STATE OF CONNECTICUT v. JOHN WILLIAM DAVIS, JR.
AC 35605
Appellate Court of Connecticut
March 31, 2015
Gruendel, Sheldon and Sullivan, Js.
Argued October 23, 2014
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Laila Haswell, assistant public defender, for the appellant (defendant).
Jonathan M. Sousa, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Lisa M. D’Angelo, assistant state’s attorney, for the appellee (state).
SHELDON, J. The defendant, John William Davis, Jr., appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of
The record reveals the following facts and procedural history. On the evening of July 24, 2011, at about 6:30 p.m., Officer Juan Ingles of the New Haven Police Department was stopped in his police cruiser on Poplar Street in New Haven, assisting another officer with a routine traffic stop, when he saw a grey Nissan with two male occupants coming down the street toward him. Ingles observed that the vehicle did not have a front marker plate and that the driver of the vehicle did not appear to be wearing a safety belt. As the vehicle approached, Ingles backed his cruiser into an adjacent driveway, from where he was able to see the vehicle’s rear marker plate. Using the mobile data terminal in his cruiser, Ingles ran a registration check on the plate number and determined that it was assigned to a vehicle of a different make and model. Ingles pulled out of the driveway behind the vehicle, activated his cruiser’s lights, and attempted to initiate a motor vehicle stop. The vehicle eventually came to a stop several blocks down the road, at the intersection of Poplar and Lombard Streets. Suspecting that the driver might attempt to flee once he got out of his vehicle, Ingles, using ‘‘a trick [he had] learned,’’ opened and slammed shut the door of his cruiser, but he did not actually exit his
The driver of the vehicle, followed by Ingles, traversed several roadways thick with pedestrian traffic at a high rate of speed and continued onto Interstate 91 northbound toward North Haven. After exiting the highway via the Middletown Avenue entrance ramp in New Haven, the driver continued to evade Ingles and several other police officers who had responded to Ingles’ call for assistance. As patrol cars converged on the Nissan, it struck a curb and came to a stop in front of a Taco Bell restaurant. The driver and the passenger immediately fled the vehicle on foot, followed by Ingles, who had exited his cruiser to give chase. Ingles pursued the driver to the area directly behind the Taco Bell. There, he saw the driver climb on top of a dumpster, where he removed what was ‘‘obviously . . . a gun’’ from his waistband and held it above his head. The driver thrust the gun into the dumpster, which was piled high with trash, and leapt to the ground. The driver then ran to a nearby residential property but was ultimately apprehended by Ingles when he reached a fence at the rear of the property that obstructed his path. Following a struggle with Ingles and two other officers, who had just arrived on the scene, the driver was handcuffed and taken into custody. Ingles subsequently identified the driver as the defendant from the state of Connecticut identification card that he was carrying on his person.
Once the defendant was in custody, Ingles returned to the dumpster where he had seen him stash the gun. Acting on information provided by Ingles, other New Haven police personnel, working with a K-9 unit trained to locate firearms, discovered a pistol at the bottom of the dumpster beneath several bags of garbage and some loose debris. Ingles identified it as the same pistol the defendant had been holding in his hand when he was standing on top of the dumpster. The gun was later examined by personnel from the state forensic science laboratory, firearm and tool mark section, who determined that it was a Smith and Wesson, Model SW 40F, semiautomatic pistol, with a barrel length of four and one half inches. The gun was inspected for fingerprints and swabbed for DNA testing, however, no latent fingerprints were recovered and no DNA test results were ever produced. The gun was also test fired and found to be operable.
The defendant was arrested and later charged by long form information with criminal possession of a firearm in violation of
I
The defendant first claims that the evidence was insufficient to sustain his conviction of the charges of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle. Specifically, he claims that the evidence was insufficient to establish that he lacked a valid permit to lawfully carry a pistol on the date of the incident, which is a required element of both crimes.6 We agree.
‘‘The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the [decision].’’ (Internal quotation marks omitted.) State v. Elsey, 81 Conn. App. 738, 743–44, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004).
‘‘[An] appellate court’s first task, in responding to a claim of evidentiary insufficiency, is to apply the traditional scope of review to the evidence. That requires that . . . we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier’s] verdict. . . . We note that a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.’’ (Citations omitted; internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 77, 993 A.2d 970 (2010).
This court’s inquiry necessarily begins with an exami-
With respect to the defendant’s conviction of the charge of unlawful possession of a weapon in a vehicle,
Sections 29-35 and 29-38 incorporate by reference the licensing statute,
Our Supreme Court, in State v. Beauton, 170 Conn. 234, 240, 365 A.2d 1105 (1976), in considering
Against this background, we consider the defendant’s claim that the state here failed to prove beyond a reasonable doubt that he lacked a valid permit to lawfully carry a pistol. Our analysis of the defendant’s claim is necessarily based upon the evidence presented at trial. On the first day of trial, Detective Vincent Imbimbo of the Connecticut State Police Firearms Unit testified for the state concerning the defendant’s alleged lack of a permit. Imbimbo reported that he had conducted a search of the state database to determine whether a state permit had been issued to a John William Davis, Jr., birthdate, November 29, 1998. Imbimbo also testified that his search had not disclosed a state permit issued to a person with that name and birthdate.12 On cross-examination, defense counsel questioned Imbimbo as to whether his search of the state database would have disclosed if a temporary, sixty day permit had ever been issued to the defendant by the local authority of his town of residence or place of business. The following colloquy on that issue ensued:
‘‘[Defense counsel]: Detective, when you say you
‘‘[Imbimbo]: The town permit would be valid for sixty days, at which point he could carry, you could not purchase off it.
‘‘[Defense counsel]: Okay. So is it possible that there would be a town permit issued separate and distinct from the state permit, which would be issued after one had obtained a town permit?
‘‘[Imbimbo]: Correct.
‘‘[Defense counsel]: So, indeed, [the defendant] may have in fact possessed a town permit and never in fact went to the next step to evolve to a state level; is that correct?
‘‘[Imbimbo]: Right. If he did have a temporary permit from the town it would be valid for sixty days from the issuance from the town.
‘‘[Defense Counsel]: Uhm-hm. And did you check the possibility of him having a town permit?
‘‘[Imbimbo]: I cannot check the possibility of him having a town permit.
‘‘[Defense Counsel]: You can’t.
‘‘[Imbimbo]: No.
‘‘[Defense Counsel]: So there is a possibility that at one point, perhaps even at this point during the time in question that he may have in fact possessed a valid town permit?
‘‘[Imbimbo]: Possibility, yes. If it never came to our office to get a valid state permit it’s a possibility.’’
On redirect examination of Imbimbo, the state sought clarification with respect to the permit process as follows:
‘‘[The Prosecutor]: So an individual can hold a temporary city permit for sixty days prior to it coming to your office?
‘‘[Imbimbo]: Correct. The town will do the background [check] on him, have him apply to the town, [and] the town will do their background [check] on him. Once the temporary permit is issued, if it is issued, it comes up to our office and we run everything all over again.’’ Following Imbimbo’s testimony, the state sought and was granted a continuance for the purpose of bringing in a second witness to testify regarding the issuance of a temporary sixty day permit.
The following day, Officer Manmeet Colon of the New Haven Police Department testified for the state that he had conducted a records check of the New Haven permit database and determined that the defendant did not have a temporary permit issued by the
As previously noted, the state was required, to meet its burden of proof on the charges of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle, to produce sufficient evidence to prove beyond a reasonable doubt that the defendant lacked a permit to carry a pistol on the date of the incident. The licensing statute,
The state concedes that there was no direct evidence as to the defendant’s residence or place of business. Nevertheless, it argues that the jury could have inferred that the defendant lacked a temporary state permit to carry a pistol on the date here at issue based upon other evidence presented at trial. In support of this contention, the state argues first that because there was evidence that Colon, a New Haven police officer, had searched the New Haven database for evidence as to whether the city had ever issued a temporary state permit to the defendant, the jury could infer from his efforts that the defendant was indeed a resident of New Haven. This argument lacks merit. Colon’s testimony reveals that he had merely conducted a search of the city’s database to determine if a temporary state permit
Next, the state argues that the defendant’s flight from pursuing police officers and the discarding of the pistol in the dumpster just before his arrest evidences his guilty conscience, and, thus, supports an inference that he did not possess a valid permit to carry a pistol. Our law is clear, however, that consciousness of guilt evidence cannot be relied on to prove the required substantive elements of a crime. See State v. Bell, 113 Conn. App. 25, 50, 964 A.2d 584, cert. denied, 291 Conn. 914, 969 A.2d 175 (2009). The defendant’s conduct on the date of the incident, even if indicative of consciousness of guilt, cannot, without impermissible speculation, relieve the state of all or any portion of its burden of proving that he lacked a valid permit to carry a pistol.
Finally, the state argues, based on its reading of
With respect to the state’s reliance on
To obtain the challenged conviction, the state was tasked with producing sufficient evidence for the jury to find that the defendant lacked a permit to carry the pistol on the date of the incident. In the present case, ‘‘the state was not faced with an impossible task in sustaining its burden of proof as to the essential elements of the crime with which the defendant was charged.’’ State v. Beauton, supra, 170 Conn. 242. The permit element is easily determined and susceptible to proof. In spite of this, there is a dearth of evidence to establish that element in this case. ‘‘An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.’’ State v. Hill, 201 Conn. 505, 512, 523 A.2d 1252 (1986). Here, the state failed to prove an essential element of §§ 29-35 and 29-38, and, thus, the defendant’s conviction of those charges cannot stand.16
II
We next consider the defendant’s claim that the trial judge improperly assisted the prosecution at trial. The defendant argues that the court assisted the prosecution by highlighting gaps in its case and suggesting further action, specifically with respect to the permit evidence, and this lack of impartiality constituted structural error that permeated the defendant’s trial, thus, entitling him to a new trial on the remaining charges. We disagree.
At the outset, we note that the defendant did not object to the trial court’s alleged improprieties at trial; however, because the record is adequate for review and the defendant raises an issue that has constitutional implications, we review the defendant’s claim. See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).17
The right to an impartial tribunal is a fundamental component of due process. Weiss v. United States, 510 U.S. 163, 178, 114 S. Ct. 752, 127 L. Ed. 2d 1 (1994). ‘‘The principles guiding a trial judge in conducting a criminal trial are well established. Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. . . . In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . Consistent with his neutral role, the trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so. . . .
‘‘Even though a judge may take all reasonable steps necessary for the orderly progress of the trial, he must
It is axiomatic that a judge may not become an advocate for either of the parties at trial. State v. Echols, 170 Conn. 11, 13–14, 364 A.2d 225 (1975). In this case, however, the defendant has failed to identify any conduct on the part of the trial court that raises a question with respect to its impartiality. The defendant identifies two ways in which it claims the court acted improperly. First, the defendant directs our attention to a sidebar discussion following Imbimbo’s testimony that he suggests shows that the court, during a conference in chambers, implicitly encouraged the state to request a continuance to call a representative to testify to the defendant’s lack of a temporary state permit. Second, the defendant identifies the court’s intervention on two occasions during the presentation of the evidence to correct the prosecutor’s misstatement as to the defendant’s date of birth, which was used by Imbimbo and Colon to verify whether the defendant possessed a valid permit.
As to the defendant’s first claim, there is nothing in the record to support the defendant’s contention that the court encouraged the prosecution to elicit additional information regarding the defendant’s lack of a temporary state permit. At sidebar, the court asked the prosecutor whether she could establish that the defendant was ineligible for a permit as a result of one of the disqualifying factors delineated under
As to the defendant’s second claim, that the court improperly supplied the prosecutor with the defendant’s correct birthdate, the record shows that the prosecutor made conflicting statements concerning the defendant’s date of birth during trial. Thus, any attempt by the court to seek clarification was not improper. The trial court is free to intervene to clarify the testimony and assist the jury in understanding the evidence provided that he is nonpartisan in doing so. State v. Perez, 146 Conn. App. 844, 851, 79 A.3d 149 (2013), cert. denied, 311 Conn. 909, 83 A.3d 1163 (2014). Finally, we note that the conduct of the court that the defendant assails on appeal, and the claimed resultant harm, is
The court’s conduct in this case certainly did not amount to ‘‘tilting the balance against the accused and plac[ing] the judge . . . on the side of the prosecution.’’ (Internal quotation marks omitted.) State v. Peloso, 109 Conn. App. 477, 492, 952 A.2d 825 (2008). Upon our review of the alleged instances of judicial impropriety cited by the defendant, we conclude that the defendant has failed to show that there is a constitutional violation.
The judgment is reversed only as to the conviction of carrying a pistol without a permit and unlawful possession of a weapon in a vehicle and the case is remanded with direction to render judgment of acquittal on those charges. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
‘‘[Prosecutor]: Just for clarity, there is no such thing as a local permit; is that correct?
‘‘[Colon]: There is no such thing as a local permit; it’s called a temporary state permit.
‘‘[Prosecutor]: And when one goes to apply for a temporary state permit where are they supposed to go?
‘‘[Colon]: They’re supposed to go to their town where they reside or the city.
‘‘[Prosecutor]: Where they reside?
‘‘[Colon]: Correct.
‘‘[Prosecutor]: So, in your database . . . should be any New Haven resident that applied or has a temporary state pistol permit?
‘‘[Colon]: Yes.’’