State v. Harris , 183 Conn. App. 865 ( 2018 )

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STATE OF CONNECTICUT v. JERMAINE HARRIS
(AC 39432)
DiPentima, C. J., and Elgo and Beach, Js.
Syllabus
Convicted of the crime of criminal possession of a firearm after a trial to
the court, the defendant appealed to this court, claiming, inter alia, that
the evidence was insufficient to support his conviction. The defendant
had been charged with murder and several other crimes in connection
with the shooting death of the victim. He elected a jury trial as to all
of the charges except for the charge of criminal possession of a firearm,
for which he elected a trial to the court. After the jury was unable to
reach a verdict, the court declared a mistrial with respect to the other
charges and found the defendant guilty of criminal possession of a
firearm. Held:
1. The defendant could not prevail on his unpreserved claim that the trial
court violated his constitutional rights to trial by jury, to a fair trial and
to the presumption of innocence, which was based on his assertion that
the court’s finding of guilt and its sentence on the charge of criminal
possession of a firearm were impermissibly based on its finding that he
had committed the murder; the court’s finding and sentence were
founded on reliable evidence, which included trial testimony and certi-
fied records that pertained to the violent circumstances under which
the defendant criminally possessed a firearm, and the court, in finding
facts that happened to be relevant to the charges before the jury, was
free to consider all of the evidence and to come to a conclusion about
it that was different from that of the jury, and to consider the facts and
circumstances appurtenant to the charge of criminal possession of a
firearm in sentencing the defendant.
2. The defendant’s claim that the evidence was insufficient to support his
conviction of criminal possession of a firearm was unavailing; there was
sufficient evidence for the trial court to conclude that the defendant
had physical possession or control of, or exercised dominion over, a
firearm, including testimony from a coconspirator, which was supported
by video and other physical evidence, that the defendant had wielded
not one, but two guns during the incident at issue.
Argued March 15—officially released July 31, 2018
Procedural History
Information charging the defendant with the crimes
of murder, conspiracy to commit murder, felony mur-
der, robbery in the first degree, carrying a pistol without
a permit and criminal possession of a firearm, brought
to the Superior Court in the judicial district of New
Haven, where the charges of murder, conspiracy to
commit murder, felony murder, robbery in the first
degree and carrying a pistol without a permit were
tried to the jury before Alander, J.; thereafter, the court
declared a mistrial; subsequently, the charge of criminal
possession of a firearm was tried to the court; judgment
of guilty, from which the defendant appealed to this
court. Affirmed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Stacey M. Miranda, senior assistant state’s
attorney, and Karen A. Roberg, assistant state’s attor-
ney, for the appellee (state).
Opinion
PER CURIAM. The defendant, Jermaine Harris, was
charged with murder, conspiracy to commit murder,
felony murder, robbery in the first degree, carrying a
pistol without a permit and criminal possession of a
firearm. He elected a jury trial except as to the latter
most charge, which was tried to the court. The jury
was unable to reach a verdict.1 The court, however,
found the defendant guilty of criminal possession of a
firearm in violation of General Statutes § 53a-217 (a)
(1), and sentenced him to five years incarceration. He
now appeals,2 claiming that (1) the court’s finding of
guilt and its sentence deprived him of his constitutional
rights under the sixth and fourteenth amendments to
the United States constitution, and (2) there was insuffi-
cient evidence to support the conviction. We affirm the
judgment of the court.
I
We first3 address the defendant’s claims that the
court’s finding of guilt and its sentence deprived him
of his constitutional right to trial by jury as well as the
due process rights to a fair trial and to the presumption
of innocence. The defendant concedes that his constitu-
tional claims are unpreserved and, therefore, requests
review of them or reversal of the judgment pursuant
to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
(1989),4 or the plain error doctrine,5 or our supervisory
authority over the administration of justice.6
The defendant’s claims are premised on the notions
that (1) ‘‘the trial court’s [finding of guilt] on the criminal
possession of a firearm charge was impermissibly based
on its finding that [the defendant] had committed the
underlying murder’’ and (2) ‘‘[t]he sentence imposed
. . . was predicated upon the court’s determination
that [the defendant] was in fact the shooter.’’7 We reject
these arguments outright, and, therefore, decline to
review the defendant’s unpreserved claims.
During trial on the charge before it, the trial court
was entitled to consider all the evidence presented and
to come to a conclusion different from that of the jury
about what that evidence proved. That much is clear
from State v. Knight, 266 Conn. 658, 663–74, 835 A.2d
47 (2003), wherein our Supreme Court held that (1) a
trial court sitting as concurrent fact finder with a jury is
not collaterally estopped from finding facts that conflict
with factual findings of a jury; id., 663–66; and (2) a
court’s finding of guilt is not impermissibly inconsistent
with a jury’s verdict of not guilty where ‘‘there were
multiple triers of fact deciding separate counts, and
each fact finder was consistent with itself.’’ Id., 672.
The defendant here seeks to distinguish Knight on the
grounds that the jury failed to reach a verdict and that
‘‘it is not that the trial court’s [finding of guilt] is ‘incon-
sistent’ with the jury’s inability to reach a verdict but,
rather, that the trial court’s [finding of guilt] is premised
upon a determination that the defendant has elected to
be made by the jury, not the court. . . . The court
cannot independently render a determination of guilt
that conflicts with the jury’s findings, here the failure
of the jury to reach a verdict at all.’’ (Citation omitted.)
These are distinctions without a difference. First,
despite the defendant’s protestations to the contrary,
the court did not convict the defendant of any crime
other than criminal possession of a firearm. Rather, the
court, in considering the charge before it, merely found
facts that happened also to be relevant to the charges
before the jury. Asking whether the court may do this
is asking whether collateral estoppel applies. The
answer is no. State v. Knight, supra, 266 Conn. 664
(‘‘the doctrine of collateral estoppel does not apply
to the procedurally unique situation in which several
criminal charges against the same defendant have been
allocated between two triers for concurrent adjudica-
tion upon virtually identical evidence’’ [internal quota-
tion marks omitted]).
Second, the finder of fact ‘‘is free to consider all of the
evidence adduced at trial in evaluating the defendant’s
culpability, and presumably does so . . . .’’ (Emphasis
added; internal quotation marks omitted.) State v.
Sabato, 321 Conn. 729, 742, 138 A.3d 895 (2005). Thus,
we are unable to discern any error, constitutional or
otherwise, with the court’s consideration of, and con-
clusions about, the evidence presented: That some evi-
dence may have been relevant to elements of other
crimes does not mean the court cannot independently
find facts that pertain to the charges before it.
Similarly, the court did not err in sentencing the
defendant to the statutory maximum term of imprison-
ment8 for criminal possession of a firearm. ‘‘[A] sentenc-
ing judge may appropriately conduct an inquiry broad
in scope, and largely unlimited either as to the kind of
information he may consider or the source from which
it may come. . . . As a matter of due process, informa-
tion may be considered as a basis for a sentence only
if it has some minimal indicium of reliability. . . . As
long as the sentencing judge has a reasonable, persua-
sive basis for relying on the information which [the
judge] uses to fashion [the] ultimate sentence, an appel-
late court should not interfere with [the judge’s] discre-
tion.’’ (Citations omitted; internal quotation marks
omitted.) State v. Pena, 301 Conn. 669, 681–82, 22 A.3d
611 (2011).
Put simply, the court’s finding of guilt and its sentence
did not flow from a latent murder conviction, but rather
were founded upon reliable evidence, i.e., sworn trial
testimony and certified records, pertaining to the vio-
lent circumstances under which the defendant crimi-
nally possessed a firearm. Just as the court, sitting as
a concurrent fact finder, was not estopped from finding
facts in reaching its determination of guilt, so, too, was
it free to consider the facts and circumstances appurte-
nant to the commission of criminal possession of a
firearm in sentencing the defendant.
We therefore conclude that the defendant’s claims
do not satisfy the third prong of Golding because there
was no constitutional violation and the defendant was
not deprived of a fair trial. See footnote 4 of this opinion.
For the same reasons, we conclude that there is no
error that is ‘‘patent [or] readily discernible’’; (internal
quotation marks omitted) State v. Soyini, 180 Conn.
App. 205, 236, 183 A.3d 42, cert. denied, 328 Conn.
935, 183 A.3d 1174 (2018); or ‘‘of such monumental
proportion that [it] threaten[s] to erode our system of
justice and work a serious and manifest injustice’’
against the defendant so as to ‘‘warrant the extraordi-
nary remedy of reversal.’’ (Internal quotation marks
omitted.) Id., 235. Similarly, this case does not present
a ‘‘rare circumstance in which [constitutional, statutory
and procedural] protections are inadequate to ensure
the fair and just administration of the courts’’ that would
warrant the ‘‘extraordinary’’ exercise of our supervisory
powers. (Internal quotation marks omitted.) State v.
Fuller, 158 Conn. App. 378, 392, 119 A.3d 589 (2015).
Accordingly, we decline to review the claims or to
reverse the defendant’s conviction under any of the
extraordinary means invoked by the defendant.
II
We turn now to the defendant’s claim that the evi-
dence was insufficient to support his conviction by the
court of criminal possession of a firearm in violation
of § 53a-217 (a) (1).9 Specifically, the defendant claims
that ‘‘[e]xcising that judicial determination [that the
defendant was the shooter] there is no independent
evidence that [the defendant] possessed a firearm.’’
(Emphasis in original.) This claim fails for the same
reasons as the first: The court, as a separate and distinct
fact finder, was free to consider all the evidence
before it.
Among that evidence was the testimony of Tevin
Williams, a coconspirator. Williams testified that on the
evening of July 30, 2011, and into the following morning,
he, the victim, Daryl McIver, and the defendant were
hanging out in ‘‘the Hill’’ section of New Haven.
Although the victim was a member of the ‘‘Crips’’ gang
and Williams and the defendant were members of the
rival ‘‘Bloods’’ gang, they all believed that they were free
to associate with one another because the defendant’s
cousin was one of the victim’s best friends.
They spent part of the evening committing armed
robberies, during which the victim and the defendant
both brandished guns while Williams searched their
targets’ pockets for loot. Williams testified that the vic-
tim ‘‘had something to prove’’ and bragged about assas-
sinating another member of the Bloods. After the
defendant heard that, he told Williams that he planned
to shoot the victim in retaliation and that, after doing
so, he would leave his firearm next to the victim’s body
for Williams to recover.10
Williams testified that the defendant shot the victim
several times and put the gun on the ground next to
the victim’s body as forewarned. While the defendant
searched the body for the victim’s gun, Williams
retrieved the defendant’s gun and turned to flee the
scene. Williams heard at least two additional gunshots.11
Later, Williams returned the defendant’s gun to him.
Among other evidence, the state presented a surveil-
lance video showing the shooting and surrounding
events. Williams identified the three individuals in the
video as himself, the victim and the defendant.
‘‘A defendant who asserts an insufficiency of the evi-
dence claim bears an arduous burden. . . . In
reviewing the sufficiency of the evidence to support a
criminal conviction we 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 reason-
ably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable
doubt. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [finder of fact’s] verdict of guilty.’’ (Citation omitted;
internal quotation marks omitted.) State v. Reed, 176
Conn. App. 537, 545–46, 169 A.3d 326, cert. denied, 327
Conn. 974, 174 A.3d 194 (2017).
The challenged element of criminal possession of a
firearm; see footnote 9 of this opinion; is actual posses-
sion.12 ‘‘ ‘Possess’ means to have physical possession or
otherwise to exercise dominion or control over tangible
property . . . .’’ General Statutes § 53a-3 (2). There
was sufficient evidence presented at trial for the court
to conclude that the defendant had physical possession
or control of, or exercise of dominion over, a firearm,
not least of which was Williams’ testimony that the
defendant had wielded not one, but two guns, which
was supported by the video and other physical evi-
dence.13 See, e.g., State v. Williams, 172 Conn. App.
820, 829, 162 A.3d 84 (‘‘the [fact finder] may find a
defendant guilty based solely on the testimony of one
witness’’ [internal quotation marks omitted]), cert.
denied, 326 Conn. 913, 173 A.3d 389 (2017).
The judgment is affirmed.
1
The court, Alander, J., declared a mistrial. The defendant was retried
and found guilty by a jury of murder, robbery and carrying a pistol without
a permit. His appeal from those convictions is pending before our Supreme
Court. See State v. Harris, SC 20022.
2
The defendant’s conviction is an appealable final judgment pursuant to
Practice Book § 61-6 (a) (1). See State v. Gupta, 105 Conn. App. 237, 240–41
n.4, 937 A.2d 746, rev’d in part on other grounds, 297 Conn. 211, 998 A.2d
1085 (2010).
3
Ordinarily, we would address sufficiency of the evidence claims first
due to the nature of the remedy. See State v. Lavigne, 121 Conn. App. 190,
195, 995 A.2d 94 (2010), aff’d, 307 Conn. 592, 57 A.3d 332 (2012). In this
case, however, because the defendant’s insufficiency claim is founded on
his constitutional claims, we will address those claims first.
4
‘‘[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 . . . exists and . . . 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.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
5
‘‘[T]he plain error doctrine, codified at Practice Book § 60-5, is an extraor-
dinary remedy used by appellate courts to rectify errors committed at trial
that, although unpreserved [and nonconstitutional in nature], are of such
monumental proportion that they threaten to erode our system of justice
and work a serious and manifest injustice on the aggrieved party.’’ (Internal
quotation marks omitted.) State v. Soyini, 180 Conn. App. 205, 235, 183
A.3d 42, cert. denied, 328 Conn. 935, 183 A.3d 1174 (2018).
6
‘‘[Supervisory powers] are an extraordinary remedy to be invoked only
when circumstances are such that the issue at hand, while not rising to the
level of a constitutional violation, is nonetheless of utmost seriousness, not
only for the integrity of a particular trial but also for the perceived fairness of
the judicial system as a whole. . . . Constitutional, statutory and procedural
limitations are generally adequate to protect the rights of the defendant and
the integrity of the judicial system. Our supervisory powers are invoked
only in the rare circumstance [in which] these traditional protections are
inadequate to ensure the fair and just administration of the courts.’’ (Internal
quotation marks omitted.) State v. Fuller, 158 Conn. App. 378, 392, 119 A.3d
589 (2015).
7
Specifically, the defendant directs our attention to the court’s statement
at sentencing as follows: ‘‘[T]he significant factor [here] is the circumstances
surrounding . . . your possession of the firearm. I know the jury . . . could
not reach a unanimous conclusion as it relates to . . . the murder charge
. . . that you were facing, but I did find beyond a reasonable doubt . . .
that you were in possession . . . of [a] handgun . . . based on the evidence
presented. I also find that you used that gun to shoot [the victim], that you
used that gun to shoot him multiple times. . . . [The victim] shot Jason
Roman, you then shot and killed [the victim, Daryl McIver] in retaliation
for his shooting of Mr. Roman, and all of it was gang related.’’ The defendant
ignores, however, the court’s statement earlier that ‘‘I don’t take into consid-
eration in sentencing pending charges because . . . I don’t know the validity
. . . of those charges.’’
8
See General Statutes § 53a-217 (b). Despite the defendant’s claims to
the contrary, this case does not in any way implicate Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its progeny.
9
General Statutes § 53a-217 (a) provides in relevant part: ‘‘A person is
guilty of criminal possession of a firearm . . . when such person possesses
a firearm . . . and (1) has been convicted of a felony . . . .’’
10
According to the Bloods’ hierarchy, the defendant outranked Williams,
who therefore was obliged to obey the defendant’s orders.
11
Although he heard gunshots ring out while he was in possession of the
defendant’s gun, Williams testified that he did not see the defendant possess
the victim’s gun. The victim suffered six gunshot wounds; the state presented
evidence that at least eight shots were fired. Ballistics evidence established
that two guns were used to fire those eight shots.
12
The defendant does not dispute that there was sufficient evidence to
prove beyond a reasonable doubt that he previously had been convicted of
a felony.
13
The court specifically stated: ‘‘I do credit Tevin Williams’ testimony that
. . . [the defendant] was in possession of a handgun . . . on July 31 . . . .
I believe that testimony is supported by ballistics evidence as well.’’ See
footnote 11 of this opinion.