State v. Trotter

• Decision Date: 09 April 2002
• Docket Number: (AC 20886)
• Citation: 69 Conn. App. 1,793 A.2d 1172
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ROY TROTTER

69 Conn. App. 1

793 A.2d 1172

STATE OF CONNECTICUT v. ROY TROTTER

(AC 20886)

Appellate Court of Connecticut.

Argued October 22, 2001.

Officially released April 9, 2002.

Lavery, C. J., and Schaller and Flynn, JS. Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

Richard F. Jacobson, special assistant state's attorney, with whom was Robert Brennan, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, C. J.

The defendant, Roy Trotter, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and carrying a pistol without a permit in violation of General Statutes (Rev. to 1997) § 29-35 (a).¹

On appeal, the defendant claims that contrary to the rule of State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), the trial court improperly admitted into evidence (1) a statement that the victim had given on December 21, 1998, from his hospital bed, and (2) a statement that the victim had given on February 2, 1999, indicating that he had selected a photograph of the defendant from an array and identified him as his assailant. Regarding the victim's December 21, 1998, statement, the defendant claims, in the alternative, that the court improperly denied his motion to redact a section that he had asserted was highly prejudicial and of little probative value. Finally, the defendant claims that the state failed to prove beyond a reasonable doubt that he had been carrying a pistol that had a barrel less than twelve inches long and, therefore, he was improperly convicted of carrying a pistol without a permit. We affirm the judgment of the trial court.

On the basis of the evidence admitted during the defendant's trial, the jury reasonably could have found the following facts. On December 17, 1998, at approximately 1 p.m., the defendant drove to the home of Natasha Easter, located at 62 Ridge Avenue, Bridgeport, hoping to find her boyfriend, the victim, Juan Figueroa, who owed him $200 for drugs. Upon arriving at Easter's home, the defendant exited his vehicle, walked to the back door and knocked. After the defendant identified himself, Easter opened the door. The defendant asked for the victim, and Easter responded that he was at his home, which was located at 729 South Avenue, Bridgeport. The defendant did not believe her, and an argument ensued. Thereafter, the victim, who had been on the second floor of Easter's home, came downstairs. The defendant asked the victim to follow him outside. The victim obliged and followed the defendant into the alleyway behind Easter's home. After a brief discussion, the defendant drew a .45 caliber semiautomatic pistol and fired it five or six times at the victim, striking him in the chest, groin and buttocks. The defendant then placed the pistol back into his coat pocket, returned to his vehicle and fled the scene. Thereafter, an ambulance transported the victim to Bridgeport Hospital. Emergency surgery was performed on the victim, who later recovered from his wounds.

On March 14, 2000, the jury returned a verdict of guilty as to each of the three counts that were before it, and the court accepted the verdict. On April 27, 2000, the court sentenced the defendant to a total effective term of thirty years imprisonment, and this appeal followed. Additional facts and procedural history will be presented as necessary.

I

We first address the defendant's claim that the state failed to prove beyond a reasonable doubt that he had been carrying a pistol without a permit in violation of § 29-35 (a) because, if he prevails on that claim, he is entitled to an acquittal on that charge. See State v. Murray, 254 Conn. 472, 478, 757 A.2d 578 (2000). Specifically, the defendant claims that the evidence was insufficient to prove that he had been carrying a firearm that had a barrel less than twelve inches long and, therefore, the state failed to prove one of the elements of § 29-35 (a). The defendant concedes that this claim is unpreserved and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).²"`Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that "any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding." State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993).'" State v. Hicks, 56 Conn. App. 384, 386-87, 743 A.2d 640 (2000), quoting State v. Patterson, 35 Conn. App. 405, 411 n.7, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim. See State v. Hicks, supra, 387.

"The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Citation omitted; internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997).

Section 29-35 (a) provides in relevant part: "No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28...." The terms "pistol" and "revolver" are defined as "any firearm having a barrel less than twelve inches in length." General Statutes § 29-27.³ Consequently, the defendant can properly be found guilty of violating § 29-35 (a) only if the state proves beyond a reasonable doubt that he was carrying a firearm that had a barrel that was less than twelve inches long. See State v. Perry, 48 Conn. App. 193, 196, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998). We recognize, however, that direct numerical evidence of barrel length is not required to obtain a proper conviction under § 29-35 (a). See State v. Williams, 231 Conn. 235, 251-52, 645 A.2d 999 (1994).

In the present case, the firearm that the defendant allegedly had used to shoot the victim was not offered at trial. Nonetheless, the court admitted into evidence testimony, as well as exhibits, concerning barrel length that had substantial probative value. Detective William Mayer of the Bridgeport police department testified that he had been dispatched to the scene of the shooting. Mayer testified that shortly after his arrival at the scene, he took custody of eight spent .45 caliber shell casings that had been recovered by fellow detectives. Additionally, Mayer testified that a "shell casing" is the "part of a bullet which stores gunpowder and ejects from a semiautomatic weapon when it's fired." The court admitted all eight shell casings into evidence.

Louis Cortello, another detective in the Bridgeport police department, testified that on the day following the shooting, he visited Bridgeport Hospital, where the victim was being treated, and recovered a .45 caliber spent bullet. The court admitted that spent bullet (state's exhibit sixty-one) into evidence.

Marshall Robinson, a forensic ballistics expert, testified that he had examined the eight spent shell casings that had been recovered from the scene. Robinson testified that all eight were ".45 auto cartridge cases" and that he had concluded, on the basis of their breachface marks,⁴ that all had been fired from the same firearm. More importantly, Robinson testified that he had examined state's exhibit sixty-one and concluded, on the basis of its rifling characteristics,⁵ that the barrel length of the firearm used to fire it could have been as long as eight inches but could not have been as long as twelve inches. Robinson's testimony was uncontroverted.

Additionally, the court admitted, for substantive purposes, a statement under State v. Whelan, supra, 200 Conn. 753, that had been given by Easter on the day of the shooting. In that statement, Easter stated that she had observed the defendant leaving the scene and that she "saw [the defendant] holding the handle of a gun" as "[h]e was putting it back into his coat pocket after the shooting." Finally, the victim, himself, testified that the gun that had been fired at him was about eight inches long.

When viewed in the light most favorable to sustaining the verdict, the foregoing evidence establishes that the defendant wielded a .45 caliber firearm that had a barrel length of approximately eight inches. From those factual findings, it is reasonable to infer that the defendant was carrying a firearm that had a barrel less than twelve inches long. Accordingly, the jury reasonably could have concluded that the cumulative force of the evidence established beyond a reasonable doubt that the firearm that the defendant had wielded had a barrel less than twelve inches long. Thus, the defendant cannot prevail on his claim.

II

Next, the defendant claims that the court violated the rule of State v. Whelan, supra, 200 Conn. 753, in admitting into evidence a statement that the victim had...