State v. Franklin ( 2015 )

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STATE OF CONNECTICUT v. ZACKERY C. FRANKLIN
(AC 37161)
Gruendel, Lavine and Bishop, Js.
Argued September 25—officially released December 29, 2015
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
G. Douglas Nash, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Kevin C. Doyle, former senior
assistant state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Zackery C. Franklin,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of murder in violation of Gen-
eral Statutes § 53a-54a (a), one count of felony murder
in violation of General Statutes § 53a-54c, and one count
of robbery or attempt to commit robbery in the first
degree in violation of General Statutes §§ 53a-49 (a) (2)
and 53a-134 (a) (1). The defendant also appeals from
the judgment of conviction rendered after a trial to the
court of one count of carrying a pistol without a permit
in violation of General Statutes § 29-35, and one count
of criminal possession of a pistol or revolver in violation
of General Statutes (Rev. to 2011) § 53a-217c (a) (1).
On appeal, the defendant claims that (1) the evidence
was insufficient to support the judgment of conviction
on all counts because the state relied on a single eyewit-
ness whose testimony was contradicted by the physical
evidence; (2) the verdicts were against the weight of
the physical evidence, entitling him to a new trial; (3)
the court erred in admitting prior misconduct evidence
to show that he possessed the means to commit the
crimes; (4) the prosecutor engaged in impropriety dur-
ing closing argument; (5) the court erred in merging
the convictions for murder and felony murder; and (6)
the judgment file must be corrected because the convic-
tion for ‘‘robbery or attempted robbery’’ encompassed
a unanimous finding on the lesser offense of attempt
but not the greater completed offense of robbery. We
reverse the judgment of the court as to the felony mur-
der conviction. We affirm the judgment in all other
respects.
The defendant’s convictions arise from the murder
of John Claude James (victim). On July 9, 2011, the
victim was in the area of Howard Avenue and Putnam
Street in New Haven. At approximately 6 p.m., firefight-
ers responded to a call that someone had been shot;
they found the victim on the sidewalk adjacent to the
entrance to the parking lot behind 518–526 Howard
Avenue. The victim had been shot three times and he
died shortly after being taken to the hospital.
The jury reasonably could have found the following
facts. The defendant had a motive to kill the victim so
that he could obtain the victim’s gold chain, holding a
joker medallion.1 The victim was wearing this chain on
July 9, 2011. Two witnesses, Carol Boxley and Charles
Caple, stated individually to police that on or about
July 9, 2011, they overheard the defendant discussing
gold jewelry, including the victim’s joker chain. Boxley
told police that the defendant said ‘‘we’re going to get
the joker chain ’cause gold is high now.’’ Caple told
police that on the day the victim was shot, the defendant
may have said that he was ‘‘gonna get’’ the victim.
Boxley and her family lived at 536 Howard Avenue.
Her daughter, Renicka (Nicky) Boxley, had a relation-
ship with the defendant and was pregnant with his
child. Boxley’s son, Antonio Lofton, Jr., witnessed the
victim’s shooting.
At approximately 5:30 p.m. on July 9, 2011, Dorothy
Council was on the back porch of 530 Howard Avenue
when the victim stopped by to greet her. The victim
left soon after and approximately fifteen minutes later,
Council heard gunshots and ran inside 530 Howard
Avenue. Looking through a window, Council saw the
victim run across the parking lot toward Putnam Street,
lose his balance, spin around, and fall down at the
entrance of the parking lot to 518–526 Howard Avenue.
At this time, Lofton was in his backyard at 536 How-
ard Avenue, from where he could see across Putnam
Street and into the parking lot of 518–526 Howard Ave-
nue. Lofton saw the defendant shoot the victim in the
chest. The defendant fired ‘‘three or more’’ or ‘‘maybe
four or five shots’’ while the victim was facing him.
Lofton saw the defendant, with a ‘‘silvery handgun’’ in
his hand, and his friend, Earl Simpson, run from the
back of Putnam Street toward the front of his house.
He did not see anything in Simpson’s hands. Lofton was
able to identify the defendant because he had known
him for about a year. He had known the victim for
longer, and was able to identify him as well.
Lofton went into his house using a rear entrance and
saw the defendant in his kitchen. Both Simpson and
the defendant offered Lofton marijuana and money,
which Lofton did not accept. The defendant and Simp-
son ran out of the apartment toward Carlisle Street and
got into a waiting black car.
At this time, Caple was in the area and heard the
gunshots. He saw a black Acura, which he thought
belonged to Isis Hargrove, drive by on Carlisle Street.
Hargrove was Simpson’s sister and Caple was familiar
with her. He knew that she had been involved with the
defendant, and had seen her previously driving a black
Acura in the area. Police later confirmed that she had a
black Acura registered in her name. The police gathered
evidence from the area, including several of the victim’s
belongings, in the front part of the alcove between 518
and 522 Howard Avenue. The police found the victim’s
unbroken joker chain on the ground. Although the vic-
tim had a cell phone with him that afternoon, the police
recovered only the leather cell phone case that the
victim was known to wear on his belt. The police found
six nine millimeter shell casings in the alcove, as well
as blood-like substances near the alcove and on the
sidewalk near the entrance to the parking lot where
the victim was found.
On July 11, 2011, the police spoke with Hargrove
about the shooting. On the night of July 12, 2011, the
defendant and Hargrove, along with Simpson and his
girlfriend Mikia Gary, rented a car and drove to North
Carolina. On the way, the car was stopped for speeding
in New Jersey. The state trooper asked for the occu-
pants’ identifications, and the defendant gave his broth-
er’s name. In the following weeks, the defendant was
not seen in the area of Howard Avenue and Putnam
Street, although he regularly spent time there prior to
the shooting.
On November 16, 2011, the defendant was arrested
in Virginia. When the deputy making the arrest asked
the defendant for identification, he gave a YMCA card
with his photograph on it but with a name other than
his own. At trial, the state asserted that the defendant’s
use of false names and his flight from the state were
indicative of his consciousness of guilt.
The defendant was brought back to Connecticut and
charged with five offenses. The charges of murder, fel-
ony murder, and robbery or attempt to commit robbery
in the first degree were tried to a jury, which returned
a verdict of guilty on all three charges. The charges of
carrying a pistol without a permit and criminal posses-
sion of a pistol or revolver were tried to the court,
which found him guilty. The court merged the murder
and felony murder convictions and imposed a sentence
of sixty years imprisonment on the murder charge and
twenty years on the robbery or attempted robbery
charge to be served concurrently. The court imposed
a sentence of five years on the conviction of carrying
a pistol without a permit to be served concurrently,
and five years on the conviction of criminal possession
of a pistol or revolver to be served consecutively. The
total effective sentence was sixty-five years. The defen-
dant appeals from this judgment. Additional facts will
be set forth as necessary.
I
SUFFICIENCY OF THE EVIDENCE
We first consider the defendant’s claim that the evi-
dence was insufficient for the jury and court to return
verdicts of guilty as to all five counts. The defendant’s
argument is twofold. First, he argues that the jury could
not rely on Lofton’s testimony because it was ‘‘physi-
cally impossible’’ for it to be true. Second, he argues
that without Lofton’s testimony, the remaining circum-
stantial evidence was insufficient to prove that the
defendant was guilty of any of the offenses charged.
We disagree.
A
We begin with the defendant’s claim that it was physi-
cally impossible for Lofton’s testimony to be true. The
defendant’s claim is not actually one of physical impos-
sibility, but rather is a challenge to Lofton’s credibility
and an argument that the jury could draw only one
inference about where the shooting occurred based on
the location of the expended shell casings. Prior to
analyzing the sufficiency of the evidence claim, we
explain why the defendant’s physical impossibility
claim fails.
The defendant’s physical impossibility claim turns
entirely on where the shooting occurred. The following
additional facts are relevant to this issue. Lofton was
the only eyewitness to the shooting and at the time he
testified, he was twenty years old and testifying pursu-
ant to a subpoena. The building at 518–526 Howard
Avenue is an apartment building, and in between each
unit on the ground floor are recessed alcoves. Each
alcove is about twenty feet deep and ten feet wide, and
is enclosed on three sides by the walls of the building.
Police found the victim’s belongings and the expended
nine millimeter shells in the alcove between apartment
518 and 522. Lofton said that he could not see into this
alcove, but was able to see if people exited from it. The
defendant asserts that the location of the expended
shells conclusively proves that the shooting took place
in this alcove, into which Lofton could not see.
The state called two witnesses with firearms experi-
ence, who testified as to where the six shells were
found and their relation to where the shots were fired.
One witness, Detective Omaida Nieves, testified that
where the six shells and blood were found in the alcove
did not prove that the shots were fired from that loca-
tion. James Stephenson, a firearms expert from the
state forensic science laboratory, testified that it was
impossible to determine the ejection pattern of a fire-
arm without knowing several variables, such as the type
of firearm and the position of the shooter’s hand upon
firing. He refused to speculate as to where the shots
were fired from based upon the location of the six
shell casings.
The defendant asserts that the ‘‘[the experts’ testi-
mony] established that the only shots fired occurred in
the alcove, not in the parking lot driveway area as
claimed by Lofton. The shots were fired from a place
that Lofton concededly could not see into.’’ A review
of Nieves’ and Stephenson’s testimony reveals that the
defendant bases his claim not on facts in the record,
but on his own conclusory assertions about the infer-
ences that should be drawn from where the shells were
found. The defendant relies principally upon State v.
Hammond, 221 Conn. 264, 276–78, 604 A.2d 793 (1992),
in which the defendant prevailed on his claim of physi-
cal impossibility because the DNA and blood type evi-
dence conclusively established that the defendant could
not have committed the crime. In the present case,
however, it is entirely possible that the victim was run-
ning away from the alcove when he was shot and that
the defendant was standing in a place where Lofton
could see him. Thus, whether Lofton saw the defendant
shoot the victim is a matter of credibility, not impossi-
bility.
‘‘[B]ecause the jury has the opportunity to observe
the conduct, demeanor and attitude of the witnesses
and to gauge their credibility, [i]t is axiomatic that evi-
dentiary inconsistencies are for the jury to resolve, and
it is within the province of the jury to believe all or
only part of a witness’ testimony.’’ (Internal quotation
marks omitted.) State v. Morgan, 274 Conn. 790, 800,
877 A.2d 739 (2005). After concluding that the physical
evidence did not preclude Lofton from having seen the
shooting, ‘‘[o]n appeal we cannot revisit the jury’s deci-
sion to believe the witness.’’2 State v. Robinson, 125
Conn. App. 484, 489, 8 A.3d 1120 (2010), cert. denied,
300 Conn. 911, 12 A.3d 1006 (2011). Thus, the defen-
dant’s claim that Lofton’s testimony should have been
rejected based on physical impossibility fails.
B
We next turn to the sufficiency of the evidence,
including Lofton’s testimony, as to each of the defen-
dant’s convictions. ‘‘The standard of review employed
in a sufficiency of the evidence claim is well settled.
[W]e apply a two part test. First, we construe the evi-
dence in the light most favorable to sustaining the ver-
dict. Second, we determine whether upon the facts so
construed and the inferences reasonably drawn there-
from the [finder of fact] reasonably could have con-
cluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt. . . . In
evaluating evidence, the [finder] of fact is not required
to accept as dispositive those inferences that are consis-
tent with the defendant’s innocence. . . . The [finder
of fact] may draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical. . . . On appeal, we do not
ask whether there is a reasonable view of the evidence
that would support a reasonable hypothesis of inno-
cence. We ask, instead, whether there is a reasonable
view of the evidence that supports the [finder of fact’s]
verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Mendez, 154 Conn. App. 271, 275–76, 105 A.3d
917 (2014).
First, the defendant’s challenge to the murder convic-
tion fails because Lofton’s testimony and the circum-
stantial evidence were sufficient to establish the
defendant’s guilt. ‘‘To establish a violation of § 53a-54a,
the crime of murder, the state must prove beyond a
reasonable doubt that the defendant, with intent to
cause the death of another person . . . cause[d] the
death of such person . . . . [T]he specific intent to kill
is an essential element of the crime of murder. To act
intentionally, the defendant must have had the con-
scious objective to cause the death of the victim. . . .
Intent is a question of fact, the determination of which
should stand unless the conclusion drawn by the trier
is an unreasonable one.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Lisboa, 148 Conn. App.
769, 775, 85 A.3d 1244 (2014).
Lofton’s testimony alone was sufficient for the jury
to find the defendant guilty of murder as it reasonably
allowed the jury to infer that the defendant had commit-
ted all of the elements of the crime. Lofton testified
that the defendant shot the victim three times, causing
the victim’s death. The jury reasonably could have
inferred from Lofton’s description of the events that
the defendant intended to shoot the victim. See id., 776
(‘‘it is a permissible . . . inference that [the] defendant
intended the natural consequences of his voluntary con-
duct’’ [internal quotation marks omitted]). It also does
not matter that Lofton was the sole witness to the shoot-
ing. ‘‘The credited testimony of even a single witness
may be sufficient to sustain a defendant’s conviction.’’
(Internal quotation marks omitted.) State v. Prosper,
160 Conn. App. 61, 73, A.3d (2015); see also State
v. Whitaker, 215 Conn. 739, 757 n.18, 578 A.2d 1031(1990). The jury also had circumstantial evidence of
the defendant’s motive and consciousness of guilt to
consider along with the eyewitness testimony.
The defendant’s challenges to the sufficiency of the
circumstantial evidence regarding his motive, con-
sciousness of guilt, and possession of means to commit
the crime also fail. The defendant argues that the evi-
dence of Simpson’s and his fleeing the scene after the
crime and leaving the state days later; his offer of money
and marijuana to Lofton; Boxley and Caple’s testimony
regarding his motive; and, evidence that he possessed
a gun in the area of the shooting less than one month
before it occurred, are ‘‘separately or together’’ insuffi-
cient to support the convictions of guilty beyond a rea-
sonable doubt. While perhaps each ‘‘separately’’ might
be insufficient, we disagree that ‘‘together’’ they do not
support the jury’s verdicts, especially when considered
with Lofton’s eyewitness testimony that the defendant
shot the victim.
At trial, the state claimed that the defendant’s flight
from Connecticut and use of false names was indicative
of his consciousness of guilt. The jury reasonably could
infer the defendant’s consciousness of guilt from these
circumstances. See State v. Silva, 113 Conn. App. 488,
497–98, 966 A.2d 798 (2009) (jury can infer conscious-
ness of guilt from defendant’s flight); State v. Martinez,
95 Conn. App. 162, 189, 896 A.2d 109 (jury can infer
consciousness of guilt from use of alias), cert. denied,
279 Conn. 902, 901 A.2d 1224 (2006). The jury also
reasonably could have inferred from the circumstances
that the defendant’s offer of marijuana and money to
Lofton was to persuade him not to tell the police about
the shooting.
In regard to the testimony about the defendant’s
motive, he makes similar challenges to the credibility
of Boxley and Caple that he made to Lofton. At trial,
both initially testified that they did not remember mak-
ing statements to the police relating to the defendant’s
motive. The jury had all of the evidence and testimony
in its deliberations that the defendant now uses on
appeal in his challenges to the witnesses’ credibility.
We again note we will not question the jury’s credibility
determinations and the conclusions it reached in resolv-
ing apparent inconsistencies in the testimony.
The testimony that the defendant possessed a gun in
the area weeks prior to the shooting was admitted to
show that he possessed the means to commit the crime,
and the jury reasonably could have considered it in
determining the defendant’s guilt.3
Second, the defendant’s challenge to the conviction
of carrying a pistol without a permit fails because the
evidence was sufficient for the court to find the defen-
dant guilty beyond a reasonable doubt. Section 29-35
(a) provides in relevant part that: ‘‘No person shall carry
any pistol or revolver upon his or her person, except
when such person is within the dwelling house or place
of business of such person, without a permit to carry
the same issued as provided in section 29-28. . . .’’
‘‘Accordingly, the required elements of § 29-35 (a) are
that the defendant: (1) carried a pistol, (2) for which
he lacked a permit, (3) while outside his dwelling house
or place of business.’’ (Internal quotation marks omit-
ted.) State v. Davis, 156 Conn. App. 175, 182, 111 A.3d
567 (2015). At trial, the parties stipulated that the defen-
dant did not have a permit to carry a firearm. Stephen-
son testified that the murder weapon was a nine
millimeter semiautomatic handgun, and the court rea-
sonably could infer from Lofton’s eyewitness testimony
that the defendant possessed a pistol outside his dwell-
ing or place of business.
Third, in regard to the conviction of criminal posses-
sion of a pistol or revolver, General Statutes (Rev. to
2011) § 53a-217c, provided in relevant part: ‘‘A person
is guilty of criminal possession of a pistol or revolver
when such person possesses a pistol or revolver . . .
and (1) has been convicted of a felony . . . .’’ The
parties stipulated at trial that as of July 9, 2011, the
defendant was a convicted felon. This stipulation and
Lofton’s eyewitness testimony were sufficient for the
court to find the defendant guilty of this count.
Fourth, the defendant claims that there was insuffi-
cient evidence to find him guilty of robbery or armed
robbery in the first degree and, accordingly, of felony
murder. The defendant concedes that the victim’s pos-
sessions found in the alcove and the fact that his cell
phone was missing, considered with the wounds that
the victim suffered, allow for the inference that a rob-
bery and murder occurred. Nonetheless, the defendant
contends that the evidence was insufficient to convict
him of robbery or attempted robbery because ‘‘none of
this implicated the [him] . . . . No fingerprints, DNA
or any evidence identifying [him] as the robber-shooter
was produced.’’
Section 53a-134 (a) provides in relevant part: ‘‘A per-
son is guilty of robbery in the first degree when, in the
course of the commission of the crime of robbery . . .
he or another participant in the crime: (1) Causes seri-
ous physical injury to any person who is not a partici-
pant in the crime . . . .’’ Section 53a-49 (a) provides
in relevant part: ‘‘A person is guilty of an attempt to
commit a crime if, acting with the kind of mental state
required for commission of the crime, he . . . (2) inten-
tionally does or omits to do anything which, under the
circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course of
conduct planned to culminate in his commission of
the crime.’’
The defendant’s argument fails because it overlooks
that ‘‘[r]obbery may be proven by circumstantial evi-
dence and the inferences drawn therefrom.’’ State v.
Mullings, 202 Conn. 1, 11, 519 A.2d 58 (1987). At trial,
the jury heard testimony from the victim’s mother that
her son always wore his gold chain because it had
sentimental value to him, as well as testimony from her
and other witnesses that the victim had his cell phone
the day of the shooting and that it was never found.
The victim’s chain was found intact near the alcove,
and the jury reasonably could have drawn the inference
proposed by the state in closing argument that the vic-
tim would not have removed it because of its sentimen-
tal value unless he had been threatened to do so. The
jury also could have reasonably inferred that the vic-
tim’s cell phone was taken, as it was never recovered.
These inferences must be considered in light of the
testimony that Lofton saw the defendant shoot the vic-
tim in the vicinity of where the victim’s belongings were
recovered. In construing the evidence in the light most
favorable to sustaining the verdict, we determine that
the jury reasonably could have concluded that the
cumulative force of the evidence established the defen-
dant’s guilt beyond a reasonable doubt as to the count
of robbery or attempted robbery, which served as the
basis for the defendant’s felony murder conviction.
Mindful that in determining the sufficiency of the
evidence we consider its cumulative effect, and constru-
ing the evidence in the light most favorable to sustaining
the verdict, we determine that the jury reasonably could
have concluded that the evidence established the defen-
dant’s guilt beyond a reasonable doubt on the counts
of murder, felony murder, and robbery, and that the
court could have done the same on the counts of posses-
sion of a pistol without a permit, and criminal posses-
sion of a pistol or revolver.
II
VERDICTS AGAINST WEIGHT OF THE EVIDENCE/
NEW TRIAL REMEDY
The defendant claims that he is entitled to a new
trial, arguing that the verdicts were against the weight
of the physical evidence. We note that the defendant
did not preserve this issue by moving for a new trial
pursuant to Practice Book § 42-53, nor does he claim
that he is entitled to a new trial based on newly discov-
ered evidence under the framework of Practice Book
§ 42-55. The defendant seeks review of this claim under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989). However, the defendant’s claims regarding the
physical evidence are substantively identical to the
claims we considered in part I of this opinion. Further-
more, the defendant concedes in his brief that this claim
turns on whether we discredit Lofton’s testimony, as
he stated ‘‘should this court agree with the defendant
that Lofton’s testimony must be rejected but find never-
theless that other evidence was sufficient to prove guilt,
the defendant claims that the verdicts should be set
aside and the lesser relief, which is to order a new trial,
is required.’’ As we concluded in part I of this opinion,
we are aware of no reason that prohibited the jury
from crediting Lofton’s testimony. For this reason, this
claim fails.4
III
PRIOR MISCONDUCT EVIDENCE
The defendant next claims that the trial court abused
its discretion by admitting evidence that he had pre-
viously displayed a gun to prove that he possessed the
means to commit the crimes. He argues that the trial
court erred for three reasons: (1) the witness’ descrip-
tion of the gun she saw was different from that of the
murder weapon, (2) the purported misconduct was too
remote in time, and (3) the prejudice outweighed the
probative value. We disagree.
The following additional facts are relevant to this
claim. The defendant filed a pretrial motion to compel
the state to provide notice of its intention to use evi-
dence of his prior misconduct. The state apprised the
defendant of its intention to offer the testimony of a
‘‘female friend of the defendant’s girlfriend’’ describing
a confrontation during which the defendant displayed a
gun. The female friend was Caprie Ford, Nicky Boxley’s
cousin. At trial, the state made an offer of proof outside
the presence of the jury. Ford saw the defendant with
Hargrove at the circus in Milford on June 14 or 15,
2011,5 and when she later saw him in the Putnam Street
area she confronted him about his having been with a
woman other than Nicky Boxley. The defendant walked
away from Ford, but returned minutes later pointing at
her what ‘‘looked like a little gun’’ and threatened to
shoot her. Ford could see only a portion of the barrel
because the defendant covered the rest of it with his
sleeve, but stated that she was sure it was a real gun.
When cross-examined, Ford testified that she could tell
what the defendant displayed was not a toy gun because
it was metal, but she was not sure of whether the
weapon was a revolver or a semiautomatic pistol. She
testified that all that she saw was the ‘‘small,’’ ‘‘skinny’’
‘‘nozzle of the gun’’ and a part of the barrel.
The state offered this testimony pursuant to § 4-5 (b)
of the Connecticut Code of Evidence to show that the
defendant possessed the means to commit the crimes
charged. Defense counsel argued that the court should
preclude Ford’s testimony because there was no show-
ing that what she saw was the murder weapon, that
the incident was too remote in time to the shooting of
the victim, and that there was not an adequate showing
that what Ford saw was even a gun. The court noted
that under State v. Rosario, 99 Conn. App. 92, 104, 912
A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d 276(2007), there is no requirement that evidence of a means
to commit the crime must involve the actual weapon
used in the crime. The court determined that the evi-
dence was admissible, and that its probative value out-
weighed its prejudicial effect. It stated it would give a
limiting instruction after its admission. The jury then
heard Ford testify about the incident, including the
defendant’s having threatened to shoot her with the
gun. She described the gun in the same manner. The
court then gave a limiting instruction.
The standard of review regarding uncharged miscon-
duct evidence is well established. ‘‘Evidence of a defen-
dant’s uncharged misconduct is inadmissible to prove
that the defendant committed the charged crime or to
show the predisposition of the defendant to commit
the charged crime. . . . Exceptions to this rule have
been recognized, however, to render misconduct evi-
dence admissible if, for example, the evidence is offered
to prove intent, identity, malice, motive, a system of
criminal activity or the elements of a crime. . . . To
determine whether evidence of prior misconduct falls
within an exception to the general rule prohibiting its
admission, we have adopted a two-pronged analysis.
. . . First, the evidence must be relevant and material
to at least one of the circumstances encompassed by
the exceptions. Second, the probative value of such
evidence must outweigh the prejudicial effect of the
other crime evidence. . . . Since the admission of
uncharged misconduct evidence is a decision within
the discretion of the trial court, we will draw every
reasonable presumption in favor of the trial court’s
ruling. . . . We will reverse a trial court’s decision only
when it has abused its discretion or an injustice has
occurred.’’ (Internal quotation marks omitted.) State v.
Pena, 301 Conn. 669, 673–74, 22 A.3d 611 (2011).
‘‘Evidence indicating that an accused possessed an
article with which the particular crime charged may
have been accomplished is generally relevant to show
that the accused had the means to commit the crime.’’
(Internal quotation marks omitted.) State v. Green, 62
Conn. App. 217, 240, 774 A.2d 157 (2001), aff’d, 261
Conn. 653, 804 A.2d 810 (2002). ‘‘The state does not
have to connect a weapon directly to the defendant and
the crime. It is necessary only that the weapon be
suitable for the commission of the offense. . . . State
v. Sivri, 46 Conn. App. 578, 584, 700 A.2d 96, cert.
denied, 243 Conn. 938, 702 A.2d 644 (1997).’’ (Emphasis
added; internal quotation marks omitted.) State v. Pena,
supra, 301 Conn. 675.
First, we are not persuaded by the defendant’s argu-
ment that the court could not conclude that what Ford
saw in the defendant’s possession was a gun based on
her description. Ford stated that she saw a ‘‘real gun’’
and a ‘‘metal barrel,’’ and the court also noted that
defense counsel would have the opportunity to cross-
examine her. The trial court had a sufficient factual
basis to allow the admission of this testimony, and its
decision was not an abuse of discretion.
The defendant argues that Ford’s description of the
gun was not sufficiently similar to type used to shoot
the victim. He highlights that in State v. Sivri, supra,
46 Conn. App. 585, the victim’s wounds were caused
by a large caliber gun, and the evidence offered that
the defendant had the means to commit the crime were
large caliber weapons. He points out that in State v.
Pena, supra, 301 Conn. 675, the connection between
the murder weapon and the means to commit the crime
evidence was more similar, as both weapons were
described as ‘‘black pistols.’’ The defendant’s conclu-
sion is that in the present case ‘‘there are no such
similarities here where the barrel [that Ford described]
was shown to be very different from the murder
weapon.’’
Much of the defendant’s effort to distinguish the pre-
sent case is premised on the defendant’s speculation
that Ford only possibly could have seen a revolver, not
a pistol. Stephenson determined that the gun used to
kill the victim was a nine millimeter semiautomatic
pistol. Comparing Ford’s description of the weapon she
saw in the defendant’s possession with the testimony
and evidence regarding the murder weapon, we con-
clude that the trial court did not abuse its discretion
in determining that it was relevant to show that the
defendant possessed the means to commit the crime.
The jury reasonably could have inferred from Ford’s
testimony that she saw a handgun, and at that time, the
defendant possessed a weapon suitable for the commis-
sion of the offense charged.
The defendant’s challenge to the relevance of the
confrontation between the defendant and Ford as too
remote in time also fails. There is no bright line govern-
ing when a defendant’s possession of the means to
commit the crime is too remote to be relevant. ‘‘In Sivri,
we held that the evidence that the defendant was in
possession of guns and ammunition three days after
the disappearance of the victim permitted the jury to
infer that the defendant had possessed the guns three
days earlier.’’ State v. Stevenson, 53 Conn. App. 551,
572, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d
990 (1999). In Stevenson, the victim was shot with a nine
millimeter handgun, and testimony that the defendant
possessed handguns a couple of weeks later was admis-
sible to show that the defendant possessed the means
to commit the crime. Id., 571–72. In Pena, the murder
weapon was a black pistol, and our Supreme Court
concluded that the trial court did not abuse its discre-
tion in admitting testimony that the defendant had
access to a black pistol approximately three months
before shooting the victim. State v. Pena, supra, 301
Conn. 675–76. In the present case, the confrontation
with Ford occurred approximately three weeks before
the shooting, which was not too remote in time to be
relevant.
We next examine whether the prejudicial effect of the
admission of Ford’s testimony outweighed its probative
value. ‘‘[E]vidence may be excluded by the trial court
if the court determines that the prejudicial effect of the
evidence outweighs its probative value. . . . Of
course, [a]ll adverse evidence is damaging to one’s case,
but it is inadmissible only if it creates undue prejudice
so that it threatens an injustice were it to be admitted.
. . . The test for determining whether evidence is
unduly prejudicial is not whether it is damaging to the
defendant but whether it will improperly arouse the
emotions of the jury.’’ (Internal quotation marks omit-
ted.) State v. Rosario, supra, 99 Conn. App. 104.
We conclude that the court properly balanced the
probative value of the evidence of the defendant’s prior
possession of a firearm sufficient to commit the charged
crimes against its prejudice to the defendant. Further-
more, the court gave a limiting instruction explaining
to the jury the limited purpose for which it could use
Ford’s testimony. See State v. Sivri, supra, 46 Conn.
App. 583. The defendant asserts that unfair prejudice
resulted from the jury being allowed to hear that Ford
saw the gun in the context of the defendant’s threaten-
ing to shoot her. While the court in Pena concluded
that one reason admission of the defendant’s prior pos-
session of a gun was not unduly prejudicial was because
‘‘[t]he testimony did not establish that the defendant
previously had harmed or threatened any person, acted
violently, or otherwise call into question the defendant’s
character’’; State v. Pena, supra, 311 Conn. 676; we note
that the defendant in the present case did not seek to
limit Ford’s testimony. He did not raise this issue in
the state’s offer of proof, nor did he object when Ford
testified to the entire incident in front of the jury. We
thus conclude that the court did not abuse its discretion
in admitting Ford’s testimony regarding the defendant’s
possession of the means to commit the crime.6
IV
PROSECUTORIAL IMPROPRIETY
The defendant next claims that he is entitled to a
new trial due to prosecutorial impropriety. Specifically,
the defendant claims that the prosecutor in closing argu-
ments (1) misstated Council’s testimony regarding her
observation of the victim falling down, (2) misstated
the testimony of the medical examiner, (3) misstated
Boxley’s testimony regarding the defendant’s motive to
take the victim’s gold chain, and (4) argued that the
prior misconduct evidence showed motive when its
only admissible purpose was to show possession of the
means to commit the crime. The defendant did not
object during closing argument, nor did he seek a cura-
tive instruction on any of the alleged improprieties.
The applicable law governing claims of prosecutorial
impropriety is well established. ‘‘[I]n analyzing claims
of prosecutorial [impropriety], we engage in a two step
process. The two steps are separate and distinct: (1)
whether [an impropriety] occurred in the first instance;
and (2) whether that [impropriety] deprived [the] defen-
dant of his due process right to a fair trial. Put differ-
ently, [an impropriety is an impropriety], regardless of
its ultimate effect on the fairness of the trial; whether
that [impropriety] caused or contributed to a due pro-
cess violation is a separate and distinct question . . . .’’
(Internal quotation marks omitted.) State v. Andrews,
313 Conn. 266, 279, 96 A.3d 1199 (2014).
The defendant’s first claim of impropriety involves
the prosecutor’s summation of Council’s testimony in
his closing rebuttal argument. Council testified that,
after she heard gunshots, she saw the victim run, spin
around, and fall down where emergency medical per-
sonnel found him. The prosecutor stated ‘‘you heard
about Miss Council saying what she saw and she claims
she was good friends with [the victim] and saw him
running and get shot and turn and landed on his back.’’
The defendant argues that the prosecutor engaged in
impropriety because Council did not testify that she
actually saw the victim get shot. We disagree.
‘‘We long have held that a prosecutor may not com-
ment on evidence that is not a part of the record and
may not comment unfairly on the evidence in the
record.’’ State v. Fauci, 282 Conn. 23, 49, 917 A.2d 978(2007). However, the prosecutor ‘‘may argue the state’s
case forcefully, [provided the argument is] fair and
based upon the facts in evidence and the reasonable
inferences to be drawn therefrom.’’ (Internal quotation
marks omitted.) State v. Luster, 279 Conn. 414, 429,
902 A.2d 636 (2006). Furthermore, ‘‘[c]ounsel must be
allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument.’’ (Internal quotation marks omitted.) Id., 428.
‘‘While a prosecutor is not permitted to interject his
own opinion generally, he must be permitted to speak
to the cumulative evidence he has put forth during the
course of trial. . . . Likewise, [w]e must give the jury
the credit of being able to differentiate between argu-
ment on the evidence and attempts to persuade them
to draw inferences in the state’s favor, on one hand,
and improper unsworn testimony, with the suggestion
of secret knowledge, on the other hand. The state’s
attorney should not be put in the rhetorical straight-
jacket of always using the passive voice, or continually
emphasizing that he is simply saying I submit to you that
this is what the evidence shows, or the like.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Ivan G.S., 154 Conn. App. 246, 255–56, 105 A.3d 905(2014), cert. denied, 315 Conn. 923, 108 A.3d 1123(2015).
In the circumstances here, we find that the prosecu-
tor was merely arguing the inferences that the jury
reasonably could draw in considering the cumulative
evidence. The defendant relies on State v. Fauci, supra,282 Conn. 49, in which the prosecutor in rebuttal argu-
ment definitively asserted the identity of a ‘‘mystery
woman’’ that one of the defendant’s witnesses refused
to identify, although there was no evidence in the record
that supported the prosecutor’s assertion. Id., 49–50. In
the present case, the prosecutor did not propose an
unreasonable or unfair inference, nor did he make an
assertion that was unsupported by the record. Council
testified that she saw the victim fall down at the location
where emergency medical personnel treated the victim
for gunshot wounds. The jury reasonably could infer
from the circumstances when Council testified that she
saw the victim fall, she actually saw the moment when
he got shot.
Second, the defendant’s claim that the prosecutor
improperly misstated the medical examiner’s testimony
also fails. The defendant’s theory of the case was that
the shooting occurred in the alcove, out of Lofton’s
view, and the victim then ran while injured and fell at
the spot where the firefighters found him. Evangelista
gave testimony that supported the theory that the defen-
dant could have moved after being shot, stating, ‘‘there’s
no such injury such as like a spinal cord, or a brain
injury where it would make a person unable to move
or walk, so in my opinion, yes, he could ambulate or
walk or run for some time.’’ However, Evangelista also
stated ‘‘if he didn’t [move] it wouldn’t surprise me
either.’’ In regards to the wounds, he could not deter-
mine the sequence of the three gunshots, but stated
that the wound to the back and through the chest was
the fatal one, as it perforated the apex of the victim’s
heart.
In rebuttal argument, the prosecutor stated:
‘‘[R]emember something else that Dr. Evangelista told
you. That was the fatal wound. It perforated the apex
of his heart and this would have likely brought him
down quickly . . . . If he got shot in the alcove and
all these shots happened in the alcove how did he make
it that far? He wouldn’t have run that far with that type
of wound. It had to happen after he got out of the
alcove, and therefore Mr. Lofton told you that from
here he could see . . . people coming out of the alcove
area. . . . He made it out of there and that’s why Mr.
Lofton was able to see this defendant and see [the
victim].’’
The defendant’s argument is essentially that because
the medical expert testified that the victim could have
moved after being shot, that the only logical inference
that the prosecutor could propose and the jury could
draw is that the victim did move. This overlooks Evan-
gelista’s testimony that he would not have been sur-
prised if the victim fell immediately after being shot.
The proposed inferences were not unfair or unreason-
able, and this portion of the prosecutor’s rebuttal argu-
ment was not improper.
Third, the defendant claims that the prosecutor
engaged in impropriety by summarizing Boxley’s and
Caple’s testimony regarding the defendant’s motive,
arguing that their testimony could be used only for
impeachment purposes. We disagree.
The following additional facts are relevant to this
claim. Both Boxley and Caple initially testified that they
did not remember giving statements to police regarding
the defendant’s motive to steal the victim’s chain, and
the prosecutor eventually presented them with portions
of their statements. During the state’s direct examina-
tion of both witnesses, the jury heard their statements
regarding the defendant’s motive.
The defendant’s argument is that both Boxley’s and
Caple’s prior statements were not substantively admis-
sible evidence and could be used only for impeachment
purposes. However, the defendant did not seek to limit
the grounds of admissibility, nor did he preserve these
claims. It is well established that ‘‘[a]n appellate court
shall not be bound to consider a claim unless it was
distinctly raised at the trial or arose subsequent to the
trial.’’ (Internal quotation marks omitted.) State v. Cro-
mety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert.
denied, 284 Conn. 912, 931 A.2d 932 (2007). ‘‘[A] defen-
dant may not transform an unpreserved evidentiary
claim into one of prosecutorial impropriety to obtain
review of that claim.’’ Id. Because the defendant did
not seek to limit the scope of their testimony, it was
not improper for the prosecutor in closing argument to
invite the jury to draw substantive inferences of the
defendant’s motive from their statements. See State v.
Rowe, 279 Conn. 139, 152, 900 A.2d 1276 (2006)
(‘‘[a]rguing on the basis of evidence explicitly admitted
cannot constitute prosecutorial [impropriety]’’).
The defendant’s final claim is that the prosecutor
engaged in impropriety by arguing that the evidence of
the defendant’s possession of the means to commit the
crime also demonstrated the defendant’s character and
propensity to commit the crimes. The state concedes
that the prosecutor’s statements on this subject in his
initial and rebuttal closing arguments were improper.7
However, we conclude that these comments did not
deprive the defendant of a fair trial.
‘‘Our Supreme Court has indicated that the determi-
nation of whether any improper conduct by the [prose-
cutor] violated the defendant’s fair trial rights is
predicated on the factors set forth in State v. Williams,
[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due
consideration of whether that [impropriety] was
objected to at trial. . . . These factors include [1] the
extent to which the [impropriety] was invited by
defense conduct or argument, [2] the severity of the
[impropriety], [3] the frequency of the [impropriety],
[4] the centrality of the [impropriety] to the critical
issues in the case, [5] the strength of the curative mea-
sures adopted, and [6] the strength of the state’s case.’’
(Internal quotation marks omitted.) State v. James E.,
154 Conn. App. 795, 816–17, 112 A.3d 791 (2015).
The defendant did not invite the impropriety, as the
prosecutor made the improper remarks in both his ini-
tial and rebuttal closing argument. See State v. Alexan-
der, 254 Conn. 290, 308, 755 A.2d 868 (2000). The
improprieties were not frequent, as the prosecutor
made the improper remarks about Ford’s testimony in
relatively brief instances, once each in his initial and
rebuttal closing arguments. The remarks also were not
severe, as ‘‘we consider it highly significant that defense
counsel failed to object to any of the improper remarks
[or] request curative instructions . . . . Defense coun-
sel, therefore, presumably [did] not view the alleged
impropriety as prejudicial enough to seriously jeopar-
dize the defendant’s right to a fair trial.’’ (Internal quota-
tion marks omitted.) State v. Thompson, 266 Conn. 440,
479, 832 A.2d 626 (2003).
The central issue in this case was the identity of the
shooter. The defendant asserts that the inference could
have affected the jury’s determination that the defen-
dant was the shooter. Even if that were true, the jury
had the far more probative testimony of Lofton to con-
sider in determining whether the defendant was the
shooter, as well as testimony relating to the defendant’s
motive and circumstantial evidence of the defendant’s
consciousness of guilt. We are not persuaded that the
jury would have reached a different conclusion about
the shooter’s identity had it not heard the brief
improper remarks.
Although the trial court did not give specific curative
instructions, ‘‘[w]e note in this regard . . . that the
defendant, by failing to bring them to the attention of
the trial court, bears much of the responsibility for the
fact that these claimed improprieties went uncured. We
emphasize the responsibility of defense counsel, at the
very least, to object to perceived prosecutorial impro-
prieties as they occur at trial, and we continue to adhere
to the well established maxim that defense counsel’s
failure to object to the prosecutor’s argument when it
was made suggests that defense counsel did not believe
that it was unfair in light of the record of the case at
the time.’’ (Internal quotation marks omitted.) Id., 483.
The trial court gave the general instruction to the jury
not to consider the arguments of counsel as evidence.
‘‘In the absence of a showing that the jury failed or
declined to follow the court’s instructions, we presume
that it heeded them.’’ (Internal quotation marks omit-
ted.) Id., 485.
Finally, the state’s case against the defendant was
relatively strong. ‘‘The state’s evidence does not need
to be overwhelming to support a conclusion that prose-
cutorial impropriety did not deprive the defendant of
a fair trial.’’ State v. Felix, 111 Conn. App. 801, 816, 961
A.2d 458 (2008). Putting aside any potential influence of
the improper remarks, the jury had Lofton’s eyewitness
testimony, as well as circumstantial evidence of the
defendant’s consciousness of guilt and the testimony
of two witnesses regarding the defendant’s motive. On
the basis of our analysis of the Williams factors, we
conclude that the improper remarks did not deprive
the defendant of a fair trial.
V
VACATUR OF FELONY MURDER CONVICTION
The defendant claims that the trial court erred in
merging his convictions for murder and felony murder.
The state concedes that State v. Miranda, 317 Conn.
741, 751, 120 A.3d 490 (2015), which was pending in
our Supreme Court when this appeal was filed, controls
this issue. Pursuant to Miranda, we reverse the judg-
ment in part and remand the case to the trial court with
the direction to vacate the defendant’s felony murder
conviction.
VI
CORRECTION OF THE JUDGMENT FILE
The defendant’s final claim is that the judgment file
must be corrected because the trial court deprived him
of his right to a unanimous verdict in instructing jurors
that on the charge of robbery or attempted robbery the
jury did not have to be unanimous as to which theory
it found the defendant guilty, as long as it was unani-
mous as to one of them. We disagree.
State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984),
is instructive on this claim. In Jones, the indictment
stated that under the felony murder statute ‘‘the defen-
dant did commit or attempt to commit a robbery and
in the course of and in furtherance of such crime or
flight therefrom he, or another participant, caused the
death of a person . . . .’’ (Emphasis in original; internal
quotation marks omitted.) Id., 75. This did not violate
the defendant’s right to a unanimous verdict because
‘‘[w]hile some jurors might have believed that the defen-
dant attempted the robbery but did not complete it,
and others might have believed that he did, in fact,
complete the crime, none could have believed that the
defendant completed the robbery without first under-
taking a substantial step toward achieving its object.
The unanimous verdict of guilty thus necessarily
encompassed a unanimous finding that the defendant
had at least attempted to commit robbery.’’ Id., 76–77.
That analysis is directly applicable to the present case.8
Furthermore, the defendant has not demonstrated
what relief he would receive through a correction of
the judgment file. The defendant was charged with a
single count of ‘‘robbery or attempted robbery in the
first degree’’ in violation of §§ 53a-49 (a) (2) and 53a-
134 (a) (1). Both theories could serve as the predicate
felony for the conviction of felony murder. See General
Statutes § 53a-54c. General Statutes § 53a-51 states that
except for class A felonies, attempt is a crime ‘‘of the
same grade and degree as the most serious offense
which is attempted.’’ Section 53a-134 states that robbery
in the first degree is a class B felony, thus making
attempt to commit robbery in the first degree a class
B felony. The defendant faced the same punishment
under either theory. See State v. Holliday, 118 Conn.
App. 35, 42, 982 A.2d 268 (2009) (‘‘[t]he legislature
clearly intended attempt . . . to commit a class B fel-
ony to be punished the same as a class B felony or it
would have noted otherwise, as it did with class A
felonies’’), cert. denied, 295 Conn. 909, 989 A.2d 605(2010). For this reason, this claim fails.
The judgment is reversed in part and the case is
remanded with direction to vacate the felony murder
conviction; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
The joker medallion, dangling from the chain, depicts a court jester with
hands and legs extended.
2
The defendant challenges Lofton’s credibility, asserting that his testi-
mony was inconsistent in some instances with his initial statement to police.
Cross-examination revealed that police had some concerns that Lofton’s
initial statements were not completely consistent with the other evidence
that they found, but Lofton stated multiple times on the witness stand that
he was sure he saw the defendant shoot the victim.
Regarding the details of the shooting, Lofton testified that he saw the
victim get shot in the chest, while the medical examiner, Frank Evangelista,
forensic pathologist, testified that the fatal shot entered through the victim’s
back. However, Lofton stated his conclusion that the victim was shot in the
chest was based on seeing blood in the chest area of the defendant’s shirt.
The defendant contends that Lofton’s testimony was contradicted by
Council, who stated that she saw the victim running from the direction of
the alcove, spin, and then fall at the area where he was eventually found
in the parking lot. Lofton stated that the defendant was stationary at the
time he was shot. Defense counsel had the opportunity to cross-examine
Lofton on all of these issues. On appeal, we will not second-guess the jury’s
decision about which witnesses it chose to believe, nor its conclusions in
resolving apparent inconsistencies in the evidence and testimony.
3
The defendant challenges the admissibility of this testimony, which we
consider in part III of this opinion. He argues specifically that the witness
who testified that she saw the defendant’s prior possession of a gun did
not describe a gun that was sufficiently similar to the weapon the defendant
allegedly used to shoot the victim.
4
We decline the defendant’s additional request to order a new trial through
the use of our supervisory authority.
5
The parties stipulated at trial that the Coleman Brothers Circus took
place at the Milford Post Mall on June 14 and 15, 2011.
6
Even if we were to conclude that the court abused its discretion and
improperly admitted Ford’s testimony concerning the defendant’s prior pos-
session of the handgun, we would conclude, nevertheless, that it was harm-
less error. ‘‘[W]hether [the improper admission of a witness’ testimony] is
harmless in a particular case depends upon a number of factors, [including]
. . . the overall strength of the prosecution’s case. . . . Most importantly,
we must examine the impact of the [improperly admitted] evidence on the
trier of fact and the result of the trial.’’ (Internal quotation marks omitted.)
State v. Rosario, supra, 99 Conn. App. 105–106 n.9. Contrary to the defen-
dant’s assertions, we find that the state’s case was relatively strong. Putting
aside Ford’s testimony, the state presented Lofton’s eyewitness testimony
that he saw the defendant shoot the victim. This was coupled with Boxley’s
and Caple’s testimony regarding the defendant’s motive, as well as circum-
stantial evidence of the defendant’s consciousness of guilt.
7
In his initial closing argument, the prosecutor stated: ‘‘Within just weeks
before Mr. James is shot and killed in that area this defendant has access
to a firearm. Not only is it important that he had access to the firearm but
remember what Miss Ford said, they had an argument in the street over
something relatively stupid and she says the defendant walked away. . . .
So that means he walked and came back and within five minutes what did
he have? He had the knob of a gun at the end of his sleeve pointing it within
two feet of Miss Ford . . . .’’
In his rebuttal argument the prosecutor stated ‘‘it’s important to think
about motive and means because if a few weeks before Mr. James got shot
this defendant is willing to pull a gun and threaten to shoot Caprie Ford in
the same area where this happened. What can you tell about that? Over
something as dumb as an argument about a girl. And remember, he was
only gone for five minutes. Does that show he had a gun in that area? What
can you infer from that?’’
We agree that the prosecutor in his closing arguments improperly used
Ford’s testimony to propose inferences regarding the defendant’s character
and propensity to commit the crimes.
8
The defendant relies on State v. Gould, 241 Conn. 1, 23–24, 695 A.2d
1022 (1997), which is inapplicable because unlike in the present case, the
defendant in Gould was convicted of robbery and attempted robbery alleged
as separate counts, and sentenced to separate concurrent sentences. Our
Supreme Court held that the attempted robbery conviction, as a lesser
included offense, had to be merged with the robbery conviction.