State v. Andino

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STATE OF CONNECTICUT v. VICTOR ANDINO
(AC 38475)
DiPentima, C. J., and Keller and Prescott, Js.
Argued February 14—officially released June 20, 2017
(Appeal from Superior Court, judicial district of New
Britain, Alander, J.)
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Brett J. Salafia, senior assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Victor Andino, appeals
from the judgment of conviction, rendered following a
jury trial, of assault in the first degree in violation of
General Statutes § 53a-59 (a) (1) and criminal posses-
sion of a firearm in violation of General Statutes § 53a-
217 (a) (1). Additionally, following a plea of nolo conten-
dere, the trial court found the defendant guilty of being
a persistent serious felony offender under General Stat-
utes § 53a-40 (c).1 The defendant claims (1) that the
court improperly denied his motion to suppress an
inculpatory oral statement that he provided to the police
and (2) that the evidence did not support his conviction
of criminal possession of a firearm. We affirm the judg-
ment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On September 29, 2010, the defendant and the victim,2
Jorge David Aponte, were arguing with one another
in the parking lot of an apartment complex on South
Whiting Street in New Britain. The argument between
the two men, portions of which were overheard and
witnessed by residents who lived nearby,3 was related
to the victim’s illegal drug selling activities in the neigh-
borhood. At one point during the argument, the victim
was holding a large stick and the defendant was holding
what appeared to be a machete or a knife. The defen-
dant threatened to shoot the victim, and, ultimately, he
shot the victim in his left shoulder before fleeing the
scene. Gunshots were overheard by multiple witnesses
around the time of the defendant’s argument with the
victim and in the vicinity of where the defendant and
the victim were arguing. The victim drove away from
the scene and received medical treatment for his injury,
which was not life threatening, at Hartford Hospital.
A bystander notified the police that a shooting had
occurred and, following an investigation of the shoot-
ing, New Britain police obtained an arrest warrant for
the defendant. On October 18, 2011, the police located
the defendant and executed the arrest warrant. The
defendant waived his Miranda rights4 and, during an
interview conducted by Jonathan Webster, then a detec-
tive with the New Britain Police Department, the defen-
dant stated that, during an argument with the victim
related to money and the sale of drugs in the neighbor-
hood, he shot the victim. The defendant stated that he
was unhappy that the victim was selling drugs in an
area that he and others controlled. He stated that he
shot the victim after the victim charged at him with a
large stick. Because the defendant did not want others
to know that he had provided a statement to the police,
however, he declined to provide the police with a writ-
ten statement. Additional facts will be set forth as nec-
essary.
I
First, the defendant claims that the court improperly
denied his motion to suppress the oral statement that
he provided to the police. We disagree.
The following additional facts are relevant to the
present claim. By written motion filed on August 6,
2014, the defendant moved to suppress ‘‘any and all
statements made by [him] . . . including, but not lim-
ited to, statements made regarding his alleged involve-
ment in a shooting in September, 2010.’’ In relevant
part, the defendant alleged in the motion to suppress
that he had been subjected to custodial interrogation
by Webster and that ‘‘Webster never notified [him] . . .
of his constitutional rights as required by Miranda v.
Arizona, [384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966)].’’ On September 2, 2014, the court held a
hearing on the motion during which it received docu-
mentary evidence and heard testimony from both Web-
ster and the defendant.
In relevant part, Webster testified that, on October 18,
2011, he and another detective observed the defendant
enter a building in New Britain. After the defendant
exited the building, the defendant laid down in the back-
seat of a truck. The police stopped the truck as it was
being driven away. The police placed the defendant
under arrest and transported him to the police depart-
ment. The defendant was taken to an interview room
in the detective bureau, where he met with Webster.
During the interview, the defendant was restrained in
leg shackles. Webster testified that he began his conver-
sation with the defendant by advising him of his
Miranda rights. He testified that, initially, his advise-
ment was verbal in nature, but that he subsequently had
the defendant complete a Miranda rights advisement
form. Webster testified that he communicated with the
defendant in English, and that he wrote the defendant’s
name, address, date of birth, educational information,
and information about the defendant’s reading and writ-
ing skills on the form. Webster read each right listed
on the Miranda rights advisement form to the defen-
dant, and the defendant wrote his initials next to each
listed right.
Webster testified that, thereafter, he asked the defen-
dant if he was willing to speak to him. Webster testified
that the defendant stated that he was willing to talk to
him, and that, in Webster’s presence, the defendant
signed the bottom portion of the Miranda rights advise-
ment form, thereby indicating that he had been advised
of, understood, and freely waived his Miranda rights.5
Webster testified that he did not write the defendant’s
initials on the form or sign the defendant’s name on
the form. Webster testified, however, that he signed his
own name on the form.6 The court admitted the signed
Miranda rights advisement form into evidence.
During the interview, in Webster’s presence, the
defendant also signed a uniform arrest report that,
among other things, reflected personal information
about the defendant as well as the charges being
brought against him. Webster signed the uniform arrest
report, as well. The court admitted the signed report
into evidence.
Webster testified further that, after the defendant
waived his Miranda rights, the defendant told him that
on the day of the shooting he had gotten into an argu-
ment with the victim about drug sales and money.
According to Webster, the defendant related to him that
the argument escalated, the victim was armed with a
machete and an item that the defendant described as
a long board and, ultimately, the defendant shot the
victim. During the interview, the defendant was pro-
vided with food and water, and he was permitted to
use the bathroom. At the conclusion of the interview,
the defendant stated that the information that he pro-
vided was true and accurate.
At the suppression hearing, the defendant testified
that his Miranda rights were not explained to him and
that he did not initial or sign the Miranda rights advise-
ment form or the uniform arrest report. The defendant
testified that he did not sign any paperwork at the police
department on October 19, 2011. The court admitted
into evidence two examples of the defendant’s signa-
ture. One example came in the form of an identification
card that he claimed to have signed five years prior to
his testimony. The other example came in the form of
a blank sheet of paper that he signed during his testi-
mony at the suppression hearing. The defendant testi-
fied that, in relation to the events at issue, he was not
questioned until he arrived at the police headquarters
and that nobody had advised him of his Miranda rights.
Moreover, the defendant testified that he did not make
the statements that Webster attributed to him, and that
he had not stated that he shot anyone. Instead, the
defendant testified that, while he was in police custody,
he merely asked Webster why he had been arrested.
During argument on the motion to suppress, defense
counsel argued that the evidence demonstrated that the
police had not advised the defendant of his Miranda
rights, either orally or in writing, prior to his interroga-
tion. Defense counsel argued that the defendant’s signa-
tures on the Miranda rights advisement form and the
uniform arrest report, both of which, Webster testified,
had been signed by the defendant in his presence, did
not appear to match the defendant’s signature on his
identification card, the signature that he provided dur-
ing his testimony, or the defendant’s signatures that
appeared on two other uniform arrest reports that were
introduced into evidence by the state. Defense counsel
argued that the defendant had not been advised of his
rights as Webster testified, the defendant had not been
afforded an opportunity to sign the documents at issue,
and the documents at issue had been ‘‘signed by some-
body else.’’ Defense counsel argued that the signatures
appeared to have been written by the same person,
namely, Webster, and that this had been done because
the police had an interest in filling up ‘‘this hole’’ in
their case against the defendant.
The prosecutor argued that Webster credibly testified
at the suppression hearing that he had advised the
defendant of his Miranda rights, that the Miranda
rights advisement form memorialized that the defen-
dant was so advised, and that the form reflected that
the defendant waived his Miranda rights. The court
asked the prosecutor to comment on defense counsel’s
argument that the signatures on the forms at issue in
the present case were dissimilar to the other examples
of the defendant’s signature that were in evidence. The
prosecutor acknowledged that the signatures appeared
to be ‘‘somewhat different,’’ but argued that, in light of
Webster’s testimony, any dissimilarity did not support
a conclusion that the defendant did not sign the forms
at issue. Also, the prosecutor argued that, if the police
had fabricated the defendant’s confession, it is unlikely
that they would have concocted the ‘‘halfway self-
defense claim’’ reflected in the confession.
Following argument by counsel, the court orally ren-
dered its decision. In relevant part, the court stated:
‘‘[B]ased upon the evidence presented, I find the follow-
ing facts: that on October 18, 2011, at approximately
4:30 p.m. . . . the defendant was at the New Britain
police station in the presence of . . . Webster . . .
[and] I credit Detective Webster’s testimony that prior
to questioning [the defendant] with respect to an inci-
dent that occurred on September 29, 2010, at South
Whiting Street, that he verbally advised [the defendant]
of his Miranda rights, all of his rights; that [the defen-
dant] spoke English; that he understood English, the
verbal, oral English; and that he voluntarily waived
those Miranda rights and then spoke to Detective Web-
ster about the incident on September 29, 2010.
‘‘I do agree with [defense counsel’s argument that]
those signatures are not the same. They don’t appear
to be the same. However, I don’t find that difference to
be determinative here as to the truthfulness of Detective
Webster’s testimony. I find that he did verbally advise
[the defendant] of his Miranda rights, which [the defen-
dant] voluntarily waived and subsequently gave his
statement. So, for those reasons, the motion to suppress
is denied.’’
During the pendency of the present appeal, the defen-
dant asked the court to articulate with respect to several
of its findings. Relevant to the present claim, the defen-
dant asked the court to articulate whether he had ini-
tialed or signed the Miranda rights advisement form
and whether Webster had testified falsely that the defen-
dant had initialed and signed the form. The court
granted articulation with respect to these inquiries and,
in an articulation dated June 30, 2016, the court stated
in relevant part: ‘‘The only factual finding that I made
with respect to the signatures on the defendant’s [identi-
fication] card and the exemplar and the signature on
the defendant’s waiver of rights form is that the signa-
tures did not appear to be the same. I did not find that
the signatures were made by two different individuals.
I also did not find that Detective . . . Webster testified
falsely that the defendant initialed and signed the waiver
of rights form. I found that Detective Webster verbally
advised the defendant of his Miranda rights and that
the defendant voluntarily and knowingly waived those
rights prior to speaking with Detective Webster.’’
At trial, following the court’s denial of the defendant’s
motion to suppress, the state presented evidence of
the defendant’s inculpatory statements to the police. In
relevant part, Webster testified that after he advised
the defendant of his Miranda rights both orally and in
writing, the defendant waived his Miranda rights and
answered questions about his involvement in the vic-
tim’s shooting. Webster testified that the defendant told
him that the defendant and some of his associates were
engaged in an ongoing dispute with the victim concern-
ing money and the fact that the victim was selling drugs
illegally in what they believed was ‘‘their drug territory
and taking their sales from them.’’ Webster testified, as
well, that the defendant stated to him that he was
involved in a physical altercation with the victim on
September 29, 2010, the victim was armed with a
machete and a large stick during the altercation, and
that, using a firearm that one of his associates, Richard
Ruiz, had given to him, ‘‘he shot [the victim] because
[the victim] was coming at him.’’ Webster testified that
the defendant told him that he fled the area after the
victim fled.
The defendant challenges the court’s finding that he
was advised of and waived his Miranda rights. The
defendant’s challenge to the court’s ruling, thus, focuses
on the court’s resolution of a question of fact that was
essential to a legal determination that implicated the
defendant’s constitutional rights. ‘‘To be valid, a
[Miranda] waiver must be voluntary, knowing and intel-
ligent. . . . The state has the burden of proving by
a preponderance of the evidence that the defendant
voluntarily, knowingly and intelligently waived his
Miranda rights. . . . Whether a purported waiver sat-
isfies those requirements is a question of fact that
depends on the circumstances of the particular case.’’
(Citations omitted; internal quotation marks omitted.)
State v. Reynolds, 264 Conn. 1, 50, 836 A.2d 224 (2003),
cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed.
2d 254 (2004). There is no requirement in our law that
a valid Miranda waiver must be evidenced by a written
waiver. ‘‘[T]he state must demonstrate: (1) that the
defendant understood his rights, and (2) that the defen-
dant’s course of conduct indicated that he did, in fact,
waive those rights. . . . In considering the validity of
[a] waiver, we look, as did the trial court, to the totality
of the circumstances of the claimed waiver.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Santiago, 245 Conn. 301, 320, 715
A.2d 1 (1998).
The defendant acknowledges the established propo-
sition that this court is obligated to defer to the trial
court with respect to matters related to the credibility of
witnesses. The defendant argues that the court’s factual
findings with respect to the waiver issue are clearly
erroneous on the ground that the court, in ruling on
the motion to suppress, essentially made contradictory
factual findings in that it found Webster to be a credible
witness and that the signature on the Miranda rights
advisement form did not appear to be the same as the
other signatures of the defendant that were admitted
into evidence. Any difference in the appearance of the
signatures, the defendant posits, undermines Webster’s
testimony that the defendant signed the form. Thus, the
defendant argues that although the court found that
Webster had testified in a credible manner, in light of
the disparity in the appearance of the signatures at
issue, it nonetheless should not have relied on any of
Webster’s testimony when making its factual findings.
The defendant argues: ‘‘The court found that the defen-
dant had waived his Miranda rights based solely on
Webster’s testimony. . . . However, the court also
found that the signature on the waiver of rights form
was ‘not the same’ as four known samples of the defen-
dant’s signature (including an in-court exemplar). . . .
This disparity casts grave doubt on Webster’s testi-
mony; and the conflict between the court’s acknowl-
edgement of that disparity and its belief of Webster
makes its ultimate finding of a valid waiver clearly erro-
neous. Moreover, the error was not harmless beyond
a reasonable doubt because the defendant’s statements
[to Webster] were the linchpin of the state’s case: no
one saw the defendant shoot [the victim]; the police
never recovered a gun; and no physical evidence tied
the defendant to the crime.’’ (Citations omitted.) The
defendant argues that ‘‘[a] scrupulous examination of
the record should leave this court with the ‘definite and
firm conviction’ that the defendant did not voluntarily,
knowingly, and intelligently waive his Miranda rights.’’
In challenging the court’s ultimate reliance on Webster’s
version of events, the defendant argues: ‘‘It is clearly
erroneous for a trial court to make a finding that its
other findings contradict . . . or that is inescapably
incongruent with its decision to credit a witness’ testi-
mony. . . . While the trial court may choose between
conflicting testimony of different witnesses . . . the
substantial evidence requirement remains.’’ (Citations
omitted; internal quotation marks omitted.)
‘‘[T]he standard of review for a motion to suppress
is well settled. A finding of fact will not be disturbed
unless it is clearly erroneous in view of the evidence
and pleadings in the whole record . . . . [W]hen a
question of fact is essential to the outcome of a particu-
lar legal determination that implicates a defendant’s
constitutional rights, [however] and the credibility of
witnesses is not the primary issue, our customary defer-
ence to the trial court’s factual findings is tempered by
a scrupulous examination of the record to ascertain
that the trial court’s factual findings are supported by
substantial evidence. . . . [W]here the legal conclu-
sions of the court are challenged, [our review is plenary,
and] we must determine whether they are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision . . . .
‘‘Notwithstanding our responsibility to examine the
record scrupulously, it is well established that we may
not substitute our judgment for that of the trial court
when it comes to evaluating the credibility of a witness.
. . . It is the exclusive province of the trier of fact to
weigh conflicting testimony and make determinations
of credibility, crediting some, all or none of any given
witness’ testimony. . . . Questions of whether to
believe or to disbelieve a competent witness are beyond
our review. As a reviewing court, we may not retry the
case or pass on the credibility of witnesses. . . . We
must defer to the trier of fact’s assessment of the credi-
bility of the witnesses that is made on the basis of its
firsthand observation of their conduct, demeanor and
attitude.’’ (Citation omitted; internal quotation marks
omitted.) State v. Kendrick, 314 Conn. 212, 222–23, 100
A.3d 821 (2014); State v. DeMarco, 311 Conn. 510, 519–
20, 88 A.3d 491 (2014). ‘‘The question of the credibility
of witnesses is for the trier to determine. . . . Where
testimony is conflicting the trier may choose to believe
one version over the other . . . as the probative force
of the evidence is for the trier to determine.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Madera, 210 Conn. 22, 37, 554 A.2d 263 (1989); see
also Normand Josef Enterprises, Inc. v. Connecticut
National Bank, 230 Conn. 486, 507, 646 A.2d 1289(1994).
‘‘A finding of fact is clearly erroneous when there is
no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Because it is the trial court’s function to weigh
the evidence and determine credibility, we give great
deference to its findings. . . . In reviewing factual find-
ings, [w]e do not examine the record to determine
whether the [court] could have reached a conclusion
other than the one reached. . . . Instead, we make
every reasonable presumption . . . in favor of the trial
court’s ruling.’’ (Internal quotation marks omitted.)
State v. Ray, 290 Conn. 602, 631, 966 A.2d 148 (2009).
The United States Supreme Court has explained:
‘‘When findings are based on determinations regarding
the credibility of witnesses, Rule 52 (a) [of the Federal
Rules of Civil Procedure]7 demands even greater defer-
ence to the trial court’s findings; for only the trial judge
can be aware of the variations in demeanor and tone
of voice that bear so heavily on the listener’s under-
standing of and belief in what is said. . . . This is not
to suggest that the trial judge may insulate his findings
from review by denominating them credibility determi-
nations, for factors other than demeanor and inflection
go into the decision whether or not to believe a witness.
Documents or objective evidence may contradict the
witness’ story; or the story itself may be so internally
inconsistent or implausible on its face that a reasonable
factfinder would not credit it. Where such factors are
present, the court of appeals may well find clear error
even in a finding purportedly based on a credibility
determination. . . . But when a trial judge’s finding is
based on his decision to credit the testimony of one of
two or more witnesses, each of whom has told a coher-
ent and facially plausible story that is not contradicted
by extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.’’ (Cita-
tions omitted; footnote added; internal quotation marks
omitted.) Anderson v. Bessemer City, 470 U.S. 564, 575,
105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985).
Consistent with the principles set forth previously
in this opinion, we defer to the court’s assessment of
Webster’s credibility.8 That does not mean, however,
that in similar fashion we defer to the court’s ultimate
factual finding with respect to the conduct underlying
the purported waiver. Such finding must be supported
by substantial evidence. With respect to the court’s
factual findings, we scrupulously have examined the
record and conclude that they are supported by substan-
tial evidence. Webster testified concerning the verbal
advisement procedures he employed. Specifically, Web-
ster testified that he sat down next to the defendant, he
read each right listed on the Miranda rights advisement
form to the defendant, he asked the defendant if he
understood each right and he asked the defendant if he
had any questions. Thereafter, he asked the defendant if
he was still willing to talk to him. Webster testified
that, in addition to this verbal advisement procedure,
he asked the defendant if he understood each right,
and to place his initial next to each right on the Miranda
rights advisement form. Webster’s testimony concern-
ing the advisement procedures he employed, which the
court found to be credible, and the Miranda rights
advisement form, which was consistent with Webster’s
testimony and introduced into evidence by the state,
amply support the court’s factual finding that the defen-
dant verbally was advised of and knowingly waived his
Miranda rights by speaking to Webster after having
been advised of his rights. To the extent that the defen-
dant argues that the court’s findings, viewed as a whole
and in light of all of the evidence presented, should
undermine our confidence in the trial court’s fact-find-
ing process or leave us with the definite and firm convic-
tion that the court made a factual mistake, we are
not persuaded.
At the heart of the defendant’s argument is what he
describes as the ‘‘ ‘inescapably incongruent’ ’’ reliance
by the court on Webster’s testimony and its finding that
the signature on the Miranda rights advisement form
and the other examples of the defendant’s signature
‘‘did not appear to be the same.’’ (Emphasis added.) In
contrast with the arguments advanced by the defendant
before the trial court, the court did not draw any sinister
inferences from its finding with respect to the distinc-
tiveness of the signature on the form. Consistent with
the arguments the defendant advanced before the trial
court, his argument is based on the premise that any
disparity with respect to the appearance of the signature
and the appearance of the other signatures in evidence
suggests factual error because it necessarily conflicts
with the court’s subordinate finding that Webster’s testi-
mony was truthful. Thus, the defendant suggests that,
once the court found that the signatures appeared to
be distinct, it could only have found that a valid waiver
did not occur.
The court, however, expressly stated that it did not
find that the signatures at issue were made by two
different individuals and did not find that Webster had
testified falsely. The court did not find that the defen-
dant’s signature had been forged, let alone that Webster
had forged the signature. Certainly, it is not unusual
for a court to be confronted with conflicting evidence.
To the extent that any conflict existed between the
court’s subordinate findings of fact with respect to
whether the defendant signed the waiver portion of
the Miranda advisement form, in its evaluation of the
ultimate factual issue before it, the court reasonably
could have reconciled its subordinate findings by infer-
ring that, whether intentionally or unintentionally, the
same person, at different times and under different cir-
cumstances, may generate multiple signatures that
appear to be dissimilar.
Moreover, whether the defendant signed the
Miranda rights advisement form was not dispositive
of the waiver issue. As we stated previously in this
opinion, the state was not obligated to prove that a
written waiver had been made. The court resolved the
waiver issue by relying solely on the evidence that Web-
ster verbally had advised the defendant of his rights,
asked the defendant if he understood them, and asked
the defendant if he wished to speak with him. There
was evidence that the defendant’s course of conduct
during the interview process indicated that he had
waived his Miranda rights after Webster orally advised
him of such rights. The court based its finding that a
valid waiver occurred on the evidence that Webster
verbally advised the defendant of his Miranda rights
and, thereafter, the defendant indicated that he was
still willing to speak with Webster. Thus, the court’s
general observation with respect to the appearance of
the signatures at issue does not undermine our confi-
dence in the correctness of its factual findings that were
consistent with Webster’s testimony.
II
Next, the defendant claims that the evidence did not
support his conviction of criminal possession of a fire-
arm. We disagree.
The following additional facts are relevant to this
claim. As discussed in part I of this opinion, the defen-
dant moved to suppress the statements that he made
to Webster. The defendant’s motion was grounded in
his claim, of a constitutional nature, that his statement
was made while he was in police custody, while he was
subjected to a custodial interrogation, and when he
had not been advised of his Miranda rights. The court
denied the motion.
At the close of the state’s case-in-chief, the defendant
moved for a judgment of acquittal as to both counts.
Defense counsel argued that the state had not disproven
self-defense beyond a reasonable doubt and that ‘‘the
only evidence that we have of any violence or alterca-
tion . . . comes in from the defendant’s own testi-
mony.’’ Defense counsel argued: ‘‘If you want to
discount [the defendant’s] statement, then there’s [no]
evidence that anybody actually shot [the victim].
There’s no other witness that corroborates any shoot-
ing, short of the statement by [the defendant].’’ The
court denied the motion after determining (1) that the
state had presented evidence, other than the defen-
dant’s statement to the police, to demonstrate that the
defendant intentionally shot the victim, and (2) that the
jury reasonably could disbelieve that the defendant had
acted in self-defense.
Following the jury’s verdict, the defendant filed a
second motion for a judgment of acquittal,9 in which
he sought a judgment of acquittal or, in the alternative,
a new trial. Therein, the defendant argued that, with
respect to his conviction of criminal possession of a
firearm, ‘‘[t]he sole evidence that [he] possessed any
firearm introduced by the state came through [his] own
unsworn, unwritten statement to . . . Webster’’ and
that ‘‘[n]o other corroborating evidence of possession
was introduced, nor could be considered by the jury.’’
In this motion, the defendant explicitly challenged the
admission of his incriminatory statement. The defen-
dant argued that, ‘‘[p]ursuant to the corpus delicti rule
and the fact that the gravamen of the conviction for
violating § 53a-217 rests in the possession, not the use,
of the firearm, [his] statement should not have been
admitted against him without corroborating evidence
. . . .’’ During oral argument concerning the motion,
the prosecutor argued that the state had presented suffi-
cient evidence to corroborate the statement in that it
presented evidence that supported a finding that, on
September 29, 2010, the defendant and the victim were
engaged in a dispute, a bystander overheard the defen-
dant threaten to shoot the victim, multiple bystanders
heard gunshots, a bystander was observed picking up
what appeared to be spent shells from the ground where
the shooting occurred, and the victim received medical
treatment for a gunshot wound in his shoulder. More-
over, the prosecutor argued that there was evidence
that the defendant told Webster that he obtained the
gun used in the shooting from his associate, Ruiz.
After setting forth the appropriate legal standard, the
court stated: ‘‘There is corroborative evidence, which
the jury could have credited, and apparently did, to
support [the defendant’s statement that he possessed
a firearm], and [it is] as follows: the evidence that [the
victim] was shot by a gun; the evidence that the shots
were fired that day in the vicinity of the defendant; the
defendant was identified as being on-site at that time
on that day; there’s evidence of a motive . . . that [the
victim] and [the defendant] were in [a] dispute over
who could be selling drugs in that area; the statement
by the defendant . . . that he was going to shoot [the
victim]; that the witnesses heard gunshots . . . all of
that corroborates that [the defendant] shot [the victim]
with a gun, and in order to shoot him he had to have
held it and possessed it. So, there is in fact corroborative
evidence supporting his statement.
‘‘This isn’t a case where [the defendant] showed up
at a police station and said, I shot somebody, I shot
[the victim], and nobody found [the victim] with any
gunshots, nobody knew of any gunshots, nobody knew
of anybody firing a gun. This is totally different from
that situation, which is the situation that the corpus
delicti rule is designed to prevent, convicting someone
based solely on a naked statement; that’s not this case.
So, for the reasons stated, [the] motion for [a] judgment
of acquittal is . . . denied.’’
In the present claim, the defendant reiterates in sub-
stance the corpus delicti claim that he arguably raised
in his motion for a judgment of acquittal at the close
of the state’s case-in-chief and, more clearly raised in
his postverdict motion for a judgment of acquittal. Con-
ceding that the statement sufficiently was corroborated
for purposes of the assault in the first degree conviction,
his claim is directed at the use of the statement for
purposes of proving the conviction of criminal posses-
sion of a firearm. The state, urging this court to conclude
that the present claim is an unpreserved claim that is
not reviewable, argues that the claim does not challenge
the sufficiency of the evidence, but that, at its essence,
it challenges the court’s admission of the defendant’s
inculpatory statement. The state argues that the corpus
delicti rule is a rule of admissibility and, in accordance
with relevant precedent, is properly raised at trial by
means of an objection to the admissibility of a defen-
dant’s inculpatory statement for lack of corroborative
evidence. At no point during the trial did the defendant
object to the admissibility of his statement on the basis
of the corpus delicti rule; he raised the corpus delicti
rule in the context of challenges to the evidentiary suffi-
ciency of the state’s case. The defendant, while
acknowledging that he did not raise the claim in his
motion to suppress, nonetheless argues that he pre-
served the claim because, on other grounds, he chal-
lenged the admissibility of his statement and, thereafter,
twice raised the corpus delicti issue in the context of
his motions for a judgment of acquittal. The defendant
argues that, in light of the fact that he raised the issue
before the trial court and the trial court addressed the
issue on its merits, the claim is not unpreserved and
the claim does not reflect an attempt to ambush the
trial court by means of raising a claim for the first time
on appeal.
As the defendant acknowledges, in State v. Leniart,
166 Conn. App. 142, 151, 140 A.3d 1026, cert. granted,
323 Conn. 918, 150 A.3d 1149, and cert. granted, 323
Conn. 918, 149 A.3d 499 (2016),10 this court recognized
‘‘that under Connecticut law the corpus delicti rule is
an evidentiary rule regarding the admissibility of confes-
sions rather than a substantive rule of criminal law to
be applied in reviewing the sufficiency of the state’s
evidence.’’ With respect to the reviewability of corpus
delicti claims, the court stated: ‘‘A defendant who fails
to challenge the admissibility of the defendant’s confes-
sion at trial is not entitled to raise the corroboration
rule on appeal because (1) the evidentiary claim is not
of constitutional magnitude and, thus, cannot meet [the]
second prong [of State v. Golding, 213 Conn. 233, 239,
567 A.2d 823 (1989); see In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015) (modifying Golding’s third
prong)]11 . . . and (2) the rule does not implicate the
sufficiency of the state’s evidence.’’ (Citation omitted;
footnote altered.) State v. Leniart, supra, 168. With
respect to the corpus delicti claim before it, which was
raised for the first time on appeal in the context of a
sufficiency of the evidence claim, the court in Leniart
determined that ‘‘because the defendant did not object
to the admission of the confessions, he is not entitled
to raise the corroboration rule on appeal, and, thus, the
confessions are substantive evidence that can be used
in analyzing his sufficiency of the evidence claims.’’
Id., 168–69.
In Leniart, the court’s analysis of the corpus delicti
issue was guided by ample precedent that included our
Supreme Court’s decision in State v. Uretek, Inc., 207
Conn. 706, 713, 543 A.2d 709 (1988), and this court’s
decision in State v. Heredia, 139 Conn. App. 319, 324–25,
55 A.3d 598 (2012), cert. denied, 307 Conn. 952, 58
A.3d 975 (2013). State v. Leniart, supra, 166 Conn. App.
159–62. In Uretek, Inc., our Supreme Court declined to
review a corpus delicti claim because the defendant
‘‘failed to object to the admission of the statements at
trial or to move for a judgment of acquittal on the basis
of a lack of corpus delicti evidence’’; id., 160; see State
v. Uretek, Inc., supra, 713; and the claim did not warrant
the type of extraordinary review afforded unpreserved
constitutional claims because it did ‘‘not implicate a
fundamental constitutional right . . . .’’ State v. Ure-
tek, Inc., supra, 713. In Heredia, this court, expressly
relying on Uretek, Inc., declined to review a claim, not
raised in any manner before the trial court, that a ‘‘con-
viction must be set aside because the state failed to
sufficiently corroborate [a defendant’s] confessions
with independent evidence and, thus, failed to comply
with the rule of corpus delicti.’’ State v. Heredia, supra,
323. This court, recognizing that corpus delicti is an
evidentiary rule, adhered to the principle that ‘‘corpus
delicti does not implicate a fundamental constitutional
right sufficient to satisfy the standard set forth in Gold-
ing.’’12 Id., 324.
In State v. Robert H., 168 Conn. App. 419, 421, 146
A.3d 995, cert. granted, 323 Conn. 940, 151 A.3d 845(2016),13 a defendant raised a claim of evidentiary insuf-
ficiency. He argued that the evidence was insufficient
to support his conviction and, relying on the corpus
delicti rule, argued that an incriminatory statement that
he provided to the police, which was admitted into
evidence, should not be considered in an evaluation of
the evidence. Id., 421–22. This court stated in relevant
part: ‘‘Because this court recently held, in [Leniart]
. . . that the corroboration rule is solely a rule of admis-
sibility, we agree with the state that the defendant can-
not raise his unpreserved [corpus delicti] claim as part
of his claim of insufficient evidence. Accordingly, it
is not necessary for us to decide whether there was
substantial independent evidence tending to establish
the trustworthiness of the defendant’s confession, and
we will consider his unobjected-to statements in the
light most favorable to the state in evaluating his current
claim of evidentiary insufficiency.’’ Id., 422.
Although the present claim is couched as a claim of
evidentiary insufficiency, which is a type of claim that
is reviewable on appeal even if it is not preserved at
trial; see, e.g., State v. Revels, 313 Conn. 762, 777, 99
A.3d 1130 (2014), cert. denied, U.S. , 135 S. Ct.
1451, 191 L. Ed. 2d 404 (2015); it is essentially based
on a violation of a rule of admissibility, the corpus
delicti rule. A consideration of alleged error in the
admission of evidence does not have a proper role in
a consideration of the sufficiency of the evidence under-
lying the defendant’s conviction; State v. Leniart, supra,
166 Conn. App. 169 n.20; and our consideration of the
evidence properly would encompass the evidence as a
whole. We recognize that the defendant did not object
on the ground of insufficient corroboration at the time
of the admission of his inculpatory statement yet, in
light of the arguments that he raised in his motions for
a judgment of acquittal, it is not accurate to state that he
failed to raise the substance of the present evidentiary
claim before the trial court. Indeed, when the defendant
raised the issue in his motions for a judgment of acquit-
tal,14 the court carefully considered and rejected the
claim on its merits. For these reasons, we conclude
that the present claim is distinguishable from the corpus
delicti claims in Leniart and Robert H. that were raised
for the first time on appeal and, thus, were deemed to
be unreviewable.
We will consider the defendant’s claim as a challenge
to the court’s denial of his motions for a judgment
of acquittal. We observe that, because the defendant’s
corpus delicti claim is evidentiary in nature, however,
it would have been appropriate for the defendant to
have raised the claim seasonably, at the time that the
statement was offered in evidence by the state, rather
than in the context of challenging the sufficiency of
the evidence in the state’s case. By the time that the
defendant raised the present claim, the issue of the
admissibility of the statement had been decided and
the highly incriminatory evidence was before the jury.
Thus, even if the court, following the motion for a judg-
ment of acquittal made at the close of the state’s case-
in-chief, determined that it was appropriate to strike
the statement from the evidence, such a course of action
may not have provided significant relief to the defen-
dant. Additionally, by raising the corpus delicti claim
at the time that the evidence is offered, the state would
have been afforded a fair opportunity to have presented
evidence, if any, that it deemed necessary to corrobo-
rate the statement, if it had not presented such evidence
prior to offering the statement in evidence.
The present version of the corpus delicti rule, which
applies to the admission of inculpatory statements
involving all types of crimes, requires that the state
present corroborative evidence to establish the trust-
worthiness of the statement, but that such evidence
‘‘need not be sufficient, independent of the statements,
to establish the corpus delicti.’’ (Internal quotation
marks omitted.) State v. Hafford, 252 Conn. 274, 316,
746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136,
148 L. Ed. 2d 89 (2000). Having reviewed the evidence
in its entirety, we are persuaded that the court properly
concluded that the defendant’s inculpatory statement
was sufficiently corroborated and that the court prop-
erly considered it in evaluating the evidence that sup-
ported a finding of the defendant’s guilt of criminal
possession of a firearm. As the court correctly observed,
the state proved that the defendant’s statement was
trustworthy by means of evidence that demonstrated
that the defendant was at the scene of the crime, that
he was involved in an altercation with the victim, that he
threatened to shoot the victim, that a shooting occurred,
and that the victim sustained a gunshot injury. In deny-
ing the defendant’s motions for a judgment of acquittal,
the court adequately discussed the evidence that cor-
roborated the statement and, ultimately, demonstrated
that the state met its burden of proof. Accordingly, we
reject the defendant’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court sentenced the defendant to a total effective term of incarcera-
tion of twelve years, followed by twelve years of special parole.
2
The state presented evidence that, on September 29, 2010, following the
defendant’s argument with and subsequent shooting of the victim, New
Britain police officers met with the victim, who was obtaining medical
treatment for a gunshot wound at Hartford Hospital. At that time, a police
officer photographed the victim. Two photographs taken of the victim, while
he was in the hospital, were admitted into evidence. One of the police
officers testified that the victim was not cooperative in terms of being
photographed or in terms of providing the police officers with any informa-
tion relative to their investigation. The victim did not testify at trial.
3
Two bystanders recognized the defendant and identified him by his street
name, Lagrima. One bystander videotaped a small portion of the incident,
thereby capturing images of the victim, holding an object that appeared to
be a long stick, during the argument.
4
See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5
The bottom portion of the Miranda rights advisement form, entitled
‘‘WAIVER OF RIGHTS,’’ states: ‘‘I have been advised of my rights, I fully
understand these rights, I am willing to be interviewed and answer questions.
I do not wish the presence of an attorney at this time. I am waiving my
rights freely and voluntarily, without any fear, threat or promises made to
me.’’ The defendant’s signature appears on the form after this language.
6
Webster’s signature appears in the waiver portion of the Miranda rights
advisement form, in the space provided for ‘‘Officer Administering
Warnings.’’
7
Rule 52 (a) (6) of the Federal Rules of Civil Procedure provides: ‘‘Findings
of fact, whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due regard to
the trial court’s opportunity to judge the witnesses’ credibility.’’
8
We note that, in a letter of supplemental authority submitted to this
court by the defendant, he argues that this court’s recent decision in State
v. Brito, 170 Conn. App. 269, 154 A.3d 535, cert. denied, 324 Conn. 925, 155
A.3d 755 (2017), stands for the proposition that this court may evaluate
whether a trial court’s decision to credit the testimony of a witness is clearly
erroneous. In setting forth the claim raised by the appellant in Brito, this
court, quoting from the appellant’s brief, stated that the appellant’s claim
was whether ‘‘[t]he court’s decision to credit [a witness’] testimony . . .
was clearly erroneous . . . .’’ (Internal quotation marks omitted.) Id., 288.
After scrupulously examining the record, we reviewed the factual finding
that was based on the witness’ testimony and ‘‘[w]e conclude[d] that the
court’s factual determination with respect to [the witness’] observations
was supported by substantial evidence.’’ (Emphasis added.) Id., 289. In its
analysis of the claim, this court rejected the appellant’s argument that other
evidence contradicted the witness’ version of events, on which the trial
court relied, and, thus, it concluded that such evidence did not undermine
the trial court’s reliance on the witness’ testimony in making the finding at
issue. Id., 290–91. Accordingly, in Brito, this court afforded proper deference
to the trial court’s assessment of the witness’ credibility while focusing its
analysis on whether extrinsic evidence undermined the trial court’s decision
to rely on such testimony in determining the facts at issue in that case.
Accord Anderson v. Bessemer City, supra, 470 U.S. 575.
9
Following the jury’s verdict, the defendant filed a separate motion for
a judgment of acquittal in which he reasserted his argument that the state
failed to disprove beyond a reasonable doubt his claim that he acted in self-
defense. The court denied that motion, and the resolution of that separate
motion is not a subject of this appeal.
10
In Leniart, in response to the defendant’s petition for certification to
appeal, our Supreme Court granted certification to appeal limited to the
following issue: ‘‘Did the Appellate Court properly apply the corpus delicti
rule in concluding that there was sufficient evidence to sustain the defen-
dant’s convictions for murder and capital felony?’’ (Internal quotation marks
omitted.) State v. Leniart, 323 Conn. 918, 918–19, 149 A.3d 499 (2016).
Additionally, in response to the state’s petition for certification to appeal,
our Supreme Court granted certification to appeal with respect to four
issues, all of which are unrelated to this court’s resolution of the corpus
delicti claim. State v. Leniart, 323 Conn. 918, 150 A.3d 1149 (2016).
11
‘‘Under [Golding], a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error; (2) the claim
is of constitutional magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. . . . The first two Golding require-
ments involve whether the claim is reviewable, and the second two involve
whether there was constitutional error requiring a new trial.’’ (Emphasis
added; internal quotation marks omitted.) State v. Fabricatore, 281 Conn.
469, 476–77, 915 A.2d 872 (2007); see In re Yasiel R., supra, 317 Conn. 781.
12
With respect to the authority on which we rely in analyzing the present
claim, the defendant asserts that, because our Supreme Court has granted
certification to appeal in Leniart, we should not rely on that decision because
it ‘‘is not binding precedent while it is pending before the Supreme Court.’’
Although the defendant relies, in part, on Practice Book § 84-3, that rule
of practice does not support his novel argument because it pertains to
proceedings to enforce or carry out the judgment of this court while the
judgment is under further review; it does not address the precedential value
of this court’s decision while the judgment that emanated from it is under
further review. Practice Book § 84-3 provides that, following a grant of
certification by our Supreme Court, ‘‘proceedings to enforce or carry out the
judgment’’ of this court ‘‘shall be stayed . . . until the final determination of
the cause . . . .’’ (Emphasis added.) Practice Book § 84-3.
Additionally, the defendant relies on State v. Jordan, 151 Conn. App. 1,
35 n.9, 92 A.3d 1032, cert. denied, 314 Conn. 909, 100 A.3d 402 (2014), and
State v. Oral H., 125 Conn. App. 276, 280, 7 A.3d 444 (2010), cert. denied,
300 Conn. 902, 12 A.3d 573, cert. denied, 564 U.S. 1009, 131 S. Ct. 3003, 180
L. Ed. 2d 831 (2011). In Jordan, this court characterized another decision
of this court, in which certification to appeal had been granted by our
Supreme Court, as ‘‘lend[ing] little precedential support to the defendant’s
argument.’’ State v. Jordan, supra, 35 n.9. In Oral H., the defendant argued
that, after this court held that a statute was unconstitutional and our Supreme
Court granted certification to appeal from that decision, the state was pre-
cluded from charging him under the invalidated statute unless and until
such time as our Supreme Court upheld the constitutionality of the statute.
State v. Oral H., supra, 280. In rejecting the defendant’s argument, this court
stated that the premise of the defendant’s argument was flawed legally
because ‘‘a stay on the judgment of this court remained in effect until our
Supreme Court rendered its final determination of the cause . . . .’’ Id. In
Jordan, the court addressed the issue of precedential authority very briefly,
and it did not conclude, as the defendant suggests, that the precedent at
issue lacked any authority. Likewise, in Oral H., this court did not conclude
that the precedent at issue lacked any authority. Instead, invoking Practice
Book § 84-3, the court in Oral H. appears to have resolved the narrow issue
before it, concerning the enforceability of this court’s earlier decision to
invalidate a statute, by determining that, following the grant of certification
to appeal, the decision to invalidate the statute, like the judgment that flowed
from the decision, should not be given legal effect. Having reviewed these
authorities on which the defendant relies, we are not persuaded that they
are dispositive of his argument.
‘‘It is well settled that a denial of certification by an appellate court does
not signify approval of the decision from which certification to appeal is
sought.’’ A. Auidi & Sons, LLC v. Planning & Zoning Commission, 72
Conn. App. 502, 512, 806 A.2d 77 (2002), aff’d, 267 Conn. 192, 837 A.2d 748(2004). Similarly, there is no reason to conclude that a granting of certifica-
tion by our Supreme Court necessarily signifies disapproval of the decision
from which certification to appeal was granted. There is no authority to
support the proposition that a grant of certification by our Supreme Court
immediately invalidates or overrules this court’s decision; a grant of certifica-
tion stays further proceedings and subjects this court’s decision to further
review. In such circumstances, prior to a final determination of the cause
by our Supreme Court, a decision of this court is binding precedent on
this court. The defendant has not brought any persuasive authority to our
attention to demonstrate otherwise.
13
In Robert H., our Supreme Court granted certification to appeal limited
to the following issue: ‘‘Did the Appellate Court properly conclude that the
corpus delicti rule is merely a rule of admissibility, in determining that there
was sufficient evidence to sustain the defendant’s second conviction of risk
of injury to a child in violation of General Statutes § 53-21 (a) (1)?’’ (Internal
quotation marks omitted.) State v. Robert H., 323 Conn. 940, 151 A.3d 845(2016).
14
As noted previously, the defendant’s postverdict motion entitled ‘‘Motion
for Judgment of Acquittal’’ sought, in the alternative, a new trial.