State v. Dunbar, (AC 17143)

• Decision Date: 22 December 1998
• Docket Number: (AC 17143)
• Citation: 721 A.2d 1229,51 Conn. App. 313
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. SAMUEL DUNBAR

51 Conn. App. 313

721 A.2d 1229

STATE OF CONNECTICUT v. SAMUEL DUNBAR

(AC 17143)

Appellate Court of Connecticut.

Argued September 17, 1998.

Officially released December 22, 1998.

Lavery, Spear and Daly, JS. Christian Young and Deborah Stevenson, certified legal interns, with whom was G. Douglas Nash, public defender, for the appellant (defendant).

John A. East III, assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Joseph J. Harry, assistant state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal at the close of the state's evidence, (2) allowed the state to reopen its case-in-chief to present additional evidence and (3) denied his request to redact a prejudicial statement from a defense exhibit. Although the first claim attacks the sufficiency of the evidence, the waiver rule precludes review. The second claim also raises a question as to the sufficiency of the evidence, but we conclude that it is without merit. We agree with the defendant's third claim and, accordingly, reverse the judgment.

The jury reasonably could have found the following facts. On July 5, 1996, Detective Juan Gonzalez of the Bridgeport police department and Trooper James Craig of the state police were patrolling the Stratford Avenue area of Bridgeport in an unmarked car. They were searching for a wanted felon, Roland McLellon, who was also known as "Cobra." The officers had a description and a photograph of McLellon. The officers saw the defendant walking down Stratford Avenue and, mistaking him for McLellon, called for backup in preparation to stop and arrest the defendant. After two uniformed officers arrived, the four officers approached the defendant, who was standing alone on the sidewalk.

Approximately seven to ten feet away from the defendant, two men sat in a parked car. There were no other parked cars in the immediate area. As the officers approached the defendant, they saw him reach into his pocket and remove something that resembled a handgun. The defendant wrapped it in a T-shirt and threw it into the open window of the parked car. Gonzalez retrieved the T-shirt, which did contain a handgun. The defendant was eventually arrested and subsequently convicted of possession of a handgun without a permit. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal that was made at the close of the state's evidence. He claims that the state failed to present sufficient evidence from which the jury could find that he did not have a permit to carry a gun. The state rested without offering a proposed stipulation that the defendant did not possess a pistol permit.¹ After the trial court denied the motion for judgment of acquittal, the defendant presented evidence. By doing so, the defendant subjected his sufficiency claim to the operation of the waiver rule.

"Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state's evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state's case. State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992)." State v. Wolff, 29 Conn. App. 524, 527, 616 A.2d 1143 (1992).² Although the waiver rule has received much criticism, it is still in effect and, therefore, we decline to review this claim. See State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984).

II

The defendant's next claim is that the trial court improperly granted the state's motion to reopen its case after the denial of the motion for judgment of acquittal. We disagree.

Certain additional facts are necessary to our resolution of this issue. Prior to the opening of evidence, the state notified the trial court that it was prepared to call two witnesses to establish that the defendant did not possess a permit to carry a handgun. Defense counsel notified the court that he was prepared to stipulate to the nonexistence of a permit if the state offered the stipulation at the close of evidence.

In reliance on the defendant's offer to stipulate, the state did not call the two witnesses to establish that the defendant did not possess a permit. The state failed, however, to offer the proposed stipulation at the close of its case-in-chief. The state did call Gonzalez who testified that he asked the defendant if he had a pistol permit and that the defendant never produced a permit. In addition, Gonzalez testified that the defendant was detained and after "it was determined that he didn't have a pistol permit," he was arrested. After denying the defendant's motion for judgment of acquittal made at the close of the state's case-in-chief, the trial court granted the state's motion to reopen its case to offer the stipulation.

The defendant asserts that this issue is controlled by State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987). We disagree. In Allen, the state failed to offer any evidence on the length of the barrel of the pistol, an essential element of the crime charged. The defendant moved for a judgment of acquittal at the close of the state's case, claiming that the evidence was insufficient on that element. The state argued, and the trial court agreed, that the length of the barrel was not a material element of the crime and denied the defendant's motion. The following day, the state moved to reopen its case to present evidence on the length of the barrel of the firearm. Over the defendant's objection, the trial court allowed the state to reopen its case. Our Supreme Court reversed the trial court's judgment of conviction on the weapons charge and directed a judgment of acquittal, holding that a trial court abuses its discretion by reopening the state's case "when the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal...." State v. Allen, supra, 205 Conn. 385.

The Allen case is inapposite because the present case differs from it in two critical respects. First, the state conceded in Allen that by failing to offer any evidence to prove an essential element of the crime, it had failed to make out a prima facie case. Under those circumstances, the defendant was entitled to a judgment of acquittal, and reopening the case was an abuse of the court's discretion. In the present case, however, the state disputed the defendant's claim of insufficient evidence on the issue of a pistol permit. The state claimed that the jury could infer that the defendant did not have a permit because evidence of the defendant's felony conviction was presented and a felon is not authorized to receive a permit to carry a firearm. In addition, the state's first witness, Gonzalez, testified that he asked the defendant if he had a permit and that no permit was ever received from, given or offered by the defendant. When, as in this case, the trial court implicitly ruled that the state had established a prima facie case by denying the defendant's motion for judgment of acquittal, the trial court's decision to reopen was within its discretion. State v. Zoravali, 34 Conn. App. 428, 443, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994). The trial court's implicit conclusion that the state had made out a prima facie case is not subject to review as discussed in part I of this opinion. "If the trial court had ruled that a prima facie case had not been made, then reopening the state's case would have been an abuse of discretion. State v. Allen, supra, [205 Conn.] 385." State v. Zoravali, supra, 442-43.

"The decision to reopen a criminal case to add further testimony lies within the sound discretion of the trial court. State v. Carter, [228 Conn. 412, 420, 636 A.2d 821 (1994)]. The trial judge's discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.... Id., 421, quoting State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983). The purpose of this discretion is to preserve the fundamental integrity of the trial's truth-finding function. State v. Carter, supra, 426. The trial court's discretion will be reversed only upon manifest abuse of discretion or injustice. Ostolaza v. Warden, 26 Conn. App. 758, 778, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992)." (Internal quotation marks omitted.) State v. Zoravali, supra, 34 Conn. App. 442.

The second way in which Allen is distinguishable is that here the state was aware of and was prepared to prove the essential element that is at issue. Our Supreme Court's holding that it is an abuse of discretion for a trial court to allow the state to reopen its case to fill an evidentiary gap "specifically identified ... [by the defendant] in a motion for judgment of acquittal"; State v. Allen, supra, 205 Conn. 385; was based on the conclusion that "allowing the state to reopen its case-in-chief after the defendant has identified its shortcomings was fundamentally unfair to the defendant...." Id., 383-84. This fundamental unfairness does not exist here. The defendant did not alert the state to the evidentiary gap. The state was prepared to prove the lack of a permit through the testimony of two witnesses prior to the defendant's offer to stipulate to...