competent and that the failure to object
was a mistake. The failure to object could just as easily
suggest that defense counsel did not view the stipula-
tion as limited to count two, given the fact that the
stipulation itself did not expressly provide that it was
limited to count two, the fact that defense counsel told
the trial court that the stipulation applied to the court
trial, and the fact that he did not include such a claim
in a motion for a judgment of acquittal following the
court trial. Of course, counsel is not required to object
to every impropriety during a trial. Indeed, in the habeas
context, when we review an attorney’s actions taken
during the criminal trial, we presume that his or her
actions were the result of sound trial strategy, unless
proven otherwise. See, e.g., Strickland v. Washington,
466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)
(petitioner ‘‘must overcome the presumption that, under
the circumstances, the challenged action might be con-
sidered sound trial strategy’’ (internal quotation marks
omitted)).
Finally, it is lost on me how, on direct appeal, this
purported oversight is or should somehow be treated
differently from any other unpreserved evidentiary claim.
Indeed, the majority excuses defense counsel’s failure
to object to the trial court’s express reliance on the
stipulation in a timely manner as ‘‘an oversight,’’ yet
concludes that the defendant is entitled to an acquittal
on count three because of the trial court’s use of the
stipulation. Part II of the majority opinion. The majority
runs afoul of our well established rule that parties must
preserve their claims for appeal, in the absence of very
limited circumstances, such as when a defendant is
entitled to have his claim reviewed under State v. Gold-
ing, 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), for constitutional claims or under the
plain error doctrine for obvious error that results in
manifest injustice. See, e.g., State v. Bermudez, 274
Conn. 581, 586, 876 A.2d 1162 (2005). See generally
Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 149–61, 84
A.3d 840 (2014) (discussing circumstances under which
reviewing court may consider party’s unpreserved claims).
Is there now an ‘‘oversight’’ exception for unpreserved
evidentiary claims? Rather than go down this new road
on which the majority is traveling with respect to evi-
dentiary claims raised in conjunction with, or masqu-
erading as, sufficiency claims, I would treat this eviden-
tiary claim like every other unpreserved evidentiary
claim and not review it. Therefore, I would conclude
that any evidentiary based claim that the trial court
improperly considered a stipulation beyond the purpose
for which it was admitted was not preserved and is not
before us. This appeal raises only a sufficiency claim,
which, as I explained, requires that we consider the
improperly considered evidence that was considered
by the fact finder.
Accordingly, I would conclude that our review of the
sufficiency claim must involve a review of all of the
evidence that the trial court considered, including the
stipulation, and the reasonable inferences drawable
therefrom.
II
Having concluded that the stipulation should be con-
sidered when reviewing the sufficiency of the evidence
claim, I now consider whether the evidence was suffi-
cient to support the defendant’s conviction of illegal
possession of a weapon in a motor vehicle.
The weapon in a motor vehicle statute, General Stat-
utes (Rev. to 2017) § 29-38, provides in relevant part:
‘‘(a) 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 per-
mit has not been issued as provided in section 29-28
. . . shall be guilty of a class D felony . . . .’’ The
defendant challenges the sufficiency of the evidence
with respect to the fourth element, namely, that he had
no proper permit. See, e.g., State v. Davis, supra, 324
Conn. 794–95, 801.
As this court previously has explained, ‘‘the lack of
a proper permit is an essential element of the crime
charged and . . . the state ha[s] the burden of proving
beyond a reasonable doubt that a proper permit for the
weapon had not been issued as provided in [General
Statutes] § 29-28.’’ State v. Beauton, 170 Conn. 234, 240,
365 A.2d 1105 (1976). General Statutes (Rev. to 2017)
§ 29-28,6 which is expressly referenced in § 29-38 (a),
provides in relevant part: ‘‘(b) . . . . No state or tem-
porary state permit to carry a pistol or revolver shall
be issued under this subsection if the applicant . . .
(2) has been convicted of (A) a felony . . . .’’ The evi-
dence here, through the stipulation, established that
the defendant had been convicted of two felonies in
2006, one of which was illegal possession of a weapon
in a motor vehicle.
Given that the parties stipulated that the defendant
had those two prior felony convictions, it was reason-
able for the trial court to infer that the defendant did
not possess a ‘‘proper permit . . . .’’ General Statutes
(Rev. to 2017) § 29-38 (a). Indeed, by operation of law,
the defendant could not possess a ‘‘proper permit . . .
as provided in section 29-28 . . . .’’ General Statutes
(Rev. to 2017) § 29-38 (a). In my view, the fact that the
defendant was a convicted felon was sufficient proof
beyond a reasonable doubt that he did not possess a
proper permit.
The state was not required to eliminate every theoreti-
cally possible scenario under which the defendant might
have had a permit despite being a convicted felon.
The state was required to prove that the defendant
did not possess a proper permit beyond a reasonable
doubt, not to a mathematical certainty, or beyond all
possible doubt. See, e.g., Connecticut Criminal Jury
Instructions 2.2-3, available at https://www.jud.ct.gov/
JI/Criminal/Criminal.pdf (last visited September 8,
2023) (‘‘[p]roof beyond a reasonable doubt does not
mean proof beyond all doubt . . . [as] the law does
not require absolute certainty on the part of the jury
before it returns a verdict of guilty’’). Certainly, the
state’s burden is not the ‘‘theoretically impossible’’ stan-
dard to which the majority now holds the state. (Empha-
sis in original.) Footnote 17 of the majority opinion.
Consistent therewith, it is important to keep in mind
that, in a sufficiency of the evidence appeal, ‘‘we do
not ask whether there is a reasonable view of the evi-
dence that would support a reasonable hypothesis of
innocence. We ask, instead, whether there is a reason-
able view of the evidence that supports the [trier of
fact’s finding or] verdict of guilty.’’ (Internal quotation
marks omitted.) State v. McMahon, 257 Conn. 544, 567,
778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S.
Ct. 1069, 151 L. Ed. 2d 972 (2002). Consequently, I would
conclude that the trial court correctly determined that
the state proved beyond a reasonable doubt that the
defendant had a weapon ‘‘for which a proper permit ha[d]
not been issued as provided in section 29-28 . . . .’’
(Emphasis added.) General Statutes (Rev. to 2017) § 29-
38 (a).7
With respect to the defendant’s contention that the
trial court improperly took judicial notice of § 29-28, I
disagree. In fact, the court was obligated to consider
the provisions of § 29-28 in determining whether the
defendant had violated § 29-38. Indeed, § 29-38 (a)
directs the court to look to and apply § 29-28. See Gen-
eral Statutes (Rev. to 2017) § 29-38 (a) (proscribing
having weapon in vehicle ‘‘for which a proper permit
has not been issued as provided in section 29-28’’).
Therefore, the trial court’s application of § 29-28 to
the facts of the present case was no more than the
court’s application of its knowledge of the law to the
case in the same way that a jury would have done once
it was instructed on the applicable law. See, e.g., State
v. Reynolds, 264 Conn. 1, 29 n.21, 836 A.2d 224 (2003)
(‘‘[i]n the absence of any evidence to the contrary,
[j]udges are presumed to know the law . . . and to
apply it correctly’’ (internal quotation marks omitted)),
cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed.
2d 254 (2004); see also, e.g., 23 C.J.S., Criminal Proce-
dure and Rights of Accused § 986 (2023) (‘‘[t]rial courts
and trial judges are presumed to know the law, and
their rulings come to [an] appellate court with a pre-
sumption of correctness’’ (footnotes omitted)); cf. State
v. Baltas, 311 Conn. 786, 810, 91 A.3d 384 (2014) (it is
well established that ‘‘[a] request to charge [that] is
relevant to the issues of [a] case and [that] is an accurate
statement of the law must be given’’ (internal quotation
marks omitted)). The trial court acted properly in its
role as fact finder by relying on its knowledge of the
law, namely, that the defendant, as a felon, was not
able to possess a proper permit for a weapon pursuant
to the provisions of § 29-28 at the time of the charged
crime. Therefore, I would conclude that there was suffi-
cient evidence to support the defendant’s conviction of
illegal possession of a weapon in a motor vehicle.
Accordingly, I respectfully dissent from part II of the
majority opinion.
1
All references to § 29-38 in this opinion are to the 2017 revision of
the statute.
2
I agree with the majority’s recitation of the facts but take this opportunity
to point out that the parties and the trial court appeared to treat the stipula-
tion as if it applied to count three. I acknowledge that, in relaying the
agreement of the parties to the court, the prosecutor initially stated that
the stipulation applies to count two. I also note, however, that defense
counsel told the trial court that the stipulation applies to the court trial.
The majority contends that the only way to read the parties’ statements is
that defense counsel was only following the state’s lead, and the real agree-
ment was that the stipulation was limited to count two. See part II of the
majority opinion. Another way to read defense counsel’s statement is that
he was clarifying or providing the full and accurate agreement of the parties
from his own perspective as a party to the agreement, which was that the
stipulation was limited to the court trial, as he said. Indeed, ultimately, when
the stipulation was admitted into evidence, the trial court stated, ‘‘[i]t’s going
to be a full exhibit for purposes of the court trial . . . .’’
The majority also discounts the trial court’s statement at the close of
evidence regarding the stipulation that it was ‘‘the only evidence that was
received solely for the second and third count’’; (emphasis added); as
‘‘imprecise’’ and defense counsel’s failure to object to the prosecutor’s and
the trial court’s reliance on the stipulation as an ‘‘oversight . . . .’’ Part II
of the majority opinion. I disagree. I would consider the prosecutor’s express
reliance on the stipulation for purposes of count three, the trial court’s
repeated references to and reliance on it, defense counsel’s statement that
the stipulation was for the court trial, and defense counsel’s failure to
object as strong evidence that the parties and the trial court understood
and intended for the stipulation to be admitted for purposes of the court
trial, which involved a determination of guilt as to counts two and three.
In the final analysis, at best, there is more ambiguity on this point than the
majority admits. Consequently, contrary to the majority, I would read any
ambiguity in the record surrounding the initial submission of the stipulation
into evidence and how that evidence ultimately was used to support the
trial court’s finding rather than in the strictest light possible to overturn
the finding.
3
The majority appears to acknowledge that a claim that a jury considered
improper evidence would be an evidentiary or trial error subject to harmless
error analysis but then states that the error here would be harmful because,
without the stipulation, there was insufficient evidence to support the trial
court’s finding on count three. See footnote 24 of the majority opinion; see
also part II of the majority opinion. That entirely misses the point. Harmless
error analysis is not used in analyzing a sufficiency of the evidence claim.
See, e.g., United States v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 88 L. Ed.
2d 814 (1986) (harmless error inquiry does not focus on sufficiency of
evidence); Kotteakos v. United States, 328 U.S. 750, 765, 66 S. Ct. 1239, 90
L. Ed. 1557 (1946) (distinguishing between harmless error analysis and
sufficiency of evidence analysis and holding that ‘‘[a harmless error] inquiry
cannot be merely whether there was enough to support the result, apart
from the phase affected by the error’’). The application of harmless error
in these cases demonstrates that the claim was deemed an evidentiary or
trial error, not a sufficiency of the evidence claim. Moreover, if the error
is determined to be harmful, the remedy in those cases is not acquittal but,
rather, a new trial.
In addition, the majority attempts to distinguish the cases in which this
court and others have treated a claim that a jury considered evidence for
an improper purpose as an evidentiary or trial error on the ground that the
present case is different because the trial court was the fact finder. I disagree
that the fact that the trial court was the fact finder in this case somehow
transforms a claim of an evidentiary or trial error into a sufficiency of the
evidence claim. That is not consistent with this court’s position in State v.
Taupier, 330 Conn. 149, 193 A.3d 1 (2018), cert. denied, U.S. , 139
S. Ct. 1188, 203 L. Ed. 2d 202 (2019), in which this court explained that a
claim that a trial court improperly considered certain evidence when acting
as the fact finder was an evidentiary claim, even though the defendant
attempted to cast it as a sufficiency of the evidence claim. See id., 180–81.
4
The majority does not even mention Lockhart and, instead, places great
emphasis on State v. Kareski, 137 Ohio St. 3d 92, 98, 998 N.E.2d 410 (2013),
from the Supreme Court of Ohio. See part II of the majority opinion. I would
agree with the dissent in that case that the majority’s holding in Kareski is
‘‘a departure from settled [double jeopardy] principles recognized by the
United States Supreme Court . . . [and that, by] equating a reversal for
evidentiary trial error with an acquittal for constitutionally insufficient evi-
dence, the majority’s holding runs headlong into a thicket of state and
federal constitutional problems and will undoubtedly cause uncertainty and
confusion for appellate courts.’’ State v. Kareski, supra, 100 (French, J.,
dissenting).
5
The majority asserts that ‘‘[t]he 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. . . . We cannot agree with such an untenable
proposition.’’ Footnote 23 of the majority opinion. The majority’s attempt
to recast my position is itself untenable. My position is that, in our review
of a sufficiency of the evidence claim, there is no meaningful distinction
between evidence that was improperly admitted and evidence that was
admitted but considered by the fact finder beyond the purpose for which
it was admitted. For purposes of a sufficiency of the evidence claim, a
reviewing court must consider the full quantum of evidence considered by
the trial court, even if some of the evidence was improperly considered.
That is not to say that a fact finder’s improper consideration of facts not
in evidence cannot be addressed. For instance, in State v. Newsome, 238
Conn. 588, 682 A.2d 972 (1996), this court considered a claim that the
defendant’s right to a fair trial had been violated because one of the jurors
allegedly drove past the crime scene to investigate. See id., 626. In consider-
ing that claim, this court explained that ‘‘not every incident of juror miscon-
duct requires a new trial’’; id., 627; and that ‘‘[t]he question is whether . . .
the misconduct has prejudiced the defendant to the extent that he has not
received a fair trial.’’ (Internal quotation marks omitted.) Id., 628. This court
explained that, ‘‘in cases [in which] the trial court is directly implicated in
juror misconduct, the state bears the burden of proving that [the] misconduct
was harmless error.’’ (Internal quotation marks omitted.) Id. A trial court
conducting its own investigation is simply a different type of error. I am in
no way suggesting that this error cannot be addressed. Instead, I would
follow the lead of the United States Supreme Court and conclude that such
an error would be a trial error because the defendant ‘‘has been convicted
through a judicial process [that] is defective in some fundamental respect.’’
(Emphasis omitted; internal quotation marks omitted.) Lockhart v. Nelson,
supra, 488 U.S. 40.
6
Hereinafter, all references to § 29-28 in this opinion are to the 2017
revision of the statute.
7
My conclusion that affirmance is the appropriate outcome here does not
mean that I disagree with the majority’s reflection that the best practices
were not followed in this case. The stipulation could have been explicit as
to the purpose for which it was to be used, and the prosecutor could have
made his reliance on the stipulation for count three more transparent during
the course of the trial, rather than after the close of evidence.