State v. Covington

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STATE OF CONNECTICUT v. JEFFREY COVINGTON
(AC 39141)
Alvord, Keller and Bright, Js.
Syllabus
Convicted, following a jury trial, of the crime of carrying a pistol without
a permit and, following a trial to the court, of the crime of criminal
possession of a firearm, the defendant appealed to this court. The defen-
dant had been charged with murder and assault in the first degree in
connection with a shooting incident. 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 on the charges of murder and assault in the first degree,
the court declared a mistrial as to those charges and found the defendant
guilty of criminal possession of a firearm. Held:
1. The defendant’s claim that the evidence was insufficient to support his
conviction of carrying a pistol without a permit was unavailing: the
jury’s inability to reach a unanimous verdict on the murder and assault
charges did not suggest that it did not believe that the defendant was the
shooter, as the jury’s inability to reach a verdict could not be construed
as a verdict or acquittal, the state was not required to present the
testimony of an eyewitness to the shooting or forensic evidence that
tied the defendant to the shooting, but could rely on circumstantial
evidence to prove that he was the shooter, and the defendant made
several highly incriminating statements after the shooting, which the
jury could have found to be compelling circumstantial evidence that he
was the shooter, and did not argue that the evidence was insufficient
to demonstrate that he lacked a permit at the time of the shooting;
moreover, the jury could have found that the defendant possessed a
pistol, as defined by statute (§ 29-27), at the time and place of the
shooting, as evidence concerning the bullets recovered from the victims’
bodies and testimony regarding the defendant’s possession of a handgun
immediately after the shooting reasonably and logically supported a
finding that he carried out the shooting with a handgun that had a barrel
of less than twelve inches in length.
2. The defendant could not prevail on his unpreserved claim that his convic-
tion of criminal possession of a firearm should be vacated, which was
based on his assertion that his rights to a trial by jury and to a fair trial
were violated because the trial court’s finding of guilt contravened what
he claimed was the jury’s verdict on the murder and assault charges;
the jury’s inability to reach a unanimous verdict on the murder and
assault charges did not shed light on its assessment of the evidence as
to those counts, there was no basis in law to equate its inability to reach
a unanimous verdict with a finding or a verdict in the defendant’s favor,
and, thus, the defendant could not demonstrate that a constitutional
violation existed and deprived him of a fair trial pursuant to State v.
Golding (213 Conn. 233), that the trial court committed plain error or
that its determination warranted the exercise of this court’s supervisory
authority over the administration of justice.
3. The defendant could not prevail on his unpreserved claim that he was
entitled to a new sentencing hearing because the trial court impermissi-
bly relied on facts that contravened the jury’s determination as to the
murder and assault charges; the defendant failed to demonstrate that
any error existed, as his claim rested on the flawed premise that the
jury made findings of fact with respect to the murder and assault charges.
Argued March 21—officially released August 21, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder, assault in the first degree, car-
rying 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,
assault in the first degree and carrying a pistol without
a permit were tried to the jury before Alander, J.; verdict
of guilty of carrying a pistol without a permit; thereafter,
the court declared a mistrial as to the charges of murder
and assault in the first degree; subsequently, the defen-
dant was tried to the court on the charge of criminal
possession of a firearm; judgment of guilty of carrying
a pistol without a permit and criminal possession of
a firearm, from which the defendant appealed to this
court. Affirmed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Patrick J. Griffin, state’s
attorney, and John P. Doyle, Jr., and Seth Garbarsky,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
KELLER, J. The defendant, Jeffrey Covington,
appeals from the judgment of conviction, rendered fol-
lowing a jury trial, of carrying a pistol without a permit
in violation of General Statutes § 29-35, and the judg-
ment of conviction, rendered following a court trial, of
criminal possession of a firearm in violation of General
Statutes § 53a-217 (a) (1).1 The defendant claims that
(1) this court should vacate his conviction of carrying
a pistol without a permit because the evidence was
insufficient to support his conviction for that offense;
(2) this court should vacate his conviction of criminal
possession of a firearm because, in finding guilt with
respect to that offense, the court impermissibly contra-
vened the jury’s ‘‘verdict’’ with respect to murder and
assault counts with which he also had been charged,
thereby violating his right to a trial by jury and his right
to a fair trial; and (3) this court should afford him a
new sentencing hearing because, at the time of sentenc-
ing, the trial court impermissibly relied on facts that
contravened the jury’s ‘‘verdict’’ with respect to the
murder and assault charges. We affirm the judgment of
the trial court.
The state presented evidence of the following facts.
At or about 8 p.m., on March 24, 2014, the defendant
was operating an automobile that was owned by his
friend, Derek Robinson. When the defendant drove Rob-
inson’s automobile away from the intersection of Whal-
ley Avenue and the Ella T. Grasso Boulevard in New
Haven, Robinson was in the passenger’s seat. A short
time later, at approximately 8:50 p.m., Robinson’s auto-
mobile was parked along Shelton Avenue in New Haven,
near the intersection of Shelton Avenue and Ivy Street.
At that time, the victims, Trayvon Washington and Taij-
hon Washington, were walking home from a friend’s
house. They walked past Robinson’s automobile while
someone was getting into it. The victims continued
walking from Shelton Avenue to Butler Street. Approxi-
mately two minutes after they had passed the automo-
bile, as they were walking along Butler Street in the
vicinity of the Lincoln-Bassett School, the automobile
approached them at a high rate of speed. Taijhon Wash-
ington, who was walking just behind his half brother,
Trayvon Washington, stated, ‘‘watch out, bro.’’ Then,
several gunshots emanated from the automobile. Taij-
hon Washington suffered fatal gunshot injuries to his
chest. Trayvon Washington was shot in the head,
resulting in a fractured skull. Although he survived the
shooting, he endured extensive medical treatment, and
a bullet from that incident remained lodged in his head
at the time of trial.
Following the shooting, the defendant drove to the
residence of his girlfriend’s family on Poplar Street in
New Haven. He was accompanied by Robinson. The
defendant’s girlfriend along with some of her family
members, including her sister, Dajah Crenshaw, were
present at the residence. The defendant arrived shortly
before the shootings were reported on the evening
news.2 When the defendant entered the residence, he
was holding the keys to Robinson’s automobile. Crens-
haw observed Robinson remove a handgun from his
waistband and hand it to the defendant. Thereafter, the
defendant concealed the handgun in a dresser in his
girlfriend’s bedroom.
The following day, Crenshaw overheard the defen-
dant having a telephone conversation with Robinson’s
brother. During the conversation the defendant referred
to a gun, and he asked Robinson’s brother if he had
buried it. In the days that followed, the defendant made
various statements that reflected his involvement in
and responsibility for the shooting.3 Significantly, the
defendant admitted to a longtime acquaintance, Marga-
ret Flynn, that he happened to catch Taijhon Washing-
ton off guard and had killed him. The defendant
elaborated, stating that the shooting occurred while he
was in Robinson’s automobile, but that Robinson was
not involved and was unaware that the shooting was
going to happen. Moreover, the defendant told Flynn
that he retaliated against Taijhon Washington because,
in February, relatives of Taijhon Washington assaulted
him. Additional facts will be set forth, as necessary.
I
First, the defendant claims that this court should
vacate his conviction of carrying a pistol without a
permit because the evidence was insufficient to support
his conviction for that offense. We disagree.
We begin our analysis of the defendant’s claim by
setting forth the principles that guide us when we con-
sider claims of insufficient evidence. ‘‘The standard of
review we apply to a claim of insufficient evidence is
well established. 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 reasonably drawn therefrom the [finder
of fact] reasonably could have concluded that the cumu-
lative force of the evidence established guilt beyond a
reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] each of the
basic and inferred facts underlying those conclusions
need not be proved beyond a reasonable doubt. . . .
If it is reasonable and logical for the jury to conclude
that a basic fact or an inferred fact is true, the jury is
permitted to consider the fact proven and may consider
it in combination with other proven facts in determining
whether the cumulative effect of all the evidence proves
the defendant guilty of all the elements of the crime
charged beyond a reasonable doubt. . . .
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . In evaluating
evidence, the [finder] of fact is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [finder of fact]
may draw whatever inferences from the evidence or
facts established by the evidence it deems to be reason-
able and logical. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Citations omitted; internal quotation marks
omitted.) State v. Campbell, 328 Conn. 444, 503–505,
180 A.3d 882 (2018).
Next, we examine the essential elements of the
offense. Section 29-35 (a) provides in relevant part: ‘‘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. . . .’’ ‘‘[T]o obtain a conviction for carrying a
pistol without a permit, the state was required to prove
beyond a reasonable doubt that the defendant (1) car-
ried 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); see also State
v. Tinsley, 181 Conn. 388, 403, 435 A.2d 1002 (1980)
(explaining essential elements of § 29-35), cert. denied,
449 U.S. 1086, 101 S. Ct. 874, 66 L. Ed. 2d 811 (1981).
‘‘This court has explained that carrying and posses-
sion are different concepts. . . . While a person can
possess an item without carrying it on his person, § 29-
35 is designed to prohibit the carrying of a pistol without
a permit and not the [mere] possession of one. . . .
Accordingly, constructive possession of a pistol or
revolver will not suffice to support a conviction under
§ 29-35. . . . Instead, to establish that a defendant car-
ried a pistol or revolver, the state must prove beyond
a reasonable doubt that he bore a pistol or revolver
upon his person . . . while exercising control or
dominion of it. . . . Because there is no temporal
requirement in § 29-35 . . . and no requirement that
the pistol or revolver be moved from one place to
another to prove that it was carried . . . a defendant
can be shown to have carried a pistol or revolver upon
his person, within the meaning of the statute, by evi-
dence proving, inter alia, that he grasped or held it in
his hands, arms or clothing or otherwise bore it upon
his body for any period of time while maintaining
dominion or control over it.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Crespo, 145 Conn.
App. 547, 573–74, 76 A.3d 664 (2013), aff’d, 317 Conn.
1, 115 A.3d 447 (2015).
‘‘The term ‘pistol’ and the term ‘revolver’, as used in
sections 29-28 to 29-38, inclusive, mean any firearm
having a barrel less than twelve inches in length.’’ Gen-
eral Statutes § 29-27. In cases in which a violation of
§ 29-35 is charged, ‘‘the length of the barrel is . . . an
element of [the] crime and must be proven beyond a
reasonable doubt.’’ State v. Hamilton, 30 Conn. App.
68, 73, 618 A.2d 1372 (1993), aff’d, 228 Conn. 234, 636
A.2d 760 (1994); see also State v. Fleming, 111 Conn.
App. 337, 346–47, 958 A.2d 1271 (2008), cert. denied,
290 Conn. 903, 962 A.2d 794 (2009). We observe, how-
ever, that, like the other essential elements of the
offense, the length of the barrel of a pistol or revolver
may be proven by circumstantial, rather than direct,
evidence. ‘‘Direct numerical evidence is not required
to establish the length of the barrel of a handgun in
question.’’ State v. Miles, 97 Conn. App. 236, 242, 903
A.2d 675 (2006).
In challenging the sufficiency of the evidence, the
defendant argues that the state failed to present evi-
dence from which the jury could have found that he
possessed a pistol, as defined in § 29-27, at the time
and place of the alleged shooting. In a long form infor-
mation, the state alleged that the defendant committed
this offense at or about 8:50 p.m., on March 24, 2014,
in the area of Lilac and Butler Streets in New Haven.
Moreover, with respect to the essential elements of the
offense, the court instructed the jury with respect to
the specific time and place the state alleged that the
crime was committed and that, to convict the defendant,
the state bore the burden of proving beyond a reason-
able doubt, inter alia, that he carried the pistol when
he was not within his dwelling or place of business.
The court stated that the state bore the burden of prov-
ing that he ‘‘possessed the pistol or revolver upon his
person in a public place.’’
In arguing that the evidence was insufficient to con-
vict him of carrying a pistol without a permit, the defen-
dant relies on the undisputed fact that the state did not
introduce into evidence what it believed to be the gun
used in the shooting. He argues that the evidence that
Robinson handed him a pistol or a revolver while he
was at Crenshaw’s residence shortly after the alleged
shooting was insufficient to convict him of the offense.
Moreover, the defendant argues, the state did not pre-
sent any evidence from which the jury reasonably could
have found that the barrel of the gun that he allegedly
used in the shooting was less than twelve inches in
length.
The defendant argues that, to the extent that the state
relies on evidence that he was the shooter, it failed to
present evidence to demonstrate that he was, in fact,
the shooter. The defendant argues that there was ‘‘[a]
lack of objective evidence . . . to independently sup-
port the conviction,’’ and he supports this argument
primarily by his belief that, ‘‘[i]n this case, the jury’s
verdict with respect to the murder and assault charges
was ‘not guilty.’ ’’ The defendant argues that ‘‘the jury’s
acquittal on the murder and assault charges’’ should
compel this court to conclude that ‘‘there was insuffi-
cient evidence that [he] was in fact the shooter.’’
The defendant’s attempt to disregard the significance
of the evidence that he was the shooter lacks merit. It
is belied by the unambiguous record of what transpired
at trial and, specifically, the verdict actually returned
by the jury. The record reflects that, during the jury’s
deliberations, it indicated to the court that it was unable
to reach a unanimous verdict with respect to the murder
and assault counts. The court provided the jury with a
Chip Smith instruction.4 Thereafter, the jury indicated
to the court that it had reached a unanimous verdict
with respect to the carrying a pistol without a permit
count, but was ‘‘hopelessly deadlocked’’ with respect
to the murder and assault charges. Relying on the jury’s
representation, the court declared a mistrial with
respect to the murder and assault charges. The jury
unanimously returned a finding of guilt with respect to
the carrying a pistol without a permit count.
‘‘It is settled doctrine in Connecticut that a valid jury
verdict in a criminal case must be unanimous. . . . A
nonunanimous jury therefore cannot render any ‘find-
ing’ of fact.’’ (Citations omitted.) State v. Daniels, 207
Conn. 374, 388, 542 A.2d 306 (1988), cert. denied, 489
U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); see
also State v. Aparo, 223 Conn. 384, 388, 614 A.2d 401
(1992) (same), cert. denied, 507 U.S. 972, 113 S. Ct.
1414, 122 L. Ed. 2d 785 (1993). The jury’s inability to
reach a unanimous verdict with respect to the murder
and assault charges does not shed any light on the jury’s
assessment of the merits of the evidence presented with
respect to those counts or suggest that the jury did not
believe that he was the shooter. There is absolutely no
legal authority to somehow consider the jury’s inability
to reach a verdict with respect to these counts as a
‘‘verdict,’’ an ‘‘acquittal,’’ or any type of finding at all.
Accordingly, in arguing that the evidence did not sup-
port a finding that he was the shooter, the defendant’s
reliance on the jury’s inability to reach a unanimous
verdict is misplaced.5
In arguing that the evidence did not support a finding
that he was the shooter, the defendant also relies on
the fact that no eyewitness to the shooting identified
him as the shooter, no forensic evidence tied him to
the shooting, and, for a variety of reasons, the jury
should have not found the state’s witnesses to be credi-
ble. These arguments are not persuasive because, to
demonstrate that the defendant was the shooter, it was
not required that the state present the testimony of an
eyewitness to the shooting or forensic evidence that
tied the defendant to the shooting. The state could prove
that the defendant was the shooter by relying on circum-
stantial evidence. Moreover, the defendant’s arguments
concerning the credibility of the state’s witnesses were
fodder for the jury’s consideration. In our review of the
evidence, we must evaluate the testimony of the state’s
witnesses in the light most favorable to sustaining the
jury’s verdict. This court ‘‘must defer to the finder of
fact’s evaluation of the credibility of the witnesses that
is based on its invaluable firsthand observation of their
conduct, demeanor and attitude. . . . [The fact finder]
is free to juxtapose conflicting versions of events and
determine which is more credible. . . . It is the [fact
finder’s] exclusive province to weigh the conflicting
evidence and to determine the credibility of witnesses.
. . . The [fact finder] can . . . decide what—all, none,
or some—of a witness’ testimony to accept or reject.’’
(Citation omitted; internal quotation marks omitted.)
State v. Colon, 117 Conn. App. 150, 154, 978 A.2d 99
(2009).
The defendant acknowledges that the state presented
evidence that, following the shooting, the defendant
made several statements in which he incriminated him-
self as being the shooter. The defendant attempts to
downplay the weight of these statements as proof of
his guilt by arguing that the statements were ‘‘ambigu-
ous’’ and ‘‘feckless . . . .’’ It suffices to observe that,
among the many statements attributed to the defendant
that reflected his consciousness of guilt, the state pre-
sented testimony from Crenshaw that, on the day after
the shooting, she overheard a conversation between
the defendant and Robinson’s brother in which the
defendant asked if a gun had been ‘‘buried.’’ See, e.g.,
State v. Otto, 305 Conn. 51, 73, 43 A.3d 629 (2012)
(destruction or concealment of murder weapon may
reflect consciousness of guilt). Moreover, the state pre-
sented evidence that the defendant admitted to Flynn
that he committed the shooting from Robinson’s auto-
mobile and that he was motivated to retaliate against
Taijhon Washington because of an incident that
involved his family members. These statements may
not reasonably be deemed to be ambiguous or feckless.
Rather, they are highly incriminating and, in interpreting
the evidence in the light most favorable to the jury’s
finding of guilt, we must presume that in its assessment
of all of the evidence presented at trial, the jury found
them to be compelling circumstantial evidence that the
defendant was the shooter.
The defendant has not persuaded us that the evidence
was insufficient to prove that he was the shooter and,
thus, utilized a firearm of some type at the time and
place of the shooting, which indisputably took place
outside of his dwelling house or place of business. The
defendant does not argue that the evidence was insuffi-
cient to demonstrate that, at the time of the shooting,
he lacked a permit. Thus, we turn our attention to the
defendant’s argument that there was no evidence that
the firearm he used was a ‘‘pistol’’ as defined in § 29-
27. We look to additional relevant evidence presented
by the state.
During the state’s case-in-chief, Crenshaw testified
that, when the defendant and Robinson arrived at her
residence shortly after the shooting occurred, they were
acting differently.6 She observed Robinson remove what
she described as ‘‘a handgun’’ from his waistband and
hand it to the defendant. She testified that the defendant
concealed the handgun in a dresser in her sister’s
bedroom.
During the state’s case-in-chief, it also presented testi-
mony from Susan S. Williams, an associate medical
examiner employed by the Office of the Chief Medical
Examiner for the state. She testified that, on March 26,
2014, she performed an autopsy on Taijhon Washington.
During the autopsy, she recovered two bullets, one
found in the victim’s right lung and another found in
soft tissue at the top of his left chest. These bullets
were presented in evidence.
The state also presented testimony from Earl Wil-
liams, a firearms examiner employed by the state’s
forensic science laboratory. Earl Williams testified that
he carefully examined the bullets that were recovered
from Taijhon Washington’s body. Earl Williams testified
that the bullets were .32 caliber lead bullets that
reflected ‘‘rifling impressions . . . .’’ Earl Williams tes-
tified that these impressions are ‘‘lands and grooves
which are impressed [on a bullet] when the bullet trav-
els down the barrel, as well as the direction in which
they twist.’’ According to Earl Williams, ‘‘rifling’’ is
defined as spiraling grooves inside of a gun’s barrel that
are designed to make a bullet fired from that gun spin
in such a manner that it becomes stable in flight. Earl
Williams testified that rifling is found in ‘‘rifled fire-
arms,’’ but not shotguns, which he described as being
‘‘smooth bore . . . .’’ The prosecutor asked Earl Wil-
liams if ‘‘handguns, such as pistols and revolvers’’
exhibit rifling, and Earl Williams testified that they did.
Earl Williams testified that the bullets recovered from
the victim’s body were in a badly damaged condition,
meaning that they lacked individual characteristics that
might have been used to identify a particular firearm
from which they had been fired. Although Earl Williams
testified that he was not able to identify or eliminate
the bullets as having been fired from the same specific
firearm, he testified that both bullets were similar in
terms of the unique rifling impressions that appeared on
them. Earl Williams agreed that both of the .32 caliber
bullets were ‘‘consistent with bullets that would be fired
out of a .32 caliber handgun or revolver . . . .’’7
When viewed in conjunction with a finding that the
defendant was the shooter, the foregoing evidence con-
cerning the bullets recovered from Taijhon Washing-
ton’s body and Crenshaw’s testimony regarding the
defendant’s possession of a handgun immediately after
the shooting reasonably and logically supported a find-
ing that the firearm that the defendant utilized during
the shooting was either a handgun or a revolver.
Although neither Crenshaw nor Earl Williams defined
the words ‘‘handgun’’ or ‘‘revolver’’ during their testi-
mony, they did not suggest that these words had pecu-
liar, specialized, or technical meanings. We observe that
these words are commonly and frequently used in the
English language. Thus, it is appropriate to presume that
in its careful assessment of the witnesses’ testimony,
the jury afforded these terms their common meanings.
‘‘Jurors are not expected to lay aside matters of com-
mon knowledge or their own observation and experi-
ence of the affairs of life, but, on the contrary, to apply
them to the evidence or facts in hand, to the end that
their action may be intelligent and their conclusions
correct.’’ (Internal quotation marks omitted.) State v.
Padua, 273 Conn. 138, 157, 869 A.2d 192 (2005).
In setting forth the common understanding of words
and phrases, it is appropriate to rely on their dictionary
definitions. ‘‘[T]he definition of words in our standard
dictionaries is taken as a matter of common knowledge
which the jury is supposed to possess.’’ State v. Asher-
man, 193 Conn. 695, 737, 478 A.2d 227 (1984), cert.
denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814
(1985); see also State v. Lewis, 303 Conn. 760, 781, 36
A.3d 670 (2012) (same). A ‘‘handgun’’ is defined as ‘‘any
firearm that can be held and fired with one hand; a
revolver or a pistol.’’ Random House Webster’s
Unabridged Dictionary (2d Ed. 2001); see also Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2003) (defin-
ing ‘‘handgun’’ as ‘‘firearm [as a revolver or pistol]
designed to be held and fired with one hand’’). A
‘‘revolver’’ is defined as ‘‘a handgun having a revolving
chambered cylinder for holding a number of cartridges,
which may be discharged in succession without reload-
ing.’’ Random House Webster’s Unabridged Dictionary
(2d Ed. 2003); see also Merriam-Webster’s Collegiate
Dictionary, supra (defining ‘‘revolver’’ as ‘‘handgun with
a cylinder of several chambers brought successively
into line with the barrel and discharged with the
same hammer’’).
Because Earl Williams testified that the bullets were
consistent with having been fired from a handgun or a
revolver, which is a type of handgun, his testimony
reasonably and logically supported a finding that the
bullets had been fired from a handgun. Furthermore,
Crenshaw confirmed that the gun she saw Robinson
pass to the defendant shortly after the shootings was
a handgun.8 This court has held that a finder of fact
reasonably may infer that a handgun—defined broadly
as a type of weapon that may be held and fired with
one hand—necessarily has a barrel of less than twelve
inches. For example, in State v. Williams, 48 Conn.
App. 361, 370, 709 A.2d 43, cert. denied, 245 Conn. 907,
718 A.2d 16 (1998), a defendant who was convicted of
carrying a pistol without a permit claimed in relevant
part that the state did not present sufficient evidence
of the barrel length of the firearm that was utilized
in the commission of the crime. Although the state
presented scant evidence with respect to the issue, it
nonetheless presented the testimony of an eyewitness
to the crime who testified that the defendant had held
the gun used in the commission of the crime in his
‘‘ ‘hand.’ ’’ Id., 372. This court, rejecting the claim that
the evidence was insufficient to support the conviction,
reasoned that ‘‘[i]f the length of the gun were longer
than twelve inches, the jury could infer that the defen-
dant might not be able to hold the weapon with only
one hand.’’ Id.
Similarly, in State v. Fleming, supra, 111 Conn. App.
346, a defendant appealed from a conviction of carrying
a pistol without a permit on the ground that the state
did not present sufficient evidence of the barrel length
of the firearm used in the commission of the crime.
Among the evidence on which this court relied in
rejecting the defendant’s claim of evidentiary insuffi-
ciency was the statement of an eyewitness that the
defendant had held the firearm used in the commission
of the crime with one hand. Id., 348. This court reasoned
that this evidence reasonably supported an inference
by the jury that the barrel of the firearm was less than
twelve inches in length. Id., 348–49.
Moreover, Crenshaw testified that she observed Rob-
inson remove the handgun at issue from his waistband
before handing it to the defendant. Both this court and
our Supreme Court have concluded that such evidence
is sufficient for a reasonable jury to conclude that the
barrel of the gun must be less than twelve inches in
length. See State v. Williams, 231 Conn. 235, 252, 645
A.2d 999 (1994) (evidence that defendant pulled small
handgun out of his waist length jacket reasonably sup-
ported finding that handgun had barrel of less than
twelve inches in length), overruled in part on other
grounds, State v. Murray, 254 Conn. 472, 487, 757 A.2d
578 (2000); see also State v. Trotter, 69 Conn. App. 1,
7, 793 A.2d 1172 (2002) (evidence that defendant left
crime scene with gun that he concealed in his coat
pocket relied on to support finding that defendant car-
ried firearm with barrel of less than twelve inches in
length), cert. denied, 260 Conn. 932, 799 A.2d 297 (2002);
State v. Gonzalez, 25 Conn. App. 433, 444, 596 A.2d 443
(1991) (evidence that defendant utilized pistol that he
carried in his back pocket relied on to support finding
that firearm had barrel of less than twelve inches in
length), aff’d, 222 Conn. 718, 609 A.2d 1003 (1992).
The state accurately observes that it may prove the
barrel length of a firearm by circumstantial evidence.
In the present case, the state presented evidence that
the defendant was the shooter. The state presented in
evidence two .32 caliber bullets that were recovered
from the body of one of the victims. The state presented
Earl Williams’ opinion that these bullets by their nature
and markings were consistent with having been fired
from a handgun. Crenshaw testified that the defendant
possessed and concealed a handgun shortly after the
shootings. The testimony of Earl Williams and Crens-
haw, as well as other evidence and findings based
thereon related to the shooting, provided the jury with
a factual basis on which to find beyond a reasonable
doubt that the defendant carried out the shooting with
a firearm that had a barrel of less than twelve inches
in length. Accordingly, we conclude that the state satis-
fied its burden of proving that the defendant carried a
pistol, as defined in § 29-27.
II
Next, the defendant claims that this court should
vacate his conviction of criminal possession of a firearm
because, in finding guilt with respect to that offense,
the trial court impermissibly contravened the jury’s
‘‘verdict’’ with respect to the murder and assault
charges, thereby violating his right to a trial by jury and
his right to a fair trial. We conclude that the defendant
is unable to obtain any type of relief on the basis of
this unpreserved claim.
For the first time, on appeal, the defendant argues
that the court violated his right to a trial by jury and
his right to a fair trial because in its findings with respect
to the criminal possession of a firearm count, which
was tried to the court, the court impermissibly found
that ‘‘[he] had committed the murder and assault’’
offenses with which he had been charged.9 The defen-
dant argues that the court’s finding in this regard was
impermissible because, with respect to the murder and
assault charges, he had elected to be tried by a jury,
and ‘‘[o]nce the jury acquitted [him] of those charges,
the court had no basis to contravene the jury’s verdict
and find that [he had] possessed a firearm.’’ The defen-
dant argues that the court should have ‘‘abided by the
jury’s determination regarding [the murder and
assault charges].’’10
The defendant seeks review of this unpreserved claim
under the bypass doctrine set forth in State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989).11 Alterna-
tively, he argues that the court’s error rose to the level
of plain error; Practice Book § 60-5;12 or that this court
should grant him relief in the exercise of its supervisory
authority over the administration of justice.13
The defendant’s claim rests on a fundamentally
flawed factual premise that the jury returned a verdict
of not guilty with respect to the murder and assault
charges.14 As we already have explained in part I of this
opinion, the record reflects that the jury repeatedly
indicated to the court that it was unable to reach a
unanimous verdict with respect to the murder and
assault charges.15 Thereafter, the court declared a mis-
trial as to the murder and assault charges. For the rea-
sons discussed in part I of this opinion, we conclude
that the jury’s inability to reach a unanimous verdict
in connection with the murder and assault charges does
not shed any light on the its assessment of the merits
of the evidence presented with respect to those counts.
There is no basis in law to equate the jury’s inability
to reach a unanimous verdict with respect to these
charges as a finding or a verdict in the defendant’s
favor. The events at trial reflect an inability of the jury
to reach a verdict on these counts, and nothing more.
On this unambiguous record, we readily conclude
that the defendant is unable to demonstrate, for pur-
poses of Golding, that the alleged constitutional viola-
tion exists and deprived him of a fair trial. Also, the
defendant is unable to prevail under the plain error
doctrine because he cannot demonstrate that an obvi-
ous error exists that affects the fairness and integrity
of and public confidence in the judicial proceedings.
Finally, the defendant is unable to demonstrate that,
with respect to the present claim, an issue of the utmost
seriousness is present that warrants the exercise of our
supervisory authority. In short, the present claim falls
far short of the mark of warranting relief under any of
the extraordinary avenues of review invoked by the
defendant.16
III
Finally, the defendant argues that this court should
afford him a new sentencing hearing because, at the
time of sentencing, the trial court impermissibly relied
on facts that contravened the jury’s ‘‘verdict’’ with
respect to the murder and assault charges. We conclude
that the defendant is unable to obtain any relief on the
basis of this unpreserved claim.
For the first time, on appeal, the defendant argues
that the court relied on an improper finding at the time
of sentencing, which was that he had used a firearm
to shoot the victims.17 The defendant argues that the
court’s reliance on this finding was improper for the
reasons we already have discussed in parts I and II of
this opinion, specifically, because the finding conflicts
with what he believes was the jury’s ‘‘verdict’’ with
respect to the murder and assault counts. The defendant
argues in relevant part: ‘‘The court’s reliance on conduct
for which [he] elected to have tried to a jury and was
ultimately acquitted of to justify an increased sentence
is a violation of [his] due process rights to a fair sentenc-
ing and violates [his] sixth amendment right to a jury
trial.’’ The defendant argues: ‘‘Absent a jury’s finding
of guilt as to the murder and assault charges . . . a
sentence imposed on a judicial finding to the contrary
must be vacated.’’ The defendant repeatedly asserts that
the court’s reliance on its finding that he was the shooter
was improper because it contravenes ‘‘the jury’s
verdict.’’
The defendant urges us to review this unpreserved
claim pursuant to the bypass doctrine of Golding. Alter-
natively, he argues that the court’s reliance on its finding
that he was the shooter reflects plain error and that
this court should afford him relief in the exercise of its
supervisory authority over the administration of justice.
In part II of this opinion, we discussed the parameters of
these extraordinary avenues of review. For the reasons
already set forth, we conclude that the defendant has
not demonstrated that he is entitled to relief under any
of these doctrines. Because the defendant’s claim rests
on the fundamentally flawed factual premise that the
jury made findings of fact with respect to the murder
and assault charges, he has failed to demonstrate that
any error exists.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was tried before a jury with respect to two additional
counts, specifically, murder in violation of General Statutes § 53a-54a (a)
and assault in the first degree with a firearm in violation of General Statutes
§ 53a-59 (a) (5). After the jury indicated that it was unable to reach a
unanimous verdict with respect to these counts, the court declared a mistrial
with respect to them. The defendant waived his right to a jury trial with
respect to the criminal possession of a firearm count.
For the carrying a pistol without a permit conviction, the court sentenced
the defendant to a term of incarceration of five years (with one year being
a mandatory minimum sentence), execution suspended after three years,
followed by a period of probation of three years. For the criminal possession
of a firearm conviction, the court sentenced the defendant to a term of
incarceration of ten years (with two years being a mandatory minimum
sentence), execution suspended after seven years, followed by a period of
probation of three years. Additionally, the court required the defendant to
register as a deadly weapon offender for a period of five years. The court
ordered that the sentences were to run consecutively.
2
At trial, Crenshaw testified on behalf of the state concerning what she
observed and overheard after the defendant and Robinson arrived at her
residence. Although Crenshaw testified that, following the defendant’s
arrival, she and other family members were watching ‘‘the news’’ on televi-
sion, at which time they heard news about the shooting, she did not identify
which news program that she was watching. In light of the evidence that
the shooting occurred at or about 8:50 p.m., the jury reasonably could have
inferred that Crenshaw had been watching one of the local 10 p.m. or 11
p.m. news programs.
3
Additionally, the state presented evidence of the defendant’s conduct
following his arrest that strongly suggested that he was conscious of his
guilt. This evidence included recorded telephone conversations in which
the defendant engaged while he was incarcerated and awaiting trial. The
evidence reflected that he took steps to prevent Robinson from testifying
at his hearing in probable cause. Also, the defendant attempted to establish
a false alibi for both himself and Robinson covering the time of the shooting.
Moreover, the state presented evidence that, while incarcerated, the defen-
dant and an acquaintance watched television news coverage of the shooting.
The defendant flippantly acknowledged in the presence of others that he
had been the shooter, and laughed at the televised interview of the vic-
tims’ mother.
4
A Chip Smith instruction provides guidance to a deadlocked jury in
reaching a verdict. See State v. O’Neil, 261 Conn. 49, 74–75, 801 A.2d 730
(2002).
5
We also observe that, in arguing that the evidence presented by the state
at the present trial was insufficient to demonstrate that he carried a pistol
without a permit, the defendant appears to rely, in part, on his representation
that, during a retrial on the murder and assault counts, a jury found him
not guilty of the murder and assault offenses. The defendant does not provide
any explanation as to why the outcome of a subsequent trial should affect
our analysis of the evidence presented in the present trial. His reliance on
what transpired in a separate proceeding is not in any way relevant to
our analysis.
6
Crenshaw testified that, on March 24, 2014, the defendant and her sister
were dating, and that the defendant came to her residence often. Crenshaw
also testified that she was friendly with Robinson, having known him for
seven or eight years. Crenshaw testified that, after the defendant and Rob-
inson arrived at her residence following the shooting, Robinson appeared
to be nervous and that the two men kept looking at one another.
7
As we observed previously, the state did not recover a murder weapon
and, consequently, was unable to present any forensic evidence related
directly thereto. It is not surprising that, during cross-examination, Earl
Williams agreed with defense counsel that he was unable to testify with
any degree of certainty what particular gun the .32 caliber bullets had been
fired from. He agreed that he was not able ‘‘to ascertain’’ whether they had
been fired from ‘‘either a revolver . . . or [a] semiautomatic . . . .’’
Consistent with the lack of a suspected murder weapon in evidence and
Earl Williams’ testimony that the damaged condition of the bullets precluded
him from opining with respect to whether the recovered bullets had been
fired from the same specific firearm, this testimony on cross-examination
does not detract from the weight of Earl Williams’ opinion during his direct
examination that the bullets were ‘‘consistent with bullets that would be
fired out of a .32 caliber handgun or revolver . . . .’’
8
Given the evidence that the defendant was both the shooter and the
driver of Robinson’s automobile at about the time of the shootings, it would
be reasonable for the jury to infer that after firing the gun, the defendant
passed it to Robinson while the defendant drove away from the scene of
the shootings. Thus, the jury could reasonably conclude that the gun the
defendant used during the shooting and the gun Robinson handed him
shortly thereafter were one and the same.
9
After the court declared a mistrial with respect to the murder and assault
charges and accepted the jury’s verdict with respect to the carrying a pistol
without a permit charge, it afforded the parties an opportunity to make
arguments with respect to the criminal possession of a firearm charge before
announcing its finding of guilt with respect to that charge. The parties
stipulated that the defendant previously had been convicted of a felony
offense.
The court discussed the evidence presented by the state, including the
evidence of his incriminatory admissions to Flynn; incriminatory statements
that he made to one of his fellow inmates, William McKinney; the incrimina-
tory statements he made to and in the presence of Crenshaw; and the
incriminating statements made by the defendant while he was incarcerated
following the shooting, which were reflected in recorded telephone conver-
sations.
In relevant part, the court then stated: ‘‘The obvious question is why
would anyone confess to his neighbor or admit his involvement in the day
room of a jail, and why would anyone hatch a plan to tamper with a witness
on prison phones that one had to know were monitored and recorded? The
answer lies in the hubris, or the vain glory of a nineteen year old young
man who took pride in successfully [exacting] his revenge. The glory was
in the telling.
‘‘Viewed in isolation, the [evidence presented by the state] may not con-
vince a reasonable fact finder beyond a reasonable doubt that the defendant
was the shooter; viewed together, each buttresses and confirms the other
and convinces this fact finder beyond a reasonable doubt that the defendant
possessed a firearm on the evening of March 24, 2014, at the corner [of] Lilac
and Butler Streets. . . . After weighing and considering all the evidence in
this case, I conclude that [the] state has proved beyond a reasonable doubt
that the defendant committed the crime of criminal possession of a firearm.’’
10
We note that at no point during the trial did the court expressly state
that it believed, let alone had found, that the defendant had committed
murder or assault. To the contrary, at the time of sentencing, the court
appears to have expressed its belief that the defendant lacked the specific
intent necessary for the commission of either of these offenses. See footnote
17 of this opinion. Instead, the court stated that it believed that the defendant
shot the victims. Thus, even if we agreed with the defendant that the jury
made any findings with respect to the murder and assault charges, it is not
at all clear that the court contradicted them in reaching its finding of guilt.
11
‘‘Under Golding, as modified in In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015), 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 defen-
dant 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.’’ (Internal quotation marks omitted.) State v.
Mitchell, 170 Conn. App. 317, 322, 154 A.3d 528, cert. denied, 325 Conn. 902,
157 A.3d 1146 (2017).
12
The plain error doctrine ‘‘is not . . . a rule of reviewability. It is a rule
of reversibility. That is, it is a doctrine that this court invokes in order to
rectify a trial court ruling that, although either not properly preserved or
never raised at all in the trial court, nonetheless requires reversal of the
trial court’s judgment, for reasons of policy. . . . In addition, the plain error
doctrine is reserved for truly extraordinary situations where the existence
of the error is so obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings. . . . Plain error is a doctrine
that should be invoked sparingly. . . . A party cannot prevail under plain
error unless it has demonstrated that the failure to grant relief will result
in manifest injustice. . . . Implicit in this very demanding standard is the
notion . . . that invocation of the plain error doctrine is reserved for occa-
sions requiring the reversal of the judgment under review. . . . [Thus, a]
defendant cannot prevail under [the plain error doctrine] . . . unless he
demonstrates that the claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest injustice.’’ (Internal
quotation marks omitted.) State v. Terry, 161 Conn. App. 797, 820, 128 A.3d
958 (2015), cert. denied, 320 Conn. 916, 131 A.3d 751 (2016).
13
‘‘It is well settled that [a]ppellate courts possess an inherent supervisory
authority over the administration of justice. . . . The exercise of our super-
visory powers is an extraordinary remedy to be invoked only when circum-
stances 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 the particular trial but also for the perceived fairness of the
judicial system as a whole. . . .
‘‘We recognize that this court’s supervisory authority is not a form of free-
floating justice, untethered to legal principle. . . . Rather, the rule invoking
our use of supervisory power is one that, as a matter of policy, is relevant
to the perceived fairness of the judicial system as a whole, most typically
in that it lends itself to the adoption of a procedural rule that will guide
lower courts in the administration of justice in all aspects of the [adjudica-
tory] process. . . . Indeed, the integrity of the judicial system serves as
a unifying principle behind the seemingly disparate use of [this court’s]
supervisory powers.’’ (Citations omitted; internal quotation marks omitted.)
In re Yasiel R., 317 Conn. 773, 789–90, 120 A.3d 1188 (2015).
14
In his principal brief, the defendant repeatedly characterizes the jury’s
inability to reach a unanimous verdict on the murder and assault charges
as a ‘‘verdict.’’ Curiously, in his reply brief, the defendant states that the
court could not ‘‘independently render a determination of guilt [with respect
to the murder and assault charges] that conflicts with the jury’s findings,
here the failure of the jury to reach a verdict at all.’’ Also, in his reply brief,
the defendant argues for the first time that the court’s findings with respect
to the murder and assault charges was improper because, after the court
declared a mistrial, the court was bound to presume that he was innocent
of these charges. The flaw in the defendant’s argument is that the court did
not find the defendant guilty of murder or assault. See footnote 9 of this
opinion. The defendant was presumed innocent of each and every offense
with which he stood charged, including the offense on which the court
found him guilty, namely, criminal possession of a firearm. The record
reflects, however, that in concluding that the state satisfied its burden of
proof with respect to that offense, the court properly considered all of the
relevant evidence in its entirety, including the ample evidence that he was
the shooter.
15
We conclude that the defendant’s claim rests on the faulty factual prem-
ise that the jury made any findings of fact. We observe that, even if the jury
had reached a verdict that was contrary to the finding reached by the court,
such an occurrence would not lead us to conclude that the inconsistency
rendered the outcome illogical or unreasonable. See State v. Knight, 266
Conn. 658, 674, 835 A.2d 47 (2003) (inconsistency between factual determina-
tions of separate fact finders as to different, albeit similar, charges does
not render outcome illogical or unreasonable).
16
Beyond arguing that the court impermissibly found that he was the
shooter, the defendant also argues that the court impermissibly ‘‘found [him]
guilty of criminal possession of a firearm based on its determination that
[he] was in fact the shooter.’’ This argument also is belied by the record
because, in advancing the argument, the defendant does not rely on the
court’s statements at the time that it found him guilty of the offense, but
on the court’s statements at the time of sentencing, which occurred months
later. Moreover, beyond arguing that the court could not make findings that
contravene those made by the jury, the defendant does not demonstrate
why it was improper for the court to rely on the evidence in its entirety,
including the evidence that strongly supported a finding that he was the
shooter, in reaching its verdict.
17
At the time of sentencing, the court stated in relevant part: ‘‘I’m not
here to sentence [the defendant] for murder or . . . assault in the first
degree. The jury was hung . . . on those counts. The state apparently plans
to retry [the defendant], and he’ll have his opportunity . . . to be tried by
a jury. I’m here to sentence him for the crimes of carrying a pistol without
a permit and criminal possession of a firearm, but the circumstances sur-
rounding the possession of that gun matter, and the circumstances sur-
rounding the possession of that gun involve a shooting.
‘‘I found, having heard the evidence, that he possessed that gun when he
was not legally entitled to do so because he was a convicted felon, and I
also found that he fired that gun and killed Taijhon Washington and left
Travon Washington with a bullet in his head that remains there today. So,
it’s incumbent upon me to factor those circumstances into an appropriate
sentence here. . . .
‘‘[Y]ou committed an extremely impulsive and rash act. I . . . don’t find
there was any premeditation in it. I don’t think you were driving around
looking for the Washington brothers, but when you came upon them, you
had a gun in your possession and . . . you used it. So, if this were merely
a possession case without the circumstances of the gun having been used
in the fashion that it was used, this sentence would be very different than
the sentence that I think is appropriate, given the seriousness of the offenses
and the circumstances in which the gun . . . was used.’’ The court subse-
quently imposed its sentence. See footnote 1 of this opinion.