State v. Davis ( 2015 )

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STATE OF CONNECTICUT v. JOHN
WILLIAM DAVIS, JR.
(AC 35605)
Gruendel, Sheldon and Sullivan, Js.
Argued October 23, 2014—officially released March 31, 2015
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Laila Haswell, assistant public defender, for the
appellant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Michael Dear-
ington, state’s attorney, and Lisa M. D’Angelo, assistant
state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, John William Davis, Jr.,
appeals from the judgment of conviction, rendered after
a jury trial, of carrying a pistol without a permit in
violation of General Statutes § 29-35 (a), unlawful pos-
session of a weapon in a vehicle in violation of General
Statutes (Rev. to 2011) § 29-38 (a),1 reckless endanger-
ment in the first degree in violation of General Statutes
§ 53a-63, interfering with an officer in violation of Gen-
eral Statutes § 53a-167a (a), reckless driving in violation
of General Statutes § 14-222 (a), and, after a trial to the
court, criminal possession of a firearm in violation of
General Statutes § 53a-217 (a) (1). The principal issue
in this appeal is whether the evidence was insufficient
to establish the defendant’s conviction of unlawful pos-
session of a weapon in a vehicle and carrying a pistol
without a permit because the state failed to present
evidence that the defendant lacked a state permit issued
pursuant to General Statutes (Rev. to 2011) § 29-28 (b),2
which is an essential element of both crimes. In addi-
tion, we must decide whether the trial court improperly,
and in violation of the defendant’s due process rights,
intervened and assisted the prosecution at trial, thus
warranting a new trial. With respect to the first issue,
we agree with the defendant that the evidence is insuffi-
cient to sustain his conviction of the charges of carrying
a pistol without a permit and unlawful possession of a
weapon in a vehicle. With respect to the second issue,
we conclude that there was no constitutional impropri-
ety on the part of the trial court judge. We, thus, affirm
the trial court’s judgment in part and reverse it in part.
The record reveals the following facts and procedural
history. On the evening of July 24, 2011, at about 6:30
p.m., Officer Juan Ingles of the New Haven Police
Department was stopped in his police cruiser on Poplar
Street in New Haven, assisting another officer with a
routine traffic stop, when he saw a grey Nissan with
two male occupants coming down the street toward
him. Ingles observed that the vehicle did not have a
front marker plate and that the driver of the vehicle
did not appear to be wearing a safety belt. As the vehicle
approached, Ingles backed his cruiser into an adjacent
driveway, from where he was able to see the vehicle’s
rear marker plate. Using the mobile data terminal in
his cruiser, Ingles ran a registration check on the plate
number and determined that it was assigned to a vehicle
of a different make and model. Ingles pulled out of
the driveway behind the vehicle, activated his cruiser’s
lights, and attempted to initiate a motor vehicle stop.
The vehicle eventually came to a stop several blocks
down the road, at the intersection of Poplar and Lom-
bard Streets. Suspecting that the driver might attempt
to flee once he got out of his vehicle, Ingles, using ‘‘a
trick [he had] learned,’’ opened and slammed shut the
door of his cruiser, but he did not actually exit his
vehicle. Immediately after he had slammed his door
shut, the Nissan, as anticipated, ‘‘took off.’’
The driver of the vehicle, followed by Ingles, tra-
versed several roadways thick with pedestrian traffic
at a high rate of speed and continued onto Interstate
91 northbound toward North Haven. After exiting the
highway via the Middletown Avenue entrance ramp in
New Haven, the driver continued to evade Ingles and
several other police officers who had responded to
Ingles’ call for assistance. As patrol cars converged on
the Nissan, it struck a curb and came to a stop in front
of a Taco Bell restaurant. The driver and the passenger
immediately fled the vehicle on foot, followed by Ingles,
who had exited his cruiser to give chase. Ingles pursued
the driver to the area directly behind the Taco Bell.
There, he saw the driver climb on top of a dumpster,
where he removed what was ‘‘obviously . . . a gun’’
from his waistband and held it above his head. The
driver thrust the gun into the dumpster, which was piled
high with trash, and leapt to the ground. The driver then
ran to a nearby residential property but was ultimately
apprehended by Ingles when he reached a fence at the
rear of the property that obstructed his path. Following
a struggle with Ingles and two other officers, who had
just arrived on the scene, the driver was handcuffed
and taken into custody. Ingles subsequently identified
the driver as the defendant from the state of Connecti-
cut identification card that he was carrying on his
person.
Once the defendant was in custody, Ingles returned
to the dumpster where he had seen him stash the gun.
Acting on information provided by Ingles, other New
Haven police personnel, working with a K-9 unit trained
to locate firearms, discovered a pistol at the bottom of
the dumpster beneath several bags of garbage and some
loose debris. Ingles identified it as the same pistol the
defendant had been holding in his hand when he was
standing on top of the dumpster. The gun was later
examined by personnel from the state forensic science
laboratory, firearm and tool mark section, who deter-
mined that it was a Smith and Wesson, Model SW 40F,
semiautomatic pistol, with a barrel length of four and
one half inches. The gun was inspected for fingerprints
and swabbed for DNA testing, however, no latent finger-
prints were recovered and no DNA test results were
ever produced. The gun was also test fired and found
to be operable.
The defendant was arrested and later charged by long
form information with criminal possession of a firearm
in violation of § 53a-217 (a) (1), carrying a pistol without
a permit in violation of § 29-35 (a), altering firearm
identification marks in violation of General Statutes
§ 29-36 (a), unlawful possession of a weapon in a vehicle
in violation of § 29-38 (a), criminal attempt to assault
a police officer in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-167c (a) (1), reckless endangerment
in the first degree in violation of § 53a-63, interfering
with an officer in violation of § 53a-167a (a), and reck-
less driving in violation of § 14-222 (a). The defendant
pleaded not guilty and elected a jury trial on all charges
except criminal possession of a firearm, on which he
elected a trial to the court.3 The case was tried to a
jury of six before the court, B. Fischer, J., on December
10 and December 11, 2012. The jury found the defendant
guilty of carrying a pistol without a permit, unlawful
possession of a weapon in a vehicle, reckless endanger-
ment in the first degree, interfering with an officer,
and reckless driving.4 Thereafter, the court found the
defendant guilty of criminal possession of a firearm.
The court rendered judgment accordingly, sentencing
the defendant to a total effective term of twelve years
incarceration, execution suspended after nine years,
with a three year period of probation.5 This appeal
followed.
I
The defendant first claims that the evidence was
insufficient to sustain his conviction of the charges of
carrying a pistol without a permit and unlawful posses-
sion of a weapon in a vehicle. Specifically, he claims
that the evidence was insufficient to establish that he
lacked a valid permit to lawfully carry a pistol on the
date of the incident, which is a required element of
both crimes.6 We agree.
‘‘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 evidence in the light
most favorable to sustaining the verdict. Second, we
determine whether upon the facts so construed and the
inferences reasonably drawn therefrom the [finder of
fact] reasonably could have concluded that the cumula-
tive force of the evidence established guilt beyond a
reasonable doubt. . . . This court cannot substitute its
own judgment for that of the jury if there is sufficient
evidence to support the [decision].’’ (Internal quotation
marks omitted.) State v. Elsey, 81 Conn. App. 738, 743–
44, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d
733 (2004).
‘‘[An] appellate court’s first task, in responding to a
claim of evidentiary insufficiency, is to apply the tradi-
tional scope of review to the evidence. That requires
that . . . we view all of the evidence, and the reason-
able inferences drawable therefrom, in favor of the [tri-
er’s] verdict. . . . We note that a claim of insufficiency
of the evidence must be tested by reviewing no less
than, and no more than, the evidence introduced at
trial.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Butler, 296 Conn. 62, 77, 993 A.2d 970
(2010).
This court’s inquiry necessarily begins with an exami-
nation of the elements of the charged offenses. With
respect to the defendant’s conviction of the charge of
carrying a pistol without a permit, § 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 defen-
dant: ‘‘(1) carried a pistol, (2) for which he lacked a
permit, (3) while outside his dwelling house or place
of business.’’ State v. Douglas, 126 Conn. App. 192,
209, 11 A.3d 699, cert. denied, 300 Conn. 926, 15 A.3d
628 (2011).
With respect to the defendant’s conviction of the
charge of unlawful possession of a weapon in a vehicle,
§ 29-38 (a), provides in relevant part: ‘‘Any person who
knowingly has, in any vehicle owned, operated or occu-
pied by such person, any weapon, any pistol or revolver
for which a proper permit has not been issued as pro-
vided in section 29-28 . . . shall be fined not more than
one thousand dollars or imprisoned not more than five
years or both, and the presence of any such weapon,
pistol or revolver, or machine gun in any vehicle shall
be prima facie evidence of a violation of this section
by the owner, operator and each occupant thereof.’’
General Statutes (Rev. to 2011) § 29-38 (a).7 In a prose-
cution under § 29-38, the state must prove: ‘‘(1) that the
defendant owned, operated or occupied the vehicle; (2)
that he had a weapon in the vehicle; (3) that he knew
the weapon was in the vehicle; and (4) that he had no
permit or registration for the weapon.’’ State v.
Delossantos, 211 Conn. 258, 273, 559 A.2d 164, cert.
denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142
(1989).
Sections 29-35 and 29-38 incorporate by reference
the licensing statute, § 29-28,8 which sets forth the nec-
essary qualifications and process by which to obtain a
permit to lawfully carry a pistol or revolver outside of
one’s dwelling residence or place of business. Section
29-28 (b) outlines the two step permit process.9 Appli-
cants must first apply for, and be approved for a tempo-
rary state permit. General Statutes (Rev. to 2011) § 29-
28 (b). The application for a temporary state permit
must be submitted to, inter alia, the police chief in the
applicant’s town of residence or the town in which
he maintains a place of business.10 Assuming that the
applicant meets the qualifying criteria under the statute,
including the completion of a safety course and a back-
ground check, the local authority issues a sixty day
temporary state permit, which is nonrenewable. See
General Statutes § 29-30 (c). Upon the issuance of a
temporary state permit, the local authority is required to
forward the application to the Commissioner of Public
Safety. General Statutes (Rev. to 2011) § 29-28 (b). The
sixty day permit issued by the local authority is valid
statewide and obtaining it is a prerequisite to applying
for and receiving a state permit, which enables its
holder to lawfully carry a pistol or revolver for five
years. General Statutes § 29-30 (c).
Our Supreme Court, in State v. Beauton, 170 Conn.
234, 240, 365 A.2d 1105 (1976), in considering § 29-38,
held that the burden of establishing that the defendant
lacks a proper permit falls on the state.11 ‘‘In Connecti-
cut, there is no blanket prohibition against carrying or
possessing a pistol.’’ Id., 242. The licensing provision,
§ 29-28, is ‘‘part of the enacting or prohibition clause of
the statute . . . defining the corpus delicti.’’ (Footnote
omitted.) Id., 241. Thus the law does not penalize mere
ownership or possession of a firearm, but is instead
aimed specifically at prohibiting the unlicensed car-
rying and vehicular transport of a pistol in the public
arena. See id. Our appellate courts have, thus, carefully
considered the specific licensing provisions set forth
under § 29-28 (b) when assessing whether there is evi-
dence to support convictions under §§ 29-35 and 29-38.
See, e.g., State v. Brunson, 36 Conn. App. 576, 582, 651
A.2d 1335 (discussing § 29-35 and its incorporation of
the geographical limitations set forth in § 29-28), cert.
denied, 232 Conn. 920, 656 A.2d 669 (1995); see also
State v. Beauton, supra, 170 Conn. 239 (state presented
evidence pertaining to local permit in one municipality
but failed to present evidence that defendant lacked
state permit or permit from other municipality); State
v. Nelson, 17 Conn. App. 556, 561–62, 555 A.2d 426
(1989) (same). Under these authorities, a conviction for
the unlicensed carrying or unlawful vehicular transport
of a pistol cannot stand without proof beyond a reason-
able doubt that the defendant lacked a valid permit to
carry the pistol issued pursuant to § 29-28 (b).
Against this background, we consider the defendant’s
claim that the state here failed to prove beyond a reason-
able doubt that he lacked a valid permit to lawfully
carry a pistol. Our analysis of the defendant’s claim is
necessarily based upon the evidence presented at trial.
On the first day of trial, Detective Vincent Imbimbo of
the Connecticut State Police Firearms Unit testified for
the state concerning the defendant’s alleged lack of a
permit. Imbimbo reported that he had conducted a
search of the state database to determine whether a
state permit had been issued to a John William Davis,
Jr., birthdate, November 29, 1998. Imbimbo also testi-
fied that his search had not disclosed a state permit
issued to a person with that name and birthdate.12 On
cross-examination, defense counsel questioned
Imbimbo as to whether his search of the state database
would have disclosed if a temporary, sixty day permit
had ever been issued to the defendant by the local
authority of his town of residence or place of business.
The following colloquy on that issue ensued:
‘‘[Defense counsel]: Detective, when you say you
checked the database do you check the database that
includes both the town as well as the state permits
. . . ?
‘‘[Imbimbo]: The town permit would be valid for sixty
days, at which point he could carry, you could not
purchase off it.
‘‘[Defense counsel]: Okay. So is it possible that there
would be a town permit issued separate and distinct
from the state permit, which would be issued after one
had obtained a town permit?
‘‘[Imbimbo]: Correct.
‘‘[Defense counsel]: So, indeed, [the defendant] may
have in fact possessed a town permit and never in fact
went to the next step to evolve to a state level; is
that correct?
‘‘[Imbimbo]: Right. If he did have a temporary permit
from the town it would be valid for sixty days from the
issuance from the town.
‘‘[Defense Counsel]: Uhm-hm. And did you check the
possibility of him having a town permit?
‘‘[Imbimbo]: I cannot check the possibility of him
having a town permit.
‘‘[Defense Counsel]: You can’t.
‘‘[Imbimbo]: No.
‘‘[Defense Counsel]: So there is a possibility that at
one point, perhaps even at this point during the time
in question that he may have in fact possessed a valid
town permit?
‘‘[Imbimbo]: Possibility, yes. If it never came to our
office to get a valid state permit it’s a possibility.’’
On redirect examination of Imbimbo, the state sought
clarification with respect to the permit process as
follows:
‘‘[The Prosecutor]: So an individual can hold a tempo-
rary city permit for sixty days prior to it coming to
your office?
‘‘[Imbimbo]: Correct. The town will do the back-
ground [check] on him, have him apply to the town,
[and] the town will do their background [check] on
him. Once the temporary permit is issued, if it is issued,
it comes up to our office and we run everything all
over again.’’ Following Imbimbo’s testimony, the state
sought and was granted a continuance for the purpose
of bringing in a second witness to testify regarding the
issuance of a temporary sixty day permit.
The following day, Officer Manmeet Colon of the
New Haven Police Department testified for the state
that he had conducted a records check of the New
Haven permit database and determined that the defen-
dant did not have a temporary permit issued by the
city of New Haven. Colon explained that an individual
seeking a pistol permit is first required to submit an
application for a temporary permit in his town or city of
residence. According to his testimony, the New Haven
database contains all applications and temporary per-
mits issued to residents of New Haven.13 The state,
however, presented no evidence to show that the defen-
dant was a resident of the city of New Haven or that
his place of business was located there. Focusing on
this discrepancy, defense counsel asked Colon whether
his search of the New Haven database had enabled him
to determine if the defendant had a temporary permit
‘‘not within the bounds of New Haven.’’ Colon
responded that he could not make that determination.
As previously noted, the state was required, to meet
its burden of proof on the charges of carrying a pistol
without a permit and unlawful possession of a weapon
in a vehicle, to produce sufficient evidence to prove
beyond a reasonable doubt that the defendant lacked
a permit to carry a pistol on the date of the incident. The
licensing statute, § 29-28 (b), provides that the holder of
a temporary state permit may lawfully carry a firearm
for sixty days prior to applying for a five year state
permit. It therefore was necessary for the state to pre-
sent evidence that such a permit had not been issued
to the defendant by the authority in his town of resi-
dence or place of business in the sixty day period imme-
diately preceding the date of the alleged conduct at
issue here. Colon’s testimony, which was clearly offered
by the state for this purpose, shows only that the defen-
dant did not have a temporary state permit issued by
the city of New Haven. The state failed, however, to
establish that the defendant was a resident of New
Haven or that his place of business was there during
the sixty day period immediately preceding his alleged
conduct in this case. Accordingly, the state did not
establish that the defendant, at the time of his arrest,
lacked a temporary state permit issued by the local
authority of his town of residence or place of business
pursuant to § 29-28 (b), as required to convict him under
either § 29-35 or § 29-38.
The state concedes that there was no direct evidence
as to the defendant’s residence or place of business.
Nevertheless, it argues that the jury could have inferred
that the defendant lacked a temporary state permit to
carry a pistol on the date here at issue based upon
other evidence presented at trial. In support of this
contention, the state argues first that because there was
evidence that Colon, a New Haven police officer, had
searched the New Haven database for evidence as to
whether the city had ever issued a temporary state
permit to the defendant, the jury could infer from his
efforts that the defendant was indeed a resident of New
Haven. This argument lacks merit. Colon’s testimony
reveals that he had merely conducted a search of the
city’s database to determine if a temporary state permit
had ever been issued to a person with the defendant’s
name and birth date. His testimony was devoid of any
facts tending to establish that New Haven was ever the
defendant’s residence or place of business.
Next, the state argues that the defendant’s flight from
pursuing police officers and the discarding of the pistol
in the dumpster just before his arrest evidences his
guilty conscience, and, thus, supports an inference that
he did not possess a valid permit to carry a pistol.
Our law is clear, however, that consciousness of guilt
evidence cannot be relied on to prove the required
substantive elements of a crime. See State v. Bell, 113
Conn. App. 25, 50, 964 A.2d 584, cert. denied, 291 Conn.
914, 969 A.2d 175 (2009). The defendant’s conduct on
the date of the incident, even if indicative of conscious-
ness of guilt, cannot, without impermissible specula-
tion, relieve the state of all or any portion of its burden
of proving that he lacked a valid permit to carry a pistol.
Finally, the state argues, based on its reading of § 29-
28 (b) and Imbimbo’s testimony, that Imbimbo’s search
of the state permit database was itself sufficient to
prove that the defendant had never been issued a tempo-
rary state permit by the local authority in his town of
residence or place of business because a permittee’s
application for such a temporary state permit must be
forwarded to the state for further review as a prerequi-
site to obtaining a five year permit. In this case, then,
the state argues that it is unlikely that any search of
the state database for a five year pistol permit issued
to the defendant, of the kind conducted by Imbimbo,
would have failed to yield information about any sixty
day temporary state permit ever issued to him by the
authority in his town of residence or place of business.
This argument is also unavailing.
With respect to the state’s reliance on § 29-28 (b),
there was no request for an instruction on the licensing
statute, and, thus, it was not made available to the jury.14
As a result, the jury did not have any evidentiary basis
for drawing the contended for inferences regarding the
permit process that the state now offers in hindsight
to salvage the challenged conviction. The only descrip-
tion of the permit process before the jury was that given
in the previously quoted testimony of its witnesses,
Imbimbo and Colon, which unambiguously identifies
the very gap in the state’s evidence that the defendant
highlights and relies on in this appeal. Imbimbo
expressly stated that the search he conducted could not
reveal whether the defendant had obtained a temporary
state permit. As a result, he agreed that there was a
possibility, consistent with the results of his search,
that the defendant possessed a valid permit issued by
the local authority of his town of residence or place of
business on the date of the incident. Colon confirmed
that his search of the New Haven database for a tempo-
rary state permit issued to the defendant was limited
to applications made in the city of New Haven.15
To obtain the challenged conviction, the state was
tasked with producing sufficient evidence for the jury
to find that the defendant lacked a permit to carry the
pistol on the date of the incident. In the present case,
‘‘the state was not faced with an impossible task in
sustaining its burden of proof as to the essential ele-
ments of the crime with which the defendant was
charged.’’ State v. Beauton, supra, 170 Conn. 242. The
permit element is easily determined and susceptible to
proof. In spite of this, there is a dearth of evidence to
establish that element in this case. ‘‘An accused has a
fundamental right, protected by the due process clauses
of the federal and Connecticut constitutions, to be
acquitted unless proven guilty of each element of the
charged offense beyond a reasonable doubt.’’ State v.
Hill, 201 Conn. 505, 512, 523 A.2d 1252 (1986). Here,
the state failed to prove an essential element of §§ 29-
35 and 29-38, and, thus, the defendant’s conviction of
those charges cannot stand.16
II
We next consider the defendant’s claim that the trial
judge improperly assisted the prosecution at trial. The
defendant argues that the court assisted the prosecution
by highlighting gaps in its case and suggesting further
action, specifically with respect to the permit evidence,
and this lack of impartiality constituted structural error
that permeated the defendant’s trial, thus, entitling him
to a new trial on the remaining charges. We disagree.
At the outset, we note that the defendant did not
object to the trial court’s alleged improprieties at trial;
however, because the record is adequate for review and
the defendant raises an issue that has constitutional
implications, we review the defendant’s claim. See State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).17
The right to an impartial tribunal is a fundamental
component of due process. Weiss v. United States, 510
U.S. 163, 178, 114 S. Ct. 752, 127 L. Ed. 2d 1 (1994).
‘‘The principles guiding a trial judge in conducting a
criminal trial are well established. Due process requires
that a criminal defendant be given a fair trial before an
impartial judge and an unprejudiced jury in an atmo-
sphere of judicial calm. . . . In a criminal trial, the
judge is more than a mere moderator of the proceed-
ings. It is his responsibility to have the trial conducted
in a manner which approaches an atmosphere of perfect
impartiality which is so much to be desired in a judicial
proceeding. . . . Consistent with his neutral role, the
trial judge is free to question witnesses or otherwise
intervene in a case in an effort to clarify testimony and
assist the jury in understanding the evidence so long
as he does not appear partisan in doing so. . . .
‘‘Even though a judge may take all reasonable steps
necessary for the orderly progress of the trial, he must
always be cautious and circumspect in his language and
conduct. . . . Any claim that the trial judge crossed the
line between impartiality and advocacy is subject to
harmless error analysis.’’ (Citations omitted; internal
quotation marks omitted.) State v. Lopes, 78 Conn. App.
264, 274–75, 826 A.2d 1238, cert. denied, 266 Conn. 902,
832 A.2d 66 (2003).
It is axiomatic that a judge may not become an advo-
cate for either of the parties at trial. State v. Echols,
170 Conn. 11, 13–14, 364 A.2d 225 (1975). In this case,
however, the defendant has failed to identify any con-
duct on the part of the trial court that raises a question
with respect to its impartiality. The defendant identifies
two ways in which it claims the court acted improperly.
First, the defendant directs our attention to a sidebar
discussion following Imbimbo’s testimony that he sug-
gests shows that the court, during a conference in cham-
bers, implicitly encouraged the state to request a
continuance to call a representative to testify to the
defendant’s lack of a temporary state permit. Second,
the defendant identifies the court’s intervention on two
occasions during the presentation of the evidence to
correct the prosecutor’s misstatement as to the defen-
dant’s date of birth, which was used by Imbimbo and
Colon to verify whether the defendant possessed a
valid permit.
As to the defendant’s first claim, there is nothing in
the record to support the defendant’s contention that
the court encouraged the prosecution to elicit addi-
tional information regarding the defendant’s lack of a
temporary state permit. At sidebar, the court asked
the prosecutor whether she could establish that the
defendant was ineligible for a permit as a result of one
of the disqualifying factors delineated under § 29-28 (b),
specifically, by showing that the defendant was under
the age of twenty-one at the time of the offense. The
prosecutor’s subsequent request for a continuance for
the purpose of bringing in another representative to
testify as to the defendant’s lack of a temporary state
permit was not related to the court’s inquiry regarding
the disqualifying criteria under § 29-28 (b), nor did it
appear to be at the court’s solicitation.
As to the defendant’s second claim, that the court
improperly supplied the prosecutor with the defen-
dant’s correct birthdate, the record shows that the pros-
ecutor made conflicting statements concerning the
defendant’s date of birth during trial. Thus, any attempt
by the court to seek clarification was not improper.
The trial court is free to intervene to clarify the testi-
mony and assist the jury in understanding the evidence
provided that he is nonpartisan in doing so. State v.
Perez, 146 Conn. App. 844, 851, 79 A.3d 149 (2013), cert.
denied, 311 Conn. 909, 83 A.3d 1163 (2014). Finally, we
note that the conduct of the court that the defendant
assails on appeal, and the claimed resultant harm, is
undermined by the record in this case, which shows
that the defendant did not object or move for a mistrial
following the court’s interventions. See State v. Harris,
28 Conn. App. 474, 481, 612 A.2d 123 (taking particular
note that defense counsel did not view court’s conduct
to be so prejudicial as to warrant objection or motion
for new trial), cert. denied, 223 Conn. 926, 614 A.2d
828 (1992).
The court’s conduct in this case certainly did not
amount to ‘‘tilting the balance against the accused and
plac[ing] the judge . . . on the side of the prosecution.’’
(Internal quotation marks omitted.) State v. Peloso, 109
Conn. App. 477, 492, 952 A.2d 825 (2008). Upon our
review of the alleged instances of judicial impropriety
cited by the defendant, we conclude that the defendant
has failed to show that there is a constitutional vio-
lation.
The judgment is reversed only as to the conviction
of carrying a pistol without a permit and unlawful pos-
session of a weapon in a vehicle and the case is
remanded with direction to render judgment of acquittal
on those charges. The judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
1
All references in this opinion to § 29-38 are to the 2011 revision of the
statute unless otherwise noted.
2
All references in this opinion to § 29-28 are to the 2011 revision of the
statute unless otherwise noted.
3
As to that count, the defendant stipulated that he was previously con-
victed of larceny in the second degree in violation of General Statutes
§ 53a-123.
4
The jury acquitted the defendant of altering firearm identification marks
and criminal attempt to assault a police officer.
5
The court sentenced the defendant as follows: on count one, on the
charge of criminal possession of a firearm, a term of five years incarceration;
on count two, on the charge of carrying a pistol without a permit, a term
of five years incarceration, execution suspended after two years, to run
consecutive to count one; on count four, on the charge of unlawful posses-
sion of a weapon in a motor vehicle, a term of five years incarceration to
run concurrent with counts one and two; on count six, on the charge of
reckless endangerment in the first degree, a term of one year incarceration,
to run consecutive to counts one and two; on count seven, on the charge
of interfering with an officer, a term of one year incarceration, to run
consecutive to counts one, two, and six; on count eight, on the charge of
reckless driving, a term of 30 days incarceration, concurrent to the prior
counts.
6
The defendant also challenges the court’s jury instructions on these
charges on the ground that it did not instruct the jury on § 29-28 (b), which
governs the permit requirement. Because we decide that the evidence was
insufficient to sustain the conviction, we do not reach the defendant’s claim
of instructional error.
7
The provision in § 29-38 (a) stating that ‘‘the presence of any such weapon
. . . in any vehicle shall be prima facie evidence of a violation of this section
by the owner, operator and each occupant thereof’’ was held unconstitutional
in State v. Watson, 165 Conn. 577, 597, 345 A.2d 532 (1973), cert. denied,
416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974), on the ground that it
necessarily has the effect of placing the burden of proof on the alleged
violator.
8
General Statutes (Rev. to 2011) § 29-28 (b) provides in relevant part:
‘‘Upon the application of any person having a bona fide residence or place
of business within the jurisdiction of any such authority, such chief of police,
warden or selectman may issue a temporary state permit to such person
to carry a pistol or revolver within the state, provided such authority shall
find that such applicant intends to make no use of any pistol or revolver
which such applicant may be permitted to carry under such permit other
than a lawful use and that such person is a suitable person to receive such
permit. . . . Upon issuance of a temporary state permit to the applicant,
the local authority shall forward the original application to the commissioner.
Not later than sixty days after receiving a temporary state permit, an appli-
cant shall appear at a location designated by the commissioner to receive
the state permit. Said commissioner may then issue, to any holder of any
temporary state permit, a state permit to carry a pistol or revolver within
the state. . . .’’
9
In 2001, § 29-28 (b) was amended. See Public Acts 2001, No. 01-130, §4.
Under the previous law, an individual who wished to carry a gun was required
to hold a local permit in the town of his residence. General Statutes (Rev.
to 2001) § 29-28 (b). If an individual wished to carry a gun outside his town
of residence, a separate statewide permit was required. Both permits were
valid for five years, but the state permit could be renewed even if the local
permit was allowed to expire. General Statutes (Rev. to 2001) § 29-30 (b)
and (c). In 2001, the dual permit system was eliminated and replaced with
the current two step, one permit system. See General Statutes (Rev. to 2015)
§ 29-28 (b).
10
The statute has since been amended by No. 13-3, § 57, of the 2013 Public
Acts to remove the option of applying for a permit in the town of one’s
place of business.
11
This differs from some jurisdictions in which the defendant must pro-
duce evidence of a license or permit to show that his conduct falls within
an exception to the general prohibition against carrying a firearm, and, thus,
constitutes an affirmative defense. See, e.g., Commonwealth v. Jones, 372
Mass. 403, 406, 361 N.E.2d 1308 (1977); People v. Henderson, 391 Mich. 612,
616, 218 N.W.2d 2 (1974); Seattle v. Parker, 2 Wash. App. 331, 332, 337, 467
P.2d 858, review denied, 78 Wash. 2d 993 (1970).
12
On appeal, the defendant highlights the fact that his birthdate is in fact
November 29, 1988.
13
Colon described the permit process as follows:
‘‘[Prosecutor]: Just for clarity, there is no such thing as a local permit; is
that correct?
‘‘[Colon]: There is no such thing as a local permit; it’s called a temporary
state permit.
‘‘[Prosecutor]: And when one goes to apply for a temporary state permit
where are they supposed to go?
‘‘[Colon]: They’re supposed to go to their town where they reside or
the city.
‘‘[Prosecutor]: Where they reside?
‘‘[Colon]: Correct.
‘‘[Prosecutor]: So, in your database . . . should be any New Haven resi-
dent that applied or has a temporary state pistol permit?
‘‘[Colon]: Yes.’’
14
Moreover, even if the jury had been instructed on the procedure dictated
by § 29-28 (b), a statement of statutory procedure does not serve to prove
that the procedure was followed. Additionally, we note that the statute itself
is vague as to the details surrounding the permit process, particularly with
respect to timing, which is not specified.
15
This court conducted a searching review of the record in this case for
any evidence from which to circumstantially infer the defendant’s residence
or place of business. We note that there was testimony from Ingles regarding
his use of the defendant’s Connecticut identification card to identify him
at the time of his arrest, however, the identification card was not introduced
into evidence, and there was no testimony as to its particulars, i.e., the
defendant’s address. The record is devoid of any information pertaining to
the defendant’s residence or place of business.
16
Having concluded that there was insufficient evidence of the defendant’s
lack of a valid permit, we have no occasion to consider the defendant’s
additional claim, based on State v. Smith, 9 Conn. App. 330, 339–40, 518
A.2d 956 (1986), that there is insufficient evidence to sustain his conviction
of the charge of unlawful possession of a weapon in a vehicle because the
state failed to establish that the passenger of the defendant’s vehicle lacked
a valid permit.
17
Pursuant to State v. Golding, supra, 213 Conn. 239–40, ‘‘a defendant
can prevail on a claim of constitutional error not preserved at trial only if
all of the following conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the alleged constitutional
violation clearly exists and clearly deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt. . . . [T]he first two [prongs of Golding] involve a determination of
whether the claim is reviewable . . . and under those two prongs, [t]he
defendant bears the responsibility for providing a record that is adequate
for review of his claim of constitutional error.’’ (Citations omitted; internal
quotation marks omitted.) State v. Elson, 311 Conn. 726, 743–44, 91 A.3d
862 (2014).