STATE OF CONNECTICUT v. JEFFREY COVINGTON
AC 39141
Appellate Court of Connecticut
August 21, 2018
Alvord, Keller and Bright, Js.
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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 defendant 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 (
2. The defendant could not prevail on his unpreserved claim that his conviction 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 (1989), 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 impermissibly 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, carrying a pistol without a permit and criminal possession of a firearm, brought to the Superior Court in the judicial district of New Haven, where the charges of murder, 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 defendant 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 appellant (defendant).
Opinion
KELLER, J. The defendant, Jeffrey Covington, appeals from the judgment of conviction, rendered following a jury trial, of carrying a pistol without a permit in violation of
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 Robinson‘s automobile away from the intersection of Whalley 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 automobile 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 Taijhon 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. Approximately two minutes after they had passed the automobile, 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 Washington, who was walking just behind his half brother, Trayvon Washington, stated, “watch out, bro.” Then, several gunshots emanated from the automobile. Taijhon Washington suffered fatal gunshot injuries to his chest. Trayvon Washington was shot in the head,
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. Crenshaw 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 defendant 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, Margaret Flynn, that he happened to catch Taijhon Washington 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 consider 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.
“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant 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 reasonable and logical. . . .
“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence 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 evidence 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.
“This court has explained that carrying and possession are different concepts. . . . While a person can possess an item without carrying it on his person,
“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.”
In challenging the sufficiency of the evidence, the defendant argues that the state failed to present evidence from which the jury could have found that he possessed a pistol, as defined in
In arguing that the evidence was insufficient to convict him of carrying a pistol without a permit, the defendant 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 present 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 support 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
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 ‘finding’ 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 support 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 credible. 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 circumstantial evidence. Moreover, the defendant‘s arguments concerning the credibility of the state‘s witnesses were fodder for the jury‘s consideration.
The defendant acknowledges that the state presented evidence that, following the shooting, the defendant made several statements in which he incriminated himself 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 “ambiguous” and “feckless . . . .” It suffices to observe that, among the many statements attributed to the defendant that reflected his consciousness of guilt, the state presented 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 presented evidence that the defendant admitted to Flynn that he committed the shooting from Robinson‘s automobile 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 insufficient 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
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.
The state also presented testimony from Earl Williams, 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 testified that these impressions are “lands and grooves which are impressed [on a bullet] when the bullet travels 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 firearms,” but not shotguns, which he described as being “smooth bore. . . .” The prosecutor asked Earl Williams 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 concerning the bullets recovered from Taijhon Washington‘s body and Crenshaw‘s testimony regarding the defendant‘s possession of a handgun immediately after the shooting reasonably and logically supported a finding 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 testimony, they did not suggest that these words had peculiar, specialized, or technical meanings. We observe that these words are commonly and frequently used
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. Asherman, 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) (defining “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 reloading.” 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 defendant might not be able to hold the weapon with only one hand.” Id.
Moreover, Crenshaw testified that she observed Robinson 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 supported 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 carried 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 Crenshaw, 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 satisfied its burden of proving that the defendant carried a pistol, as defined in
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
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 Alternatively, he argues that the court‘s error rose to the level of plain error; Practice
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
On this unambiguous record, we readily conclude that the defendant is unable to demonstrate, for purposes of Golding, that the alleged constitutional violation 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 obvious 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
The defendant urges us to review this unpreserved claim pursuant to the bypass doctrine of Golding. Alternatively, 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.