State v. Pugh ( 2019 )

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STATE OF CONNECTICUT v. MATTHEW M. PUGH
(AC 40402)
Keller, Bright and Flynn, Js.
Syllabus
Convicted of the crimes of robbery in the first degree, assault in the first
degree and carrying a pistol or revolver without a permit in connection
with the shooting and robbery of the victim, the defendant appealed to
this court. He claimed, inter alia, that the trial court improperly denied
his motion to dismiss the charges, in which he alleged that his right to
due process was violated because of a twenty-three month delay between
the time that the crimes at issue were committed and the date of his
arrest. The defendant had approached the victim on a street, took a
shoulder bag that she was carrying, which contained her credit cards,
and shot her before running down the street with the bag. Thereafter, the
defendant drove several of his acquaintances to stores where purchases
were made using one of the victim’s credit cards. The victim, and two
witnesses, A and M, all gave the police similar descriptions of the defen-
dant, and M identified him in court and from a photographic array shown
to her by the police. The trial court found that the twenty-three month
delay in the defendant’s arrest had occurred because of a gap in the
police department’s assignment of robbery cases after the department
eliminated its robbery division and transferred the investigating detec-
tives to other duties. Held:
1. The evidence of the defendant’s identity was sufficient to support his
conviction of the charges, as the jury reasonably could have concluded
from the evidence presented that the defendant was the perpetrator of
the shooting and robbery; the victim, A and M gave similar descriptions
of the perpetrator to the police in close proximity in time and location
to the events at issue, in which they identified him as a medium complex-
ioned black male who wore a cap or a do-rag as he ran down the street
carrying a bag, in light of M’s testimony that she got a good look at the
defendant when he went past her while carrying a woman’s handbag,
which occurred in close proximity in time and location to the attack
on the victim, it was reasonable for the jury to infer that M saw the
man who shot the victim, one of the defendant’s acquaintances identified
him as the individual who drove her to the stores where the victim’s
credit cards were used, and although there were differences in the
witnesses’ physical descriptions of the defendant, it was the function
of the fact finder to assess credibility.
2. The defendant could not prevail on his claim that the trial court violated
his right to due process when it denied his motion to dismiss the charges,
as he could not show actual, substantial prejudice from the twenty-
three month delay between the time that the crimes were committed
and the date of his arrest: the defendant was unable to show, in the
absence of the delay, that he would have been able to obtain his employ-
ment records, which he claimed would have demonstrated that he was
at work during the time that the crimes took place, as he presented
no evidence regarding record retention by the agency that kept his
employer’s records, the instances of faded memories of witnesses cited
by the defendant did not establish actual, substantial prejudice, as there
was sufficient evidentiary support for the trial court’s finding that it
was not likely that a manager at the defendant’s workplace would have
remembered if one particular employee out of approximately one hun-
dred worked on the night of the crimes at issue, and the testimony of the
defendant’s girlfriend was of limited value, given her close connection
to him; moreover, the defendant failed to show that, in the absence of
the delay, certain information pertaining to his cell phone number would
have been available at trial to show that he had called his girlfriend
more than four hours after the crimes took place, as a representative
of the cell phone company did not verify at trial that the cell phone
number used by the defendant was from her company or that there
existed for that number cell site information, which merely discloses
the location of the nearest cell tower with the strongest signal from the
cell phone, and the trial court found that even if the cell phone informa-
tion existed, it would have done little to support the defendant’s claim
that he was not in the vicinity of the robbery and shooting at the time
it occurred.
3. The defendant’s claim that the trial court committed plain error by giving
the jury a consciousness of guilt instruction regarding a letter he wrote
to his girlfriend while in custody was unavailing: the instruction did not
improperly bolster an insufficient case, as the evidence was sufficient
to permit the jury to find the defendant guilty beyond a reasonable
doubt, the letter supported a reasonable inference that the defendant
attempted to influence a witness to lie, which supported an inference
that he was guilty of assaulting the victim and stealing her credit cards,
it was for the jury to infer whether the letter referred to an acquaintance
of the defendant who was in the car that the defendant drove to the
stores where the victim’s credit cards were used and, thus, whether the
letter was highly probative of and supported a reasonable inference as
to whether the defendant tampered with a witness who could testify as
to his presence when the victim’s credit cards were used, and the possi-
bility that the letter could be subject to innocent interpretations was
not enough to render the instruction improper; moreover, the court
balanced the consciousness of guilt instruction by summarizing the
defendant’s explanations for writing the letter, the instruction allowed
the jury to draw a permissive inference of the defendant’s guilt without
an expression of opinion as to what inference, if any, might be drawn,
and the instruction did not undermine the integrity or fairness of the pro-
ceeding.
Argued March 18—officially released June 25, 2019
Procedural History
Substitute information charging the defendant with
the crimes of robbery in the first degree, assault in
the first degree, carrying a pistol or revolver without a
permit and tampering with a witness, brought to the
Superior Court in the judicial district of New Haven
and tried to the jury before Alander, J.; verdict of guilty;
thereafter, the court granted the defendant’s motion for
a judgment of acquittal as to the charge of tampering
with a witness, and denied the defendant’s motion to
dismiss the charges of robbery in the first degree,
assault in the first degree and carrying a pistol or
revolver without a permit; judgment of guilty of robbery
in the first degree, assault in the first degree and car-
rying a pistol or revolver without a permit, from which
the defendant appealed to this court. Affirmed.
Shanna P. Hugle, with whom was James B. Streeto,
senior assistant public defender, for the appellant
(defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Patrick J. Griffin, state’s attorney,
and John M. Waddock, former supervisory assistant
state’s attorney, for the appellee (state).
Opinion
FLYNN, J. The defendant, Matthew M. Pugh, appeals
from the judgment of conviction, rendered following a
jury trial, of robbery in the first degree in violation of
General Statutes § 53a-134 (a) (2), assault in the first
degree in violation of General Statutes § 53a-59 (a) (5),
and carrying a pistol or revolver without a permit in
violation of General Statutes § 29-35 (a). On appeal, the
defendant claims that (1) the evidence was insufficient
to support his conviction on each of these charges, (2)
the trial court improperly denied his motion to dismiss
in which he contended that his right to due process
was violated by a preaccusation delay, and (3) the court
abused its discretion in giving any consciousness of
guilt instruction and committed plain error in giving
the actual instruction in this case. We disagree with the
first claim and conclude that the evidence sufficed to
permit a reasonable jury to find the defendant guilty of
all charges. We further conclude that the defendant has
failed to show the requisite actual, substantial prejudice
to establish a due process violation resulting from the
preaccusation delay. Finally, the court did not err by
giving a consciousness of guilt instruction because such
an instruction is permissible under our law and the
evidence supported the giving of such an instruction
in this case. We affirm the judgment of the trial court.
The jury was presented with the following evidence
upon which to base its verdict. On August 21, 2008, at
approximately 8 p.m., while Tatiana Grigorenko was
walking on Edwards Street near the corner of Nicoll
Street in New Haven, she noticed the defendant acting
in a strange manner. On her right shoulder, Grigorenko
had a shoulder bag, which contained her wallet, cash,
credit cards, cell phone, keys, and other personal items.
She felt someone tug on her shoulder bag. The defen-
dant ‘‘swerved’’ in front of Grigorenko, pointed a gun
at her, and told her several times to give him the bag. The
defendant shot Grigorenko, striking her right thumb.
Grigorenko released her bag, and the defendant ran
down Nicoll Street carrying the bag. Grigorenko, who
was in pain, began screaming. Grigorenko was not able
to identify the defendant, but described her assailant
as a black male, with a medium complexion, who was
wearing a do-rag on his head and was ‘‘slightly’’ taller
than her height of five feet, four and one-half inches,
in addition to some added height as a result of her
wearing ‘‘a little bit of heels . . . .’’
At approximately 8 p.m. that same evening, while
Stephanie Aquila was inside her house, which was
located on the corner of Lawrence and Nicoll Streets
in New Haven, she heard what she initially thought to
be fireworks followed by screaming coming from the
direction of Edwards Street. She looked out the window
and saw a young, black, medium complexioned male,
approximately five feet six inches tall, who was wearing
dark loose fitting clothing and either a black baseball
cap or a do-rag. The man was carrying a purse under
his right arm and running down Nicoll Street from the
direction of Edwards Street toward Lawrence Street.
Aquila was unable to identify the runner from a photo-
graphic array that she was later shown by the police.
At approximately 8 p.m. on that same evening, Kris-
tine Mingo was in the passenger seat of a vehicle that
was traveling on Nicoll Street. Mingo’s vehicle stopped
at the corner of Nicoll Street and Lawrence Street, and
she saw a man carrying a woman’s handbag in his right
hand, running on Nicoll Street toward her vehicle from
the direction of Edwards Street. Mingo saw the man
run past her vehicle and then turn onto Lawrence Street.
Mingo’s vehicle followed the man as he headed down
Lawrence Street in the direction of Foster Street. Mingo
described the individual as a young, medium complex-
ioned black male between five feet five, and five feet
seven inches tall, who was wearing a loose dark shirt,
baggy pants, and a do-rag on his head. While Mingo’s
vehicle was stopped at the intersection of Lawrence
and Foster Streets, the man ‘‘brushed against the front
of the car’’ and Mingo got a good look at him when
they ‘‘locked eyes and looked right at each other.’’ On
August 29, 2008, a detective with the New Haven Police
Department showed Mingo a photographic array from
which she identified the defendant as the man she had
observed on the night of August 21, 2008.
On August 23, 2008, one of Grigorenko’s stolen credit
cards was used at Shaw’s Supermarket, and other trans-
actions involving the credit cards were declined at the
Burlington Coat Factory. From a surveillance video at
Shaw’s Supermarket, police identified Latricia Black as
the individual who used the stolen credit card. Black
testified that on August 23, 2008, a man named ‘‘Matt’’
drove her, Joann Anderson, and another woman,1 to
Shaw’s Supermarket where Black purchased items with
the stolen credit card that Anderson had given to her.
Black identified the defendant, both in and out of court,
as the man named ‘‘Matt’’ who was driving the car.
Black testified that only she, Anderson, and Black’s
child went inside Shaw’s, and that all the individuals
in the car went into the Burlington Coat Factory. Black
testified that the group proceeded to Burlington Coat
Factory, where a credit card with the name ‘‘Tatiana’’
on it was declined multiple times.
Following a jury trial, the defendant was convicted
of robbery in the first degree, assault in the first degree,
and carrying a pistol or revolver without a permit.
Thereafter, the defendant filed a motion to dismiss the
counts of the substitute information charging him with
robbery, assault, and carrying a pistol without a permit
on the ground that his right to due process had been
violated by the preaccusation delay.2 The court denied
the motion on December 16, 2016. On January 26, 2017,
the court sentenced the defendant to a total effective
sentence of fifteen years of incarceration, to be served
consecutively to an unrelated sentence for murder that
he then was serving. This appeal followed.
I
The defendant first claims that the evidence of iden-
tity was insufficient to sustain his convictions for rob-
bery in the first degree, assault in the first degree, and
carrying a pistol or revolver without a permit. We
disagree.
The following principles guide our resolution of the
defendant’s sufficiency of the evidence claim. The
United States Supreme Court held in Jackson v. Vir-
ginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979), that the fourteenth amendment commands
that ‘‘no person shall be made to suffer the onus of
a criminal conviction except upon sufficient proof—
defined as evidence necessary to convince a trier of
fact beyond a reasonable doubt of the existence of
every element of the offense.’’
‘‘Unlike Aristotelian and Thomistic logic, law does
not demand metaphysical certainty in its proofs. In law,
we recognize three principal proofs: beyond a reason-
able doubt, which is the very high burden in a criminal
case; clear and convincing evidence, required to prove
fraud and certain other claims, which equates to a very
high probability; and preponderance of the evidence,
applied to civil claims generally, which means it is more
probable than not. None of these varying proofs require
absolute certainty.
‘‘To meet one’s burden of proof, evidence is neces-
sary. This evidence comes in two forms, direct and
circumstantial. The basic distinction between direct
and circumstantial evidence is that in the former
instance the witnesses testify directly of their own
knowledge as to the main facts to be proved, while in
the latter case proof is given of facts and circumstances
from which the jury may infer other connected facts
which reasonably follow, according to common experi-
ence. . . . Proof of a fact by the use of circumstantial
evidence usually involves a two-step process. A fact is
first established by direct evidence, which is ordinarily
eyewitness or other direct testimony. That direct evi-
dence can serve as a basis from which the jury infers
another fact. Thus, the direct evidence may operate as
circumstantial evidence from which a fact is inferred
by the jury. . . . When the necessity to resort to cir-
cumstantial evidence arises either from the nature of
the inquiry or the failure of direct proof, considerable
latitude is allowed in its reception . . . .
‘‘An inference is a factual conclusion that can ratio-
nally be drawn from other facts. If fact A rationally
supports the conclusion that fact B is also true, then
B may be inferred from A. The process of drawing
inferences based on a rough assessment of probabilities
is what makes indirect or circumstantial evidence rele-
vant at trial. If the inference (fact B from fact A) is
strong enough, then fact A is relevant to prove fact B.
Inferences are by their nature permissive, not manda-
tory: although the fact proved rationally supports the
conclusion the offering party hopes will be inferred,
the factfinder is free to accept or reject the inference.’’
(Citations omitted; emphasis in original; footnote omit-
ted; internal quotation marks omitted.) Curran v. Kroll,
118 Conn. App. 401, 408–10, 984 A.2d 763 (2009), aff’d,
303 Conn. 845, 37 A.3d 700 (2012).
‘‘In reviewing a sufficiency of the evidence claim, 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 con-
strued and the inferences reasonably drawn therefrom
the [trier of fact] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . In evaluating evi-
dence, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier may draw
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical. . . . This does not require that each subordi-
nate conclusion established by or inferred from the
evidence, or even from other inferences, be proved
beyond a reasonable doubt . . . because this court has
held that a [trier’s] factual inferences that support a
guilty verdict need only be reasonable.’’ (Internal quota-
tion marks omitted.) State v. Morelli, 293 Conn. 147,
151–52, 976 A.2d 678 (2009).
‘‘[P]roof of a material fact by inference from circum-
stantial evidence need not be so conclusive as to
exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact. . . . Thus, in determining whether the evidence
supports a particular inference, we ask whether that
inference is so unreasonable as to be unjustifiable. . . .
In other words, an inference need not be compelled by
the evidence; rather, the evidence need only be reason-
ably susceptible of such an inference. Equally well
established is our holding that a jury may draw factual
inferences on the basis of already inferred facts. . . .
Moreover, [i]n viewing evidence which could yield con-
trary inferences, the jury is not barred from drawing
those inferences consistent with guilt and is not
required to draw only those inferences consistent with
innocence.’’ (Citations omitted; internal quotation
marks omitted.) State v. Copas, 252 Conn. 318, 339–40,
746 A.2d 761 (2000).
‘‘Review of any claim of insufficiency of the evidence
introduced to prove a violation of a criminal statute
must necessarily begin with the skeletal requirements
of what necessary elements the charged statute requires
to be proved.’’ State v. Pommer, 110 Conn. App. 608,
613, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d
418 (2008). The state has the burden of proving beyond
a reasonable doubt the defendant’s identity as the per-
petrator of the crime. See State v. Ingram, 43 Conn.
App. 801, 810–11, 687 A.2d 1279 (1996), cert. denied,
240 Conn. 908, 689 A.2d 472 (1997).
The defendant does not dispute that Grigorenko suf-
fered a gunshot wound or that her handbag was stolen,
but challenges only the evidence of identity. He con-
tends that the evidence of identity was insufficient
because it was based on speculation and conjecture
that the perpetrator, whom Grigorenko was unable to
identify, was the same individual seen later by Mingo
and Aquila, despite the discrepancies in their physical
descriptions of the assailant.
The jury reasonably could have concluded from the
evidence presented at trial that the defendant was the
perpetrator of the crimes. Significantly, Grigorenko,
Aquila, and Mingo described events occurring at
approximately 8 p.m. on the evening of August 21, 2008,
in the same area of New Haven. Grigorenko could not
identify her attacker, but she described him as a
medium complexioned black male who wore a do-rag
on his head, and an oversized T-shirt. Another witness,
Aquila, heard a noise that she first thought was fire-
works exploding and then saw a medium complexioned
black man wearing a cap or a do-rag, running down the
middle of Nicoll Street, which is near Edwards Street,
toward Lawrence Street with a shoulder bag under his
right arm. Finally, a third witness, Mingo, testified that
while she was a passenger in a car on Nicoll Street,
she saw a medium complexioned black male, who was
wearing a do-rag and carrying a woman’s handbag in
his hand, run down the middle of Nicoll Street toward
Lawrence Street. It was reasonable for the jury to infer
that Mingo saw the man who shot Grigorenko, given
that she saw him carrying a woman’s handbag in close
proximity in time and location to the attack on Grigore-
nko. To delve into the differences in the witness’ physi-
cal descriptions of the defendant would usurp the
function of the fact finder to assess credibility, which
we cannot do. See State v. Morgan, 274 Conn. 790, 802,
877 A.2d 739 (2005).
Mingo locked eyes and was able to get a good look
at the man when he ran in front of the car in which
she was riding. When the police showed her a man near
the scene of the crime, she told police that the man
who they had stopped was not the person she had seen
running with the woman’s handbag. On August 29, 2008,
she was able to identify positively the defendant from
an eight person photographic array as the person she
had seen running with a purse. She also identified the
defendant in court. ‘‘[W]hen determining whether a wit-
ness had sufficient time to observe a defendant to
ensure a reliable identification, we have stated that a
good hard look will pass muster even if it occurs during
a fleeting glance. . . . Furthermore, it is the jury’s role
as the sole trier of the facts to weigh the conflicting
evidence and to determine the credibility of witnesses.
. . . Connecticut case law has previously recognized
in-court identifications and identifications from fairly
presented photographic arrays as sufficient evidence
by themselves to allow the trier of fact to conclude
that it was the defendant who committed the crimes
charged.’’ (Citations omitted; internal quotation marks
omitted.) Id., 801–802; see also State v. Smith, 57 Conn.
App. 290, 298–99, 748 A.2d 883, cert. denied, 253 Conn.
916, 754 A.2d 164 (2000).
Additionally, Black identified the defendant as the
individual who drove the group to Shaw’s Supermarket
and Burlington Coat Factory where they successfully
and unsuccessfully used Grigorenko’s various stolen
credit cards. ‘‘[P]ossession of recently stolen property
raises a permissible inference of criminal connection
with the property, and if no explanation is forthcoming,
the inference of criminal connection may be as a princi-
pal in the theft, or as a receiver under the receiving
statute, depending upon the other facts and circum-
stances which may be proven.’’ (Internal quotation
marks omitted.) State v. Rivera, 39 Conn. App. 96, 104,
664 A.2d 306, cert. denied, 235 Conn. 921, 665 A.2d 908
(1995). In State v. Cote, 136 Conn. App. 427, 445–46, 46
A.3d 256 (2012), aff’d, 314 Conn. 570, 107 A.3d 367
(2014), burglary convictions were sustained that were
based entirely on circumstantial evidence that the
defendants were at or near the residence at about the
time of the burglary and that they were in possession
of items stolen from the residence thereafter. These
facts, coupled with the similarity in descriptions given
by Grigorenko, Aquila, and Mingo in close proximity in
time, lead us to conclude that the state adduced suffi-
cient evidence. In the present case, the defendant’s
involvement in the use of the stolen credit cards sup-
ports Mingo’s positive identification of the defendant.
Accordingly, we conclude that the state adduced suffi-
cient evidence of the defendant’s identity to support
his convictions of robbery in the first degree, assault in
the first degree, and carrying a pistol without a permit.
II
The defendant next claims that the court erred in
denying his motion to dismiss when it improperly con-
cluded that a twenty-three month delay between the
commission of the crimes and his arrest did not violate
his federal due process rights.3 We are not persuaded.
In its memorandum of decision on the defendant’s
motion to dismiss, the court found that the defendant
was arrested on July 14, 2010, that a warrant for his
arrest was not prepared until June 25, 2010, and that
all of the evidence supporting the allegations contained
in the arrest warrant was known to the police as of
August 29, 2008. After administrators in the New Haven
Police Department eliminated the robbery division and
its investigating detectives were transferred to other
duties, there was a gap in the assignment of pending
robbery cases to investigative personnel.
‘‘We must first consider the standard of review where
a claim is made that the court failed to grant a motion
to dismiss. Our standard of review of a trial court’s
. . . conclusions of law in connection with a motion
to dismiss is well settled. . . . [W]here the legal conclu-
sions of the court are challenged, we must determine
whether they are legally and logically correct and
whether they find support in the facts . . . . Thus, our
review of the trial court’s ultimate legal conclusion and
resulting [denial] of the motion to dismiss will be de
novo.’’ (Internal quotation marks omitted.) State v.
Vitale, 76 Conn. App. 1, 14, 818 A.2d 134, cert. denied,
264 Conn. 906, 826 A.2d 178 (2003).
‘‘The role of due process protections with respect to
preaccusation delay has been characterized as a limited
one. . . . [T]he Due Process Clause does not permit
courts to abort criminal prosecutions simply because
they disagree with a prosecutor’s judgment as to when
to seek an indictment. . . . This court need only deter-
mine whether the action complained of . . . violates
those fundamental conceptions of justice which lie at
the base of our civil and political institutions . . . and
which define the community’s sense of fair play and
decency . . . . The due process clause has not
replaced the applicable statute of limitations . . . [as]
. . . the primary guarantee against bringing overly stale
criminal charges.’’ (Citation omitted; internal quotation
marks omitted.) State v. Crosby, 182 Conn. App. 373,
391–92, 190 A.3d 1, cert. denied, 330 Conn. 911, 193
A.3d 559 (2018).
‘‘[T]o establish a due process violation because of
pre-accusation delay, the defendant must show both
that actual substantial prejudice resulted from the delay
and that the reasons for the delay were wholly unjustifi-
able, as where the state seeks to gain a tactical advan-
tage over the defendant . . . . [P]roof of prejudice is
generally a necessary but not sufficient element of a
due process claim . . . . [Additionally] the due pro-
cess inquiry must consider the reasons for the delay as
well as the prejudice to the accused.4 (Citations omitted;
internal quotation marks omitted.) State v. Morrill, 197
Conn. 507, 522, 498 A.2d 76 (1985).
The defendant first argues that the delay prejudiced
him because it prevented him from obtaining his
employment records, which he claims would have
shown that he was working at Connecticut Distributors
in Stratford during the time that the crimes took place
in New Haven. In its decision, the court noted the fol-
lowing relevant facts. The defendant testified at the
hearing on his motion to dismiss that he was employed
through a temporary service agency and placed at Con-
necticut Distributors, where he was working the third
shift from 7:30 p.m. to 3:30 a.m. on August 21, 2008. At
the hearing on the motion to dismiss, the defendant
offered the testimony of Jack Connell, the night man-
ager for Connecticut Distributors, who testified that
time cards were kept for temporary employees for ‘‘a
few months’’ and that no records for temporary employ-
ees were currently available. The court credited the
testimony of Bill Steindl, the compliance manager at
Connecticut Distributors, who testified that Connecti-
cut Distributors did not retain records for temporary
employees. Steindl also testified that temporary
employees had their own time cards, which were not
retained by Connecticut Distributors, but were sent to a
temporary employment agency that paid the temporary
employees. We agree with the court’s conclusion that
the defendant was unable to show, absent the delay,
that he would have been able to obtain his employment
records from Connecticut Distributors. The defendant
presented no evidence regarding record retention by
the temporary agency. He, therefore, has not shown
that he suffered actual substantial prejudice.
The defendant also argues that he suffered prejudice
because the memories of witnesses had faded during
the delay. He contends that because he was unable to
obtain employment records due to the delay, he had to
rely on the memories of Mariam Diaz, the defendant’s
girlfriend, and Connell, who both had difficulty remem-
bering whether the defendant was working the night
shift at Connecticut Distributors on August 21, 2008.
‘‘A claim of general weakening of witnesses’ memories,
relying on the simple passage of time, cannot, without
a more specific showing, be said to prejudice the defen-
dant.’’ (Internal quotation marks omitted.) State v. Moo-
ney, 218 Conn. 85, 121, 588 A.2d 145, cert. denied, 502
U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). The
specific instances of faded memories cited by the defen-
dant do not establish actual substantial prejudice. With
regard to Diaz and Connell, the trial court stated: ‘‘It is
unclear that Connell would have remembered which
temporary employees were working the evening of
August 21, 2008, after a delay of any length, as he testi-
fied that one hundred or more temporary employees
worked at Connecticut Distributors in the course of
one year. While Diaz, absent a lengthy delay, may have
remembered whether the defendant was at work on
August 21, her testimony would have been of limited
value, as she was the girlfriend as well as mother of
the defendant’s child and subject to impeachment for
bias.’’ Because there was sufficient evidentiary support
for the court’s findings that it was not likely that Connell
would have remembered after any length of time if one
particular temporary employee out of approximately
one hundred worked on a particular night, and that
Diaz’ testimony was of limited value given her close
personal connection to the defendant, we conclude that
the defendant has not shown that he suffered actual
substantial prejudice.
The defendant last argues that the delay in his arrest
prejudiced his ability to obtain cell phone records,
which he claims would have demonstrated his approxi-
mate location when he called Diaz during his shift at
Connecticut Distributors. The trial court determined
that the defendant failed to satisfy his burden of show-
ing that absent the delay, the cell site information for
his cell phone number would have been available to
him at trial. The court noted that the defendant testified
that the cell phone number that he used to call Diaz
from work was a Sprint phone number, and that the
defendant offered at the hearing the testimony of Kerry
Walker, a representative from Sprint. The court found
that Walker did not verify that the cell phone number
used by the defendant was a Sprint cell phone number,
nor did she testify that cell site information existed for
that cell phone number. The court additionally found
that even if the defendant’s cell phone number was a
Sprint cell phone number and even if cell site records
were available to the defendant at trial ‘‘that information
would have been of limited value. Cell site information
does not disclose the location of the cell phone or the
identity of the cell phone user. Cell site information
merely discloses the location of the closest cell tower
with the strongest signal used by the cell phone, which
can be a distance as great as thirty miles away. Finally,
the only relevant cell phone records submitted [for the
phone number allegedly used by Diaz] show phone calls
between Diaz and the cell phone number [the defendant
testified belonged to him] at 12:39 a.m., 12:57 a.m., and
1:07 a.m. on August 22, 2008. Since the robbery occurred
at 8 p.m. on August 21, 2008, the location of the cell
tower used in the early morning hours of August 22
does little to support the defendant’s claim that he was
not in the vicinity of the robbery at the time it occurred.’’
We conclude that the defendant has not shown actual
substantial prejudice. The court found that the defen-
dant had not shown that Sprint cell phone records ever
existed for the phone number in question. The record
supports the court’s factual findings. Furthermore, the
defendant has not shown that information from a cell
tower, which could have been up to thirty miles away,
for calls purportedly between Diaz and the defendant
that took place the next day more than four hours after
the crimes took place, would be of anything more than
limited value, which is not enough in this case to prove
actual substantial prejudice.
For the foregoing reasons, the defendant has not
shown that he suffered actual substantial prejudice
from the preaccusation delay, which is ‘‘a hurdle the
defendant must overcome to succeed in his due process
claim.’’5 State v. Roger B., 297 Conn. 607, 616, 999 A.2d
752 (2010). We cannot conclude that the preaccusation
delay violated the defendant’s right to due process of
law. We therefore conclude that the trial court did not
err in denying the defendant’s motion to dismiss.
III
We next turn to the defendant’s claim that the court
erred in giving a consciousness of guilt charge regarding
a letter the defendant wrote to Diaz while he was held
in custody awaiting trial. We are not persuaded.
The following facts, which the jury reasonably could
have found, are pertinent to our review. There was
evidence before the jury that, while incarcerated and
awaiting trial, the defendant wrote a letter to Diaz,
stating: ‘‘I go to high court the 8th and I’ll write you
[and] let you know what’s going on, in the meantime
Ma, try get in touch with Joan because they are gonna
try and send an investigator to questioned her to see
if she knew me and I need her to be on point let it be
known that she doesn’t know me at all my love. So
please try and call her to see if her phone still works
to get the message to her.’’ The court admitted the letter
over the defendant’s objection. The court noted that
some of the letter was difficult to read, including the
name ‘‘Joan,’’ but that, in light of the totality of the
evidence, it was a reasonable inference for the jury to
find that the defendant was referring to Joann Ander-
son, and that he was attempting to get her to testify
falsely that she did not know him, although she had
been in his company when the stolen credit cards were
presented for use at the stores. The court stated that
although other reasonable interpretations of the letter
could exist, that did not make the letter inadmissible.
The court found that the letter was relevant to con-
sciousness of guilt.
The court gave the following charge on conscious-
ness of guilt: ‘‘You heard testimony that, after the rob-
bery was supposed to have been committed, the
defendant wrote a letter to Mariam Diaz, which the
state claims was intended to tamper with a witness in
this case, Joann Anderson. The defendant has testified
that he wrote the letter, but that it was written to assist
his investigator and not to tamper with a witness. If
you find, based on the evidence presented, that the
defendant did write such a letter and that he intended
to tamper with a witness, then you may, but are not
required to, infer from those facts that the defendant
was acting with a guilty conscience; that is, that he
thought he was guilty and was trying to avoid punish-
ment. It is for you to determine whether or not the
claims of the state have been proven, whether or not
the actions of the defendant reflect a consciousness
of guilt, and the significance, if any, to attach to any
such evidence.’’
We first address the defendant’s claim that conscious-
ness of guilt instructions should never be given.6 This
claim properly was preserved in the defendant’s request
to charge and by the defendant’s objection at the charg-
ing conference to the giving of a consciousness of guilt
instruction. The defendant acknowledges in his appel-
late brief that the law in Connecticut is to the contrary
and states that this claim is raised for the sake of future
appellate review. In Connecticut, ‘‘[t]he decision to give
a consciousness of guilt instruction is left to the sound
discretion of the trial court.’’ (Internal quotation marks
omitted.) State v. McClain, 324 Conn. 802, 820, 155 A.3d
209 (2017). We follow the binding precedent of our
Supreme Court.
We next turn to the defendant’s claim that the trial
court should not have given a consciousness of guilt
instruction in this particular case. At trial, his counsel
interposed only a general objection to the giving of the
instruction, without any of the specifics raised for the
first time on appeal, which follow. Although the defen-
dant has requested plain error review; see Practice
Book § 60-5; the state claims it should not be granted,
but nonetheless has briefed his claims on the merits.
Our case law oft contains the nostrum that plain error
review is a rule of reversibility. The frequent recitation
of that epigram never adequately explains how an appel-
late tribunal can arrive at a conclusion that a case is
not reversible without engaging in some review. Our
Supreme Court has left ‘‘for another day’’ whether a
trial court’s exercise of its discretion can ever amount
to plain error. Id., 820 n.13.
‘‘It is clear that an appellate court addressing an
appellant’s plain error claim must engage in a review
of the trial court’s actions and, upon finding a patent
error, determine whether the grievousness of that error
qualifies for the invocation of the plain error doctrine
and the automatic reversal that accompanies it.’’
(Emphasis in original; internal quotation marks omit-
ted.) State v. McCoy, 331 Conn. 561, 591, 206 A.3d 725
(2019). Given this background, we review in accordance
with this standard.
The defendant first asserts that the giving of the
instruction bolstered the state’s allegedly insufficient
case. For reasons that require little more amplification,
we already have concluded that the evidence was suffi-
cient to permit a reasonable jury to find the defendant
guilty of the charges against him beyond a reasonable
doubt. Grigorenko, Aquila, and Mingo all described
events occurring on the same evening at approximately
8 p.m. on New Haven streets that connect with one
another involving a young, medium complexioned black
male, who was somewhat taller in height than five feet
four inches and who was running with a woman’s hand-
bag. Grigorenko described being shot in her right thumb
by an assailant who took her handbag by that force and
ran away. Aquila heard the gunshot, which she first
thought to be fireworks, and then saw a man running
down the street with a woman’s handbag. Mingo posi-
tively identified the defendant as the person running
with the handbag. We therefore reject the defendant’s
argument that the evidence was insufficient, improperly
bolstered by the court’s charge, or needed bolstering.
We next deal with the defendant’s assertion that the
letter from the defendant to Diaz, which formed the
evidentiary basis for the consciousness of guilt charge,
was difficult to read and therefore did not justify the
charge. We have reviewed the letter in evidence and
do not conclude that it lacked clarity in its printing.
Although the letter refers to ‘‘Joan’’ and Anderson’s first
name is Joann, we agree with the court that it was for
the jury to infer whether the letter was referring to
Joann Anderson, who was present in the car that the
defendant drove to Shaw’s and who accompanied the
defendant inside Burlington Coat Factory where Grigor-
enko’s stolen credit card was presented.7 The circum-
spect reference in the defendant’s letter to Diaz noting
his need for Anderson to be ‘‘on point’’ in her denial
that she knew him could be viewed by the jury as just
that, circumspection. The letter supported a reasonable
inference that the defendant attempted to influence a
witness to lie, which supported an inference that the
defendant was guilty of assaulting Grigorenko and steal-
ing her credit cards. The possibility that the letter could
be subject to innocent interpretations is not enough to
render the instruction improper. ‘‘Undisputed evidence
that a defendant acted because of consciousness of
guilt is not required before an instruction is proper.
Generally speaking, all that is required is that the evi-
dence have relevance, and the fact that ambiguities or
explanations may exist which tend to rebut an inference
of guilt does not render evidence of flight inadmissible
but simply constitutes a factor for the jury’s consider-
ation. . . . The fact that the evidence might support
an innocent explanation as well as an inference of a
consciousness of guilt does not make an instruction
on flight erroneous. . . . Moreover, [t]he court [is] not
required to enumerate all the possible innocent explana-
tions offered by the defendant. . . . Once [relevant]
evidence is admitted, if it is sufficient for a jury to infer
from it that the defendant had a consciousness of guilt,
it is proper for the court to instruct the jury as to how
it can use that evidence.’’ (Citation omitted; internal
quotation marks omitted.) State v. Silva, supra, 113
Conn. App. 496–97. We therefore conclude that the let-
ter was properly grist for the jury’s fact-finding mill.
Next, the defendant argues that the court erred in
instructing the jury on consciousness of guilt by relying
on the defendant’s letter to Diaz because the probative
value of the letter was outweighed by its prejudicial
effect, citing to State v. Gonzalez, 315 Conn. 564, 593–94,
109 A.3d 453, cert. denied, U.S. , 136 S. Ct. 84,
193 L. Ed. 2d 73 (2015). This claim seems to center on
the assertion that there was no proof that ‘‘Joan’’ was
a reference in the letter to Joann Anderson and that
there was no proof of what ‘‘on point’’ meant. We dis-
agree. In this appeal, the defendant has not raised a
claim of evidentiary error related to the letter. The letter
was in evidence and was probative of the defendant’s
guilt. A jury is permitted to make logical inferences.
If the jury inferred that the reference was to Joann
Anderson, the letter was highly probative as to whether
the defendant was tampering with a witness who could
testify as to the defendant’s presence at the use of
Grigorenko’s stolen credit cards, which could further
connect him as the person who had stolen, at the point
of a gun, Grigorenko’s shoulder bag containing them.
‘‘[I]t is the province of the jury to sort through any
ambiguity in the evidence in order to determine whether
[such evidence] warrants the inference that [the defen-
dant] possessed a guilty conscience.’’ (Internal quota-
tion marks omitted.) State v. Gonzalez, supra, 594.
Finally, the defendant also claims harm from the giv-
ing of the instruction because it undermined his
defense, giving significance to problematic evidence,
requiring him to explain the context of his letter to
Diaz, and negatively impacting the credibility of his
defense witnesses. We reject these claims. The court
balanced its instructions by summarizing the defen-
dant’s explanations for writing the letter. The instruc-
tions given by the court properly allowed the jury to
draw a permissive inference of the defendant’s guilt on
the basis of the letter that the defendant wrote to Diaz
without expressing an opinion on what inference, if
any, might be drawn.
None of these arguments show any clear or obvious
error, nor did the giving of the instruction undermine
the integrity and the fairness of the proceeding so as
to warrant reversal of the defendant’s convictions under
the plain error doctrine.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Black described the fourth person as a Spanish woman with a tattoo on
her arm. Black testified that she saw the woman in the hallway outside the
courtroom in which she was testifying and that the woman was wearing a
white shirt. Mariam Diaz, the defendant’s girlfriend, testified that she had
a tattoo on her arm. During closing argument, the prosecutor reminded the
jury that Diaz ‘‘was dressed in white . . . .’’
2
The defendant also was convicted of tampering with a witness in violation
of General Statutes § 53a-151 (a). The defendant filed a motion for a judgment
of acquittal on statute of limitations grounds as to his conviction of that
offense and the court granted that motion on that ground on December
16, 2016.
3
The defendant also mentions the state constitution in his brief on appeal,
but fails to provide an analysis of the Geisler factors. See State v. Geisler,
222 Conn. 672, 684–86, 610 A.2d 1225 (1992). Accordingly, we deem his
claim under the state constitution abandoned and decline to review it. See
State v. Bennett, 324 Conn. 744, 748 n.1, 155 A.3d 188 (2017).
4
We do not agree with the defendant’s argument that the trial court
improperly failed to apply the standard in State v. Hodge, 153 Conn. 564,
219 A.2d 367 (1966). In that case our Supreme Court stated that the defen-
dant’s rights in a claim of prearrest delay ‘‘must necessarily depend on all
the circumstances, including the length of the delay, the reason for the
delay, prejudice to the defendant, and a timely presentation of the claim to
the trial court.’’ Id., 568. Hodge preceded the prearrest delay cases of the
Supreme Court in United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30
L. Ed. 2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S. Ct.
2044, 52 L. Ed. 2d 752 (1977), which use a substantial prejudice standard.
Our Supreme Court has adopted that standard in State v. Morrill, 197 Conn.
507, 522, 498 A.2d 76 (1985), and its progeny.
5
Because we conclude that the defendant has not demonstrated that he
suffered actual, substantial prejudice, we need not consider whether the
state’s delay in arresting him was wholly unjustifiable. See State v. Crosby,
supra, 182 Conn. App. 395 n.11.
6
‘‘We review a trial court’s decision to give a consciousness of guilt
instruction under an abuse of discretion standard. . . . Evidence that an
accused has taken some kind of evasive action to avoid detection for a
crime, such as flight, concealment of evidence, or a false statement, is
ordinarily the basis for a [jury] charge on the inference of consciousness
of guilt.’’ (Citation omitted; internal quotation marks omitted.) State v. Vas-
quez, 133 Conn. App. 785, 800, 36 A.3d 739, cert. denied, 304 Conn. 921, 41
A.3d 661 (2012). ‘‘To prevail on her claim, the defendant must establish both
that the court abused its discretion and that she suffered harm as a result.’’
State v. Silva, 113 Conn. App. 488, 496, 966 A.2d 798 (2009).
7
The defendant testified that he knew a woman named Joann Anderson,
they were not close, and that he wrote the letter so that Anderson could
‘‘get the situation situated, that she didn’t know me.’’