State v. Hamilton

• Decision Date: 24 February 1993
• Docket Number: No. 10692,10692
• Citation: 30 Conn.App. 68,618 A.2d 1372
• Parties: STATE of Connecticut v. William HAMILTON, Jr.
• Court: Connecticut Court of Appeals

Page 1372

618 A.2d 1372

30 Conn.App. 68

STATE of Connecticut v. William HAMILTON, Jr.

No. 10692.

Appellate Court of Connecticut.

Argued Nov. 3, 1992.

Decided Jan. 19, 1993.

Certification Granted limited to the following issue Feb. 24, 1993.

Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Stephen J. Sedensky III, Asst. State's Atty., for appellee (state).

Before FOTI, LANDAU and FREDERICK A. FREEDMAN, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(2), burglary in the first degree in violation of General Statutes § 53a-101(a)(1), attempted assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-49(a)(2), and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37(b). The defendant was committed to the custody of the commissioner of correction for a total effective sentence of thirty-five years. He received twenty year concurrent sentences for the robbery and burglary convictions, a ten year consecutive sentence for the attempted assault conviction, and a five year consecutive sentence for carrying a pistol without a permit.

On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction for the offense of carrying a pistol without a permit, (2) the trial court improperly instructed the jury on the offense of carrying a pistol without a permit by failing to define an essential element of the crime, (3) the evidence was insufficient to sustain a conviction for the offense of attempted assault in the first degree, and (4) the trial court improperly denied his request for a continuance. We reverse the judgment of the trial court in part and affirm it in part.

The jury could reasonably have found the following facts. On July 19, 1990, between 10 p.m. and 10:30 p.m., nineteen year old Michael DelGais, Jr., was in the backyard swimming pool at his family home in Bridgeport, with his teenage friends, Cynthia Stone, Ila Swinton and Robin Posey, when the defendant walked up to the pool holding a gun that was shorter than one foot in length. After asking Michael who was in the house and determining that other family members were inside, the defendant ordered the teenagers into the house at gunpoint. He walked the group through the kitchen into the living room and ordered the young women to sit down, while he took Michael to the foot of the stairs to call his father. Michael did so and, hearing alarm in his son's voice, Michael DelGais, Sr., came out of his bedroom and started down the stairs. As the father saw the defendant holding a gun and standing next to his son at the foot of the stairs, Michael, Jr., told his father that the defendant wanted money. Michael, Sr., then jumped back and hit the panic button on his home security alarm. As the alarm sounded and the defendant started coming up the stairs, Christopher DelGais, a younger brother of Michael, Jr., came out of his bedroom but was shoved back into the room by his father. Another brother, Gerry, opened his bedroom door, looked out, and saw the defendant raise the gun. Gerry ducked back into his room, as the defendant fired the gun up the stairway. The bullet lodged in the ceiling of the upstairs landing. After the shot was fired, the young women who had been seated in the living room ran out into the yard and hid near a shed. The defendant then went upstairs and pointed the gun at Michael DelGais, Sr., who told him not to fire it again, that he would get what the defendant wanted. The elder DelGais then proceeded at gunpoint to his bedroom, took $900 of "vacation money" off a dresser and gave it to the defendant. The defendant kept the gun pointed at Michael, Sr.'s chest while they were in the bedroom.

The defendant, who was masked, removed his mask when he came to the top of the stairs. Michael, Sr., got a good look at him and was able to make a positive identification of the defendant at both a photographic lineup and a courtroom identification.

I

The defendant first claims that the evidence was insufficient to sustain his conviction on the charge of carrying a pistol without a permit. While the defendant may have conceded at trial that the state had presented a prima facie case on the charge of carrying a pistol without a permit, he did not concede that the state had proven each and every essential element of that crime beyond a reasonable doubt. The defendant did not raise the issue of whether the state failed to prove that the weapon fell within the aegis of General Statutes § 29-27; he neither made a specific request to charge nor excepted to that portion of the charge. We nevertheless will review this claim because "there is abundant authority that states that claims of insufficiency of the evidence fall within the ameliorative penumbra of State v. Golding, [213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973) ]; see State v. Aleksiewicz, 20 Conn.App. 643, 645 n. 1, 569 A.2d 567 (1990)...." State v. Estrada, 26 Conn.App. 641, 659, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992).

"When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury's verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S.Ct. 1570, 103 L.Ed.2d 937 (1989); State v. Rice, 25 Conn.App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn.App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989)." State v. Lago, 28 Conn.App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) State v. Boykin, 27 Conn.App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., at 564, 609 A.2d 242.

The defendant specifically claims that the evidence was insufficient to establish the essential element of the barrel length of the gun and, therefore, the jury had to resort to speculation and conjecture in finding him guilty of possessing a pistol without a permit. We do not agree.

A jury may draw reasonable, logical inferences from the facts proven, but may not resort to speculation and conjecture. State v. Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986). The state does not dispute that General Statutes § 29-27, which expressly defines a pistol or revolver as "any firearm having a barrel of less than twelve inches in length," applies to a charge under General Statutes § 29-35, which defines the crime of carrying a pistol without a permit. The state also does not dispute that the length of the barrel is, therefore, an element of that crime and must be proven beyond a reasonable doubt. The sole question is whether the evidence was sufficient for the jury reasonably to conclude that the gun carried by the defendant had a barrel of less than twelve inches in length.

Our review of the record shows that the weapon used in the commission of these crimes was never located, so it was never introduced as an exhibit at trial. While no witness could testify as to the exact length of the barrel, two witnesses, Ila Swinton and Cynthia Stone, testified that the weapon itself was shorter than one foot. It is a matter of common knowledge that one foot is the same as twelve inches, and that a part is less than the whole. In State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977), the description of a gun as "a short one, which 'didn't have a long barrel' " was not sufficiently probative evidence "upon which the jury could find the barrel of the firearm was in fact less than twelve inches in length." In the present case, however, the jury could reasonably have concluded, on the basis of the testimony of the two witnesses, that the gun itself was less than twelve inches in length, and therefore the barrel, a part of the gun, was also less than twelve inches in length. ¹ We thus conclude that there was legally sufficient evidence presented at trial for the jury to find the defendant guilty of carrying a pistol without a permit.

II

The defendant's second claim is that the trial court improperly instructed the jury by failing to define an essential element of the offense of carrying a pistol without a permit. We agree.

The state does not dispute, and we agree, that the definition of "pistol" contained in General Statutes § 29-27 applies to a charge under General Statutes § 29-35, and that the length of the barrel is an element of the crime. State v. Allen, 205 Conn. 370, 374, 533 A.2d 559 (1987); State v. Brown, supra. The state also agrees that failure to charge on an essential...