State v. Solomon ( 2014 )

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STATE OF CONNECTICUT v. HANIF SOLOMON
(AC 34843)
Lavine, Bear and Keller, Js.*
Argued January 14—officially released May 27, 2014
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Auden Grogins, assigned counsel, for the appellant
(defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Hanif Solomon, appeals
from the judgment of conviction, rendered after a trial
to the court,1 on the charge of criminal possession of
a firearm in violation of General Statutes § 53a-217c.
On appeal, the defendant claims that (1) the court
improperly admitted uncharged misconduct evidence
and (2) the court was collaterally estopped from finding
him guilty of criminal possession of a firearm. We dis-
agree and affirm the judgment of the court.
The trial court found the following facts relevant
to this appeal. On evening of August 28, 2010, Robert
Johnson was riding his bicycle on a street in Hartford
when he noticed a person emerge from the shadows.
From a distance of forty feet, Johnson observed the
glint of a silver revolver before the person opened fire
in his direction.
Johnson pedaled hurriedly in an attempt to evade
the shooter, and although successful in dodging his
assailant’s bullets, he fell from his bicycle to the pave-
ment. As the shooter drew closer, Johnson recognized
him to be the defendant. Johnson observed that the
defendant carried ‘‘a chrome, or nickel plated’’ .38 cali-
ber revolver.2 The defendant stood over Johnson, who
pleaded for his life. No additional bullets were fired.
The defendant told Johnson to ‘‘get the fuck out of
here,’’ and warned him not to report the incident to
the police.
The defendant was charged in a four count informa-
tion with attempt to commit murder in violation of
General Statutes §§ 53a-54a and 53a-49 (a) (2), attempt
to commit assault in the first degree in violation of
General Statutes §§ 53a-59 (a) (5) and 53a-49 (a) (2),
carrying a revolver without a permit in violation of
General Statutes § 29-35, and criminal possession of a
firearm in violation of § 53a-217c. The defendant
pleaded not guilty to all four counts and elected a jury
trial. Shortly before trial, however, the defendant
waived his right to a jury trial on the criminal possession
of a firearm count, and elected to have that count
decided by the trial court.
At trial, the jury and the trial court heard all of the
evidence and arguments concurrently, with the excep-
tion of the defendant’s prior felonies, which were rele-
vant only to the criminal possession of a firearm count
and thus were heard solely by the trial court outside
the presence of the jury. On March 7, 2012, the jury
found the defendant not guilty of the charges before it,
but the court found the defendant guilty of criminal
possession of a firearm.3 The court sentenced the defen-
dant to a term of five years incarceration, execution
suspended after three years, followed by five years pro-
bation.
On appeal, the defendant claims the trial court (1)
improperly admitted uncharged misconduct evidence4
and (2) was collaterally estopped from finding him
guilty of criminal possession of a firearm because the
jury found him not guilty of carrying a revolver without
a permit.
I
The defendant first claims that the court abused its
discretion by admitting into evidence (1) a revolver
recovered two months after the shooting, (2) testimony
that this revolver was recovered during an unrelated
domestic disturbance, and (3) evidence that the defen-
dant pleaded guilty to possessing this revolver following
the domestic disturbance.5 The defendant contends that
the evidence was not relevant, and that if relevant,
its prejudicial effect outweighed its probative value.
We disagree.
‘‘[O]ur standard of review regarding challenges to a
trial court’s evidentiary rulings is that these rulings will
be overturned on appeal only where there was an abuse
of discretion and a showing by the defendant of substan-
tial prejudice or injustice. . . . In reviewing claims that
the trial court abused its discretion, great weight is
given to the trial court’s decision and every reasonable
presumption is given in favor of its correctness. . . .
We will reverse the trial court’s ruling only if it could
not reasonably conclude as it did.’’ (Internal quotation
marks omitted.) State v. Hart, 118 Conn. App. 763, 786,
986 A.2d 1058, cert. denied, 295 Conn. 908, 989 A.2d
604 (2010).
Although evidence of a defendant’s wrongs and bad
acts is inadmissible to prove bad character or criminal
propensity, ‘‘[e]vidence of other crimes, wrongs or acts
of a person is admissible for purposes . . . such as
to prove intent, identity, malice [and] motive . . . .’’
(Emphasis added.) Conn. Code Evid. § 4-5 (b). To be
admissible, evidence of prior misconduct must be rele-
vant and the probative value of the evidence must out-
weigh its prejudicial impact. See State v. Cutler, 293
Conn. 303, 311–12, 977 A.2d 209 (2009).
‘‘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 evi-
dence is unduly prejudicial is not whether it is damaging
to the defendant but whether it will improperly arouse
the emotions of the [fact finder]. . . . The trial court
. . . must determine whether the adverse impact of the
challenged evidence outweighs its probative value. . . .
[B]ecause of the difficulties inherent in this balancing
process . . . every reasonable presumption should be
given in favor of the trial court’s ruling. . . . Reversal
is required only [when] an abuse of discretion is mani-
fest or [when] injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. Johnson,
289 Conn. 437, 463, 958 A.2d 713 (2008).
A
The defendant first claims that the court abused its
discretion by admitting a revolver into evidence in the
absence of proof linking the firearm to the charged
offense. The defendant argues that the revolver was
not relevant to the criminal possession of a firearm
charge and that admitting it into evidence was unduly
prejudicial. The state argues that the revolver is both
relevant and highly probative as to the defendant’s iden-
tity and access to the means to commit the charged
offense.
The following additional facts are necessary to the
resolution of this issue. Approximately two months
after the shooting, on November 23, 2010, the Hartford
police responded to a domestic disturbance at 575
Farmington Avenue, an apartment building where
Towanna Williams lived. Williams called 911 following
a verbal quarrel with the defendant; she reported to the
police that she was scared because the defendant had
a gun. On direct examination, Williams testified that on
November 23, 2010, she allowed the police into her
apartment and consented to a search that led to the
discovery of a revolver the defendant kept at her resi-
dence. The revolver was marked as an exhibit for identi-
fication over the defendant’s objection.6 Williams
testified that she recognized the gun and previously had
seen the defendant carrying it. Williams also provided
a written statement to the police in which she stated
that the defendant has a silver gun ‘‘that he takes every-
where he goes.’’ The revolver later was introduced as a
full exhibit following the testimony of the police officers
who recovered it from Williams’ apartment.
On the basis of our review of the record, we conclude
that the court did not abuse its discretion when it admit-
ted the revolver into evidence in connection with the
criminal possession of a firearm charge tried to the
court. The defendant argues that because the revolver
was never connected to the crime, it was not relevant.
We disagree. In this case, the revolver was relevant to
show that the defendant possessed the means to com-
mit the crime of criminal possession of a firearm. See
State v. Pena, 301 Conn. 669, 675, 22 A.2d 611 (2011).
When offered for the purpose of showing a defendant’s
means or opportunity to commit a charged offense,
the state need not ‘‘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).7 Here, the
weapon was not only suitable for the commission of
the charged offenses, but it also matched the descrip-
tion given by Johnson to the police of a silver, revolver
style handgun.
Moreover, the probative value of the revolver was
not outweighed by its prejudicial impact. The revolver
was highly probative as evidence of the defendant’s
ability to access firearms, especially the type that was
used in the shooting. The defendant claims that admit-
ting the revolver into evidence was unduly prejudicial
because it was never linked to the earlier shooting. The
admission of the revolver cannot be considered unduly
prejudicial, however, when offered for this limited pur-
pose because mere possession of the means to commit
a crime, without more, does not establish that the defen-
dant had bad character or a propensity for violence.
See State v. Pena, supra, 301 Conn. 676. On this basis,
we cannot conclude that placing the revolver into evi-
dence in connection with the criminal possession of a
firearm charge being tried to the court was an abuse
of the court’s discretion.
B
The defendant next claims that testimony concerning
the circumstances under which the revolver was recov-
ered should not have been admitted because evidence
of the domestic violence incident was not relevant and
was unduly prejudicial. The state argues that the testi-
mony was properly admitted to combat the false impres-
sion left by the defendant’s cross-examination of
Williams, specifically that she may have lied to the
police and had the defendant arrested on a false gun
charge to prevent him from returning to his
estranged wife.
The following additional facts are relevant to this
claim. Following Williams’ testimony linking the
revolver to the defendant, the defendant attacked her
credibility on cross-examination. The defendant elicited
information about the personal relationship8 between
the defendant and Williams, specifically that she some-
day hoped to be ‘‘Mrs. Towanna Solomon’’ and that this
wish was complicated by the fact that the defendant
was already married. She also testified that she hoped
that the defendant would ‘‘forgive her’’ for turning over
the revolver and telling the police that the firearm
belonged to the defendant.
After Williams testified, the state proffered the testi-
mony of Hartford police Officer Steven Chesworth, con-
cerning the circumstances surrounding the recovery of
the revolver. Chesworth was one of the police officers
who responded to a domestic violence complaint made
by Williams on November 23, 2010. The state argued that
the officer’s testimony had become necessary because
Williams’ credibility had been attacked. The state also
argued that Williams’ testimony—specifically, that she
asked for the defendant’s forgiveness—may have cre-
ated the false impression that Williams sought forgive-
ness for lying to the police that the revolver belonged
to the defendant. The court agreed that the defendant
had opened the door9 and, after finding that the evi-
dence was relevant and more probative than prejudicial,
allowed limited testimony concerning the circum-
stances under which the revolver was recovered.
Chesworth testified that when he responded to the
call, he encountered Williams in a friend’s apartment.
Williams was scared because the defendant was angry
and had a gun.10 Chesworth testified that when the
police entered Williams’ apartment, they encountered
the defendant in a back hallway and informed the defen-
dant that they were present to investigate ‘‘a complaint
of a domestic.’’ Chesworth testified that Williams con-
sented to a search of the apartment for a firearm and
that the weapon was found in a dresser. The firearm
was then admitted as a full exhibit.
On cross-examination, the defendant explored the
nature of the domestic violence incident and was per-
mitted to read into evidence Williams’ written statement
to the police.11 The defendant elicited testimony that
he had not physically touched her and that the alterca-
tion was limited to an exchange of words.
On the basis of our review of the record, we conclude
that the evidence concerning the circumstances sur-
rounding the seizure of the revolver was appropriately
admitted to rehabilitate Williams’ credibility and to cor-
rect a false impression that may have been created by
the defendant’s cross-examination of Williams, specifi-
cally that she may have lied to the police and had the
defendant arrested on a false gun charge to prevent
him from returning to his estranged wife.
Within the discretion of the court, the state may
‘‘explain and clarify relevant matters [of a witness’]
testimony which [may] have been weakened or
obscured by his cross-examination.’’ State v. Graham,
186 Conn. 437, 448, 441 A.2d 857 (1982). ‘‘Under our
adversary system of trials the opponent must be given
an opportunity to meet this attack [on credibility] by
evidence sustaining or rehabilitating the witness.’’
(Internal quotation marks omitted.) State v. Daley, 11
Conn. App. 185, 187, 526 A.2d 14 (1987).
Here, the defendant elicited testimony regarding Wil-
liams’ wish for the defendant’s forgiveness and the
details of her complicated personal relationship with
the defendant, which placed her motives and credibility
at issue. Accordingly, testimony that the revolver was
recovered during a domestic disturbance became pro-
bative of Williams’ credibility and necessary to dispel
the notion that her statements to the police were a
fabrication. We cannot say that the state’s brief inquiry
into the details of the domestic violence call was unduly
prejudicial as it was limited to a few questions regarding
why the police were called and the overall character
of the incident. We conclude that the trial court did not
abuse its discretion when it admitted this testimony in
connection with the criminal possession of a firearm
charge that was being tried to it.
C
The defendant also claims that the court abused its
discretion when it admitted evidence that the defendant
pleaded guilty—pursuant to the Alford doctrine12—to
criminal possession of the revolver found in Williams’
apartment. He contends that this evidence was not rele-
vant to the criminal possession of a firearm charge
stemming from the shooting incident and that the evi-
dence was unduly prejudicial. The state argues that the
evidence was properly admitted because the defendant
opened the door. On the basis of our review of the
record, we conclude that admission of the defendant’s
guilty plea was harmless error.
The following additional facts are relevant to this
claim. The defendant cross-examined Chesworth and
challenged the state’s evidence that the defendant pos-
sessed the revolver found at Williams’ apartment. The
defendant presented evidence that he lived at Williams’
apartment only part-time, that the revolver was not
found in his bags, and that it was found in a dresser
belonging to Williams. He also established that it was
police practice that, when firearms are seized, they are
sent to a state laboratory for analysis, including finger-
printing. Chesworth testified that he was aware of this
general police practice, but did not know if the revolver
in this case underwent forensic testing.
Following the cross-examination of Chesworth, the
state proffered the testimony of another Hartford police
officer that the defendant had pleaded guilty to crimi-
nally possessing the revolver found at Williams’ apart-
ment. The state contended that such testimony was
now relevant to establish that it was the defendant’s
revolver and to explain why it was not sent for forensic
testing. The defendant objected, noting that his plea
was made pursuant to the Alford doctrine and that
evidence of the guilty plea was prejudicial. The court
ruled that evidence of the defendant’s conviction for
criminally possessing a revolver would not be admitted,
but cautioned that his ruling was ‘‘subject to what the
cross-examination is. . . . If something comes up in
cross that requires clarification then [I’ll] allow it. . . .
If [defense counsel] cross-examines at any length that
the gun was not tested, then I will allow it.’’
The state then called Hartford police Officer John
O’Hare. O’Hare testified that he interviewed the defen-
dant regarding his possession of the firearm found at
Williams’ apartment. On cross-examination, the defen-
dant elicited testimony from O’Hare that the defendant
never admitted owning the revolver during his
interview.
Following this cross-examination, the state again
sought to introduce evidence that the defendant
pleaded guilty to possessing the revolver and argued
that the defendant had opened the door by asking
whether the defendant ever admitted to owning the
revolver. The court allowed the introduction of the
defendant’s plea. O’Hare then testified on redirect
examination that he was aware that the police recov-
ered the revolver from Williams’ apartment and that
the defendant subsequently had pleaded guilty to pos-
sessing the revolver found at the apartment.
We observe that the defendant’s guilty plea was made
pursuant to Alford and that such a ‘‘plea does not require
an admission of guilt but rests on a defendant’s conces-
sion that the state had enough evidence to convict him
of the crime with which he was charged.’’ State v. Mor-
dasky, 84 Conn. App. 436, 448, 853 A.2d 626 (2004).
‘‘Even though [an Alford plea] may be regarded as a
tacit admission, its inconclusive and ambiguous nature
dictates that it should be given no currency beyond the
particular case in which it was entered.’’ Lawrence v.
Kozlowski, 171 Conn. 705, 712 n.3, 372 A.2d 110 (1976),
cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d
1066 (1977).
Accordingly, even if the defendant opened the door,
it was improper for the court to have allowed evidence
of the defendant’s Alford plea for the purposes of prov-
ing that the defendant admitted to possessing the
revolver found in Williams’ apartment. See Groton v.
United Steelworkers of America, 254 Conn. 35, 49, 757
A.2d 501 (2000) (Alford and nolo contendere pleas ‘‘may
not be used against the defendant as an admission in
a subsequent criminal or civil case’’). We conclude,
however, that this error was harmless.
With respect to all of the defendant’s evidentiary
claims, the defendant has failed to show that any impro-
priety impacted the court’s finding of guilt on the charge
of criminal possession of a firearm. We note that the
defendant has failed to cite any evidence that would
lead us to conclude that the court improperly relied
upon inadmissible evidence. In its written decision, the
court stated that it found credible Johnson’s testimony
that the defendant possessed a revolver during the
shooting incident. This testimony, along with the defen-
dant’s criminal history, was all that was needed to sup-
port a conviction of criminal possession of a firearm.
There is no indication from our review of the record
that the court’s decision was affected by any improperly
admitted evidence.13 The defendant’s claim therefore
must fail.
II
Finally, the defendant claims that the court was col-
laterally estopped from finding him guilty of criminal
possession of a firearm after the jury found him not
guilty of the other charges related to the shooting,
including carrying a revolver without a permit. The
defendant acknowledges that this claim was rejected
by our Supreme Court in State v. Knight, 266 Conn.
658, 664–666, 835 A.2d 47 (2003) (doctrine of collateral
estoppel does not apply to several charges allocated
between two triers of fact for concurrent adjudication
upon same evidence), which we are bound to follow.14
Accordingly, the defendant’s claim is without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In a trial to a jury, the defendant was found not guilty of attempt to
commit murder in violation of General Statutes §§ 53a-54a and 53a-49 (a)
(2), attempt to commit assault in the first degree in violation of General
Statutes §§ 53a-59 (a) (5) and 53a-49 (a) (2), and carrying a revolver without
a permit in violation of General Statutes § 29-35.
2
In a subsequent police investigation, no shell casings were found at the
scene of the shooting.
3
While the jury was deliberating on the counts tried to it, the court
heard the testimony of Carl Ajello, a senior assistant state’s attorney, who
established that the defendant had previous felony convictions. The jury
then returned with a verdict of not guilty on the charges tried to it. The
court excused the jury and found the defendant guilty of criminal possession
of a firearm.
4
We observe that when the trial court ruled on the admissibility of evi-
dence at trial, its rulings applied to all counts including those being tried
to the jury. On appeal, however, because the jury found the defendant not
guilty on the counts before it, our review is limited to whether the court
improperly admitted evidence in connection with the criminal possession
of a firearm charge.
5
The defendant was convicted of criminal possession of a firearm on two
occasions, once stemming from the shooting at issue in this appeal, and
once following an unrelated domestic disturbance discussed throughout
this opinion.
6
Prior to the commencement of evidence, the court ruled that evidence
of the defendant’s possession of a revolver at Williams’ apartment would
be admitted and agreed to provide a limiting instruction. The court deter-
mined that the evidence was more probative than prejudicial. At that time,
the state did not seek to introduce evidence that the revolver was recovered
during a domestic violence investigation.
7
We reject the defendant’s argument that the revolver was not sufficiently
linked to the shooting because the state never argued that the revolver
recovered in Williams’ apartment was the actual weapon used in the shoot-
ing. This is of consequence because ‘‘[i]f the weapons . . . are offered to
show that the defendant used them to commit the crime charged and not
solely for the purpose of [establishing access to the means], it must first
appear that the crime charged . . . was committed with such tools or
weapons . . . .’’ (Emphasis added.) 1A J. Wigmore, Evidence (6th Ed.1976)
§ 153, p. 1763–1764.
8
We note that the state repeatedly objected to the defense inquiry into
Williams’ personal relationship with the defendant.
9
The court stated: ‘‘Well counsel, while you were asking the questions,
the state objected several times to any questions about the relationship
between the defendant and the witness. . . . The inferences that she wanted
to marry him but couldn’t because of whatever circumstances. The second
inference that you elicited was that she needed to be forgiven, but we really
don’t know why. You opened the door to this; I’m going to allow the testimony
in. . . . That’s it. And you cannot direct what the state can and can’t do,
you can’t cross-examine, bringing in inferences and then expect that the state
is not going to act upon that. That was one of the things I cautioned about.’’
10
Chesworth testified as follows:
‘‘[The Prosecutor]: Did you end up in her apartment?
‘‘[Chesworth]: Yes, she told us that she was having a fight, and her boy-
friend was upstairs, and she was scared of him because he wanted money,
and she told him to get out because he had a gun, and she was very scared
because he had a gun, and he mushes her face whenever he gets mad, and
she’s afraid he’d use the gun on her.’’
11
Williams stated: ‘‘I asked [the defendant] to stop walking loudly because
the neighbor downstairs complains. We argue about money. He got up in
my face and yelled, I ain’t leaving until you give me my money. I went
downstairs to apartment 202 and called the police. I told the police that
[the defendant] has a gun and that he takes everywhere he goes. It’s a silver
gun that he keeps in his bag or pockets. I told the police the door was
unlocked, and they could go in and find it. I was terrified and scared because
in the past he has mushed me and knocked me down, and I know he has
that gun.’’
12
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 460, 27 L. Ed
2d 162 (1970).
13
The court also stated that, ‘‘Williams, the defendant’s girlfriend, testified
that the defendant carried a revolver at all times. During a domestic violence
episode after this incident, she had the responding officers remove the
defendant’s revolver from their shared apartment.’’ Although the court made
reference to the domestic violence incident, this reference was proper.
14
The defendant raised this claim for the purpose of possible further
appellate review.