97 Conn. App. 404 | Conn. App. Ct. | 2006
Opinion
The defendant, William P. Slade, appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a),
The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. On May 1, 2004, from a second floor window, an off-duty police officer, Detective Luis Ramos, observed the defendant approach a Chevrolet Tahoe parked on the side of a road in Danbury. The defendant then removed a silver colored revolver from either his waistband or pocket, placed the revolver on the passenger side floor of the vehicle through the open passenger side window and walked away. Joseph Sta-ton, the driver of the motor vehicle, covered the revolver with a towel. Ramos notified the police department
After approximately fifteen to thirty minutes had elapsed, the defendant returned to the parked vehicle and sat in the passenger seat. Staton testified that the defendant, upon entering the vehicle, retrieved the gun from the floor, and then Staton drove the vehicle away. Staton stated that while he was in the vehicle with the defendant and as the police were pursuing the vehicle, the defendant held the revolver in his hand and was “kissing it” with his lips. After following the departing vehicle for a short distance, the responding officers initiated a stop and ordered the defendant and Staton to exit the vehicle. Upon exiting the vehicle, the defendant, who remained in the open passenger side doorway, repeatedly glanced at the floor of the vehicle and then at the officers. Eventually, the defendant approached the officers. The officers conducted a patdown search and found a glass pipe, which typically is used to smoke crack cocaine, and an empty plastic bag.
After the defendant and Staton were detained in police cars, the officers recovered a silver colored, loaded .38 caliber Ruger double action revolver with a barrel of less than twelve inches in length from underneath the front passenger seat of the vehicle. When the officers retrieved the revolver from the vehicle, the hammer on the revolver was pulled back and cocked.
The state charged the defendant with carrying a pistol or revolver without a permit, possession of a weapon in a motor vehicle, criminal possession of a revolver, possession of drug paraphernalia with intent to use and possession of narcotics. On November 8, 2004, the defendant filed a motion in limine to preclude testimony regarding the type of ammunition found in the seized revolver, the capability of the revolver to operate in a
The prosecutor, in arguing against the defendant’s motion in limine, incorrectly asserted that the operability of the revolver was an essential element of one of the charges against the defendant, and therefore stated that the evidence about the cocked and loaded status of the revolver was relevant to show that the revolver was operable.
The defendant’s issue on appeal is twofold. First, the defendant argues that the court improperly denied his motion in limine to preclude testimony that the revolver was loaded, the hammer was cocked and the revolver was a double action revolver because this evidence pertains to the operability of the revolver, which was not relevant to establishing the elements of § § 29-35 (a), 29-38 (a) and 53a-217c. Further, the defendant contends that the prejudicial effect of the evidence outweighed
We first set forth the applicable standard of review. “It is well established that this court affords great deference to a trial court’s evidentiary rulings.” State v. Efrain M., 95 Conn. App. 590, 596, 899 A.2d 50, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Schmidt, 92 Conn. App. 665, 675, 886 A.2d 854 (2005), cert. denied, 277 Conn. 908, 894 A.2d 989 (2006).
“A party is entitled to offer any relevant evidence to aid the trier of fact in its determination, as long as the evidence is not unfairly prejudicial.” (Internal quotation marks omitted.) State v. Marshall, 87 Conn. App. 592, 601, 867 A.2d 57, cert. denied, 273 Conn. 925, 871 A.2d 1032 (2005). “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. “[E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant,
However, relevant evidence may be excluded if the court determines that “its probative value is outweighed by the danger of unfair prejudice . . . .” Conn. Code Evid. § 4-3. “Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) State v. Eastwood, 83 Conn. App. 452, 465, 850 A.2d 234 (2004). Having set forth our standard of review and the applicable legal principles, we now turn to the evidence in question.
The defendant argues that because the state need not prove the operability of a revolver in a prosecution for a violation of § 29-35 (a), § 29-38 (a) or § 53a-217c, the testimony concerning the cocked and loaded status of the revolver was irrelevant. As a preliminary matter, we note that the defendant correctly states that the three weapons charges for which he was convicted do not require that the revolver be operable.
The following additional facts inform our review. In addition to testifying about the cocked and loaded status of the revolver upon its retrieval from the motor vehicle, Georgoulis testified that the Ruger was a double action revolver, capable of operating in either a single action or double action mode.
This testimony was relevant to establishing that the defendant knowingly had the revolver in the motor vehicle in violation of § 29-38 (a).
Specifically, after listening to Ramos’ testimony about how he observed the defendant remove the revolver from his waistband or pocket and to the expert testimony about the decreased stability of a revolver with a cocked hammer, the jury reasonably could have inferred that the defendant, when he was carrying the revolver on his person, did not have its hammer cocked in a single action mode. Moreover, because the police found the revolver in the vehicle with the hammer cocked, the jury then reasonably could have inferred that the defendant cocked the hammer of the revolver after placing the revolver in the vehicle. Consequently, these reasonable inferences, in conjunction with Sta-ton’s testimony about the defendant holding the revolver in the vehicle, are relevant and could have assisted the fact finder in determining that the defendant had knowledge of the revolver’s presence in the motor vehicle in violation of § 29-38 (a).
Furthermore, the foregoing inferences also could tend to establish that the defendant violated § 29-35 (a), which prohibits a person from carrying a revolver on his person without a permit.
Having evaluated the relevance of the disputed evidence, we next turn to the defendant’s claim that the court should have excluded the evidence as being unduly prejudicial to him. Specifically, the defendant argues that the testimony concerning the cocked hammer and the loaded revolver improperly aroused the emotions of the jury by raising the inference that the defendant was a violent person prepared to engage in a “shoot-out” with the police.
When the court denied a portion of the defendant’s motion in limine, thus permitting testimony relating to the cocked and loaded status of the revolver, the court implicitly found that the probative value of this evidence outweighed any potentially prejudicial effect. See State v. DeJesus, 194 Conn. 376, 383, 481 A.2d 1277 (1984) (“[i]mplicit in the court’s admission of [the evidence]
Further, we are guided by the principle that on appeal a court’s evidentiary ruling is entitled to every reasonable presumption in its favor and will be overturned only if the defendant can demonstrate a clear abuse of the court’s discretion. Consequently, we conclude that the court, in denying a portion of the defendant’s motion in limine, did not abuse its discretion because the admission of testimony concerning the revolver was not unduly prejudicial as it did not improperly arouse the emotions of the jury. We conclude that the court’s evi-dentiary ruling reflected a sound exercise of discretion.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statules § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. ...”
General Statutes § 29-38 (a) provides in relevant part: “Any person who knowingly has, in any vehicle owned, operated or occupied by such person, any weapon, any pistol or revolver for which a proper permit has not been issued as provided in section 29-38 . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon, pistol or revolver, or machine gun in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . .”
General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver, when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony or of a violation of subsection (c) of section 21a-279 or section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d
Because the issue on appeal involves the admission of evidence describing the recovered revolver and its relevance to establishing the elements of the weapons offenses, the charges relating to possession of drug paraphernalia with intent to use and possession of narcotics are not affected.
Although the prosecutor incorrectly believed that operability of the revolver was an element of at least one of the charged offenses, we conclude that the court did not abuse its discretion in denying in part the defendant’s motion in limine. Despite the prosecutor’s remarks in his closing argument that operability was a required element, the court, in its charge to the jury, did not state that the jury had to make a finding as to whether the revolver was operable. The evidence was capable of supporting an inference that the defendant knowingly possessed the revolver in the motor vehicle.
See State v. Banks, 59 Conn. App. 112, 130, 755 A.2d 951 (“[t]here is nothing in ... § 53a-217c . . . that suggests that the operability of the pistol or revolver is an element of the offense”), cert. denied, 254 Conn. 950, 762 A.2d 904 (2000); State v. Bradley, 39 Conn. App. 82, 90, 663 A.2d 1100 (1995) (“we note that the defendant incorrectly assumes that operability of a weapon is an element of the crime of carrying apistol without apermit”), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996); State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164 (“[njothing in § 29-38 remotely suggests that operability of the weapon is an element of the offense”), cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989).
Georgoulis explained that a revolver in a single action mode is fired after the user manually cocks the hammer and then pulls the trigger. In contrast, a user can fire a double action revolver without manually cocking the hammer because the pulling of the trigger cocks the hammer and releases the hammer.
The state must prove the following elements in a prosecution for a violation of General Statutes § 29-38: “(1) that the defendant owned, operated or occupied the vehicle; (2) that he had a weapon in the vehicle; (3) that he knew the weapon was in the vehicle; and (4) that he had no permit or registration for the weapon.” State v. Delossantos, 211 Conn. 258, 273, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989).
“A defendant may be found guilty of carrying a pistol or revolver without a permit, in violation of § 29-35, if the state establishes that, at the time in question, the defendant had been carrying a pistol or revolver upon his or her person, without the proper permit, and that the defendant was not within his or her dwelling house or place of business.” State v. Knight, 266 Conn. 658, 667, 835 A.2d 47 (2003).
See footnote 3.
General Statutes § 53a-3 (2) provides: “ ‘Possess' means to have physical possession or otherwise 1 o exercise dominion or coni rol over tangible property ....''