State v. Barlow

• Decision Date: 04 June 2002
• Docket Number: (AC 18583)
• Citation: 70 Conn. App. 232,797 A.2d 605
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ALISON BARLOW

70 Conn. App. 232

797 A.2d 605

STATE OF CONNECTICUT v. ALISON BARLOW

(AC 18583)

Appellate Court of Connecticut.

Argued December 6, 2001.

Officially released June 4, 2002.

Foti, Schaller and Daly, JS. Lori Welch-Rubin, special public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and John J. Davenport, assistant state's attorney, for the appellee (state).

Opinion

SCHALLER, J.

The defendant, Alison Barlow, appeals from the judgment of conviction, rendered following a jury trial, of criminal attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2)¹ and 53a-54a,² conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a)³ and 53a-54a, two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1)⁴ and alteration of a firearm identification number in violation of General Statutes § 29-36.⁵ On appeal, the defendant claims that (1) the trial court improperly denied his motion for a judgment of acquittal, in which he alleged that the evidence was insufficient to support the jury's verdict of guilty as to each of the charges, (2) the court improperly denied his motion to suppress certain evidence and (3) the presentence investigation was conducted in a manner that deprived him of his due process rights at sentencing.⁶

The jury reasonably could have found the following facts. At approximately noon and again at 4 p.m. on January 9, 1997, Kyle Dunn and his friend, Amy Ditota, rented Ditota's purple and black Geo Tracker vehicle to three men, the defendant and two others known as Miquel and Goolie, in exchange for narcotics. The men returned the vehicle at approximately 7:30 p.m. the same day. At approximately 7:15 p.m. on January 9, 1997, the Waterbury police responded to a reported shooting in front of a grocery store on Willow Street. Upon their arrival, the police located one victim, Naomi Williams, who was found on the ground bleeding in the doorway of the store.⁷ The police later located a second victim, Joel Mercado, at Waterbury Hospital.⁸ According to the victims, the shots were fired from a purple and black "Jeep-like" vehicle containing three individuals, although neither victim could identify the assailants. During a subsequent search of the scene, detectives found thirteen shell casings. The shell casings were of two different types of ammunition; ten were .22 caliber and three were ten millimeter. The police recovered no bullets at the scene. The police did not identify any of the bullets that injured the victims by their type, nor did the state present any bullets as evidence at trial.

Henry Mercado, Joel Mercado's brother, was not with his brother at the time of the shooting, but they were together earlier in the day and saw the purple and black vehicle pass them several times. He identified the three individuals whom he saw in the vehicle at that time as "Miguel, Poncho⁹ and Goolie" and stated that Miguel Torres, an acquaintance from school, was the driver of the vehicle.

On January 10, 1997, Mark Butler, a police lieutenant, and three members of the Waterbury police department went to the Fairmount Projects in Waterbury to investigate the defendant's connection with the shooting. Two police officers arrived at the home of Demetrice Chapman, with whom the defendant had fathered a daughter, and spoke with her for about five minutes. Chapman apprised the police that the defendant owned a blue Thunderbird vehicle that he kept in a nearby parking lot. While the police interviewed Chapman, two other officers approached the rear exit of the home. There they encountered the defendant approaching the home carrying a car battery. During a patdown search of the defendant, the detectives found a set of keys, which they later determined fit the blue Thunderbird. The police arrested the defendant on charges unrelated to the present appeal.

After leaving the Chapman residence, James Nardozzi, a police detective, and other police officers went to a residence to interview Dunn regarding the shooting. Dunn agreed to give a statement and did so at the police station. He apprised the police that he had seen the defendant with a ten millimeter gun and that the gun was a "project," meaning that "whoever needs it, gets it."

The police obtained a search warrant for the Thunderbird at approximately 10:30 p.m. on January 10, 1997. At that time, the car was located on Lestor Drive near Chapman's residence. At some point between 6:08 p.m., January 10, and early January 11, the car was towed to the police station garage. In the early morning hours of January 11, the police searched the vehicle at the police station garage. During the search, they seized a ten millimeter Colt pistol with its serial number obliterated and one round in its chamber. They also seized a magazine containing one round of ammunition, later determined to belong to that weapon, and one round of ten millimeter ammunition found under the front passenger seat. Investigators later determined that the three ten millimeter shell casings found at the scene of the shooting were from this pistol, while the ten .22 caliber shell casings were from a different weapon.

Additional facts will be set forth as necessary to resolve the claims raised on appeal.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal. Specifically, the defendant argues that "the state has failed to prove the essential elements of the crimes charged beyond a reasonable doubt because the circumstantial evidence adduced at trial does not preclude the very reasonable hypotheses: (1) that the victims were actually shot by the gun which threw off the .22 caliber shell casings, which reasonable conclusion requires the reversal of the defendant's two assault in the first degree charges; (2) that, because others clearly had equal access to the ten millimeter gun found in the 1986 Blue Thunderbird, there is insufficient evidence to establish the identity of the shooter and that individual who defaced the identification mark on the handgun, thus the remaining convictions ... must be reversed as well."

"The standard of appellate review of a denial of a motion for a judgment of acquittal [challenging the sufficiency of the evidence] has been settled by judicial decision.... The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt.... The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury's verdict." (Citations omitted; internal quotation marks omitted.) State v. Williams, 59 Conn. App. 771, 776-77, 758 A.2d 400 (2000), rev'd on other grounds, 258 Conn. 1, 778 A.2d 186 (2001). We also note that "[t]here is no distinction between direct and circumstantial evidence so far as probative force is concerned...." (Citation omitted; internal quotation marks omitted.) State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 7c, p. 10.

A

The defendant argues that the state failed to establish beyond a reasonable doubt the identity element of the crimes with which he was charged. Specifically, he argues that no one identified him as either the passenger or the driver of the black and purple vehicle, nor did the state present any evidence as to the type of bullets that injured the victims. He further challenges the sufficiency of the identification evidence because others had access to the weapon in the Thunderbird. Consequently, he argues that the evidence did not preclude the reasonable hypotheses that the victims were actually shot by the gun that fired the .22 caliber shell casings and that another person could have been the shooter. We disagree.

To secure a conviction for assault in the first degree under § 59a-59 (a) (1), the state must "[establish] beyond a reasonable doubt: (1) the defendant intended to cause serious physical injury to another person; (2) he in fact caused serious physical injury to that person; and (3) he caused that injury by means of a dangerous instrument." State v. Prat, 66 Conn. App. 91, 95, 784 A.2d 367 (2001).

"Where, as here, the identification of the defendant is derived from circumstantial evidence, it is, nonetheless, the cumulative impact of a multitude of factors that must be examined to determine whether the identification of the defendant has been satisfactorily established by circumstantial evidence.... In criminal cases, including the most serious ones, the fact that an accused was the person who committed the criminal act may be proved by circumstantial evidence....

"The jury's sole province as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist.... The issue of the identification of the accused as the perpetrator of the crime is peculiarly one of fact to be resolved by the jury.... If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction." (Citations omitted; internal quotation marks omitted.) State v. Rivera, 32 Conn. App. 193, 201-202, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).

Initially, we note, as does the defendant, that the question is not whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence, but rather whether there is a reasonable view of the evidence that supports the trier of fact's verdict of guilty. See State v. Torres, 242 Conn. 485, 490, 698 A.2d 898 (1997). The state argues on appeal that its burden of proof was simply to show that the defendant used...