State v. Legnani

• Decision Date: 29 July 2008
• Docket Number: No. 26840.,26840.
• Citation: 951 A.2d 674,109 Conn.App. 399
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert A. LEGNANI.

951 A.2d 674

109 Conn.App. 399

STATE of Connecticut v. Robert A. LEGNANI.

No. 26840.

Appellate Court of Connecticut.

Argued February 5, 2008.

Decided July 29, 2008.

Moira L. Buckley, Hartford, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Kevin Murphy, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, McLACHLAN and WEST, Js.

WEST, J.

The defendant, Robert A. Legnani, appeals from the judgments of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(1), three counts of criminal possession of a pistol in violation of General Statutes § 53a-217c(a)(1), criminal use of a firearm in violation of General Statutes § 53a-216, possession of a weapon in a motor vehicle in violation of General Statutes § 29-38 and possession of marijuana in violation of General Statutes § 21a-279(c).¹ On appeal, the defendant claims that (1) the state presented insufficient evidence to support the counts of criminal possession of a pistol, criminal use of a firearm and possession of a weapon in a motor vehicle, (2) the trial court improperly concluded that the verdict in docket number CR04-0022869-T was not tainted by juror misconduct, after conducting an insufficient inquiry, (3) the court improperly denied his motion to suppress certain identification testimony, (4) the court improperly failed to hold a Porter² hearing and (5) the court improperly consolidated the two informations for trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On the night of May 1, 2004, the victim, Jerry Sweeney, attended a party in Southington with his friend, Trevon Scott. Scott had been invited to the party, which was a birthday party for Chris Dellaventura, Tom Folak and Christine Casertano, and he invited Sweeney. The defendant also attended the Southington party that evening.

Sweeney's antisocial behavior, after drinking continuously during the course of the evening, incited a group of male partygoers to chase both him and Scott from the party premises. Casertano, who was returning to the party after having accompanied the defendant to his home, observed Sweeney and Scott fleeing from the angry crowd. She and some friends drove to their aid, picked them up and brought them to her home. Once at Casertano's house, Sweeney continued to drink and became more obnoxious and belligerent. The defendant was not at Casertano's house while this was occurring. When Sweeney started to become belligerent and uncontrollable, Casertano called the defendant to ask if he would drive Sweeney home. The defendant agreed to do so. Casertano, upset with Sweeney because of his previous behavior at the party and his present behavior at her house, asked him to leave. On his way out of the house, Sweeney threw his vodka drink in her face. He then began yelling obscenities and calling her various insulting names while standing on her front lawn. He also threatened to have the Diablos, a motorcycle gang, "do things" to her.

A few minutes after Sweeney had thrown his drink in her face, Casertano received a telephone call from the defendant. She informed him of Sweeney's recent behavior, and he asked to be provided with the direction in which Sweeney was headed. Although unable to provide the requested information, while still on the telephone, she saw the defendant in his van drive by her house.

After leaving Casertano's house, and while wandering the streets on foot in an attempt to find a way home from the unfamiliar neighborhood, Sweeney noticed a van behind him proceeding very slowly. Soon thereafter, he noticed that the van was no longer behind him but, instead, was approaching him from the front. Sweeney then jumped into the bushes to hide for a short period of time before continuing on. Soon after he began to walk again, he noticed the same van, which stopped in front of him. The driver shouted to Sweeney, asking him if he knew "Chrissy," to which Sweeney responded that he did know her. Then the driver pointed what appeared to be a cap gun at Sweeney, who then heard a "click" and a loud noise and immediately felt pain in his stomach. Subsequently, police officers responded to the scene where they found Sweeney lying in the road bleeding from a gunshot wound to the stomach. They quickly got him into an ambulance, which transported him to a hospital.

Meanwhile, after returning to his house, the defendant placed another call to Casertano to inform her that everything was taken care of and not to call him anymore that night. Subsequently, Casertano did call the defendant, expressing concern about Sweeney's returning to carry out his threats regarding the motorcycle gang. The defendant offered to stay with Casertano for the night, but she told him that it was not necessary, as Scott was going to stay over.

During the police investigation, Officer Lewis Palmieri spoke with Sweeney while he was still in the hospital. Sweeney told the officer that the person who shot him was a white male who was driving a gray van. Sweeney further described the van as being customized with tinted windows and a brow, a piece of plastic that extends over the windshield to prevent glare from the sun. After speaking with Sweeney, police officers drove past the defendant's house because his name had come up in their conversation with Casertano. After seeing a gray van, which matched the description given by Sweeney, in the defendant's driveway, the police officers put together an array of photographs, which included the defendant and eight other white males. When the detectives showed the array to Sweeney, he identified the defendant as the man who had shot him.

Shortly thereafter, detectives executed a search warrant on the defendant's home and seized several items: a Makarov pistol, a Colt .45 pistol, a .30/.30 rifle, an SKS rifle, a twelve gauge shotgun, a Makarov pistol magazine, nine millimeter Makarov cartridges and less than four ounces of marijuana. The defendant was arrested, tried and convicted of the several crimes, as previously indicated. On August 10, 2005, the defendant was sentenced to a total effective term of twenty-five years incarceration, suspended after twelve years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the state presented insufficient evidence to support his conviction of the charges of criminal possession of a pistol, criminal use of a firearm and possession of a weapon in a motor vehicle. Specifically, he argues that the state presented insufficient evidence of the barrel length of the firearm used to shoot the victim.

Our standard of review for a sufficiency of evidence claim is well established. "In reviewing a sufficiency of the evidence claim, we 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Farnum, 275 Conn. 26, 32, 878 A.2d 1095 (2005).

The defendant argues that for the jury to find him guilty of criminal possession of a pistol, criminal use of a firearm and possession of a weapon in a motor vehicle, it had to find that the state had proved beyond a reasonable doubt that he had possessed or had used a pistol or a revolver. Citing General Statutes § 29-27, the defendant points out that a pistol and a revolver are both defined as firearms with a barrel length of less than twelve inches. The defendant also notes that the firearm used to shoot Sweeney never was recovered and that Sweeney was unable to describe the firearm in great detail. Therefore, the defendant argues, the state failed to prove that the weapon used was a pistol, as defined by the statute, and hence, failed to prove an essential element of the crimes. We do not agree with the defendant.

"Direct numerical evidence is not required to establish the length of the barrel of a handgun in question." State v. Miles, 97 Conn.App. 236, 242, 903 A.2d 675 (2006). In State v. Williams, 231 Conn. 235, 645 A.2d 999 (1994), overruled in part on other grounds by State v. Murray, 254 Conn. 472, 487, 757 A.2d 578 (2000) (en banc), our Supreme Court concluded that the state had presented sufficient evidence of the barrel length when several witnesses had stated that the defendant had pulled a "small handgun" out of his "waist length jacket." (Internal quotation marks omitted.) Id., at 252, 903 A.2d 675. Furthermore, in State v. Miles, supra, at 242, 903 A.2d 675, this court concluded that the state had presented sufficient evidence of the length of the barrel because the victim had testified that he had seen the defendant with a handgun and had further described it as a silver handgun.

In the present case, we conclude that the jury reasonably could have found, on the basis of the evidence introduced at trial, that the firearm used to shoot Sweeney had a barrel length of less than twelve inches. At trial, Sweeney testified that the object pointed at him by the defendant was a gun, although he initially thought it might have been a cap gun. The state presented evidence that the defendant, at one point, had owned another Makarov pistol, in addition to the one recovered from his home. Evidence was also presented that the bullet casings found at the scene of the shooting had not been fired from the Makarov pistol seized from the defendant's home but had been fired from another Makarov pistol. Sweeney's description of the firearm as looking like a cap gun was similar to the witnesses' testimony in Williams, in which they descri...