State v. Gray-Brown

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STATE OF CONNECTICUT v. DOVANTE

GRAY-BROWN

(AC 41385)

Alvord, Prescott and Flynn, Js.

Syllabus

Convicted of the crimes of felony murder, robbery in the first degree and

carrying a pistol without a permit in connection with the shooting death

of the victim, the defendant appealed, claiming, inter alia, that the trial

court improperly denied his motion to suppress certain evidence that

the police had seized from the bedroom of his home. The defendant

and a friend, G, had arranged a drug deal with the victim in order to

rob the victim of drugs and money. During the robbery, the defendant

shot and killed the victim. Subsequently, the police went to the apartment

where the defendant lived with his mother, C, and her husband at about

six o’clock in the morning to execute an arrest warrant for the defendant.

C told the police that the defendant was not home and gave the officers

verbal consent to search the home for him, including his bedroom. A

detective, L, thereafter obtained a consent form from his vehicle and

observed C as she read and signed the consent form before the police

began to search the bedroom. The police seized from the bedroom an

empty ammunition tray, rubber gloves and an electronic scale. Held:

1. The trial court properly denied the defendant’s motion to suppress the

evidence that the police seized during their search of his bedroom, as

that court’s findings that C had actual authority to consent to the search

of the defendant’s bedroom and that her consent was voluntary were

not clearly erroneous: C and her husband presumptively had actual

authority to consent to the search, as they were the leaseholders of the

apartment and the parents of the defendant, all of the twelve police

officers who came to the home, except L and two other detectives, left

before C consented to the search of the bedroom, C was unaware of

whether weapons were being carried by the officers, who obtained

verbal and written consent from C, and L reviewed the consent form

with her; moreover, the officers did not forcefully enter the home, there

was no evidence that they roused C out of bed, pointed their handguns

at anyone or used loud or threatening language, there was no evidence

that C initially refused to consent to the search or that the officers

implied that they would obtain a warrant upon her refusal to consent,

and C did not suggest that her decision to let the officers into her

apartment was anything but the product of her own free will; further-

more, the court’s conclusion that the defendant did not establish suffi-

ciently exclusive control of his bedroom so as to render C’s consent

ineffective was supported by the evidence, as his bedroom door, which

was not always locked, was not locked at the time of the search, C

testified that she regularly entered the bedroom to clean the floor and

that the defendant had never told her that she was not allowed in the

room, and although C testified that the defendant helped pay bills and

rent, which could tend to show that he had exclusive control over the

room, C did not provide concrete details about those financial contri-

butions.

2. The defendant’s claim that the trial court abused its discretion by admitting

into evidence the ammunition tray, latex gloves and electronic scale

was unavailing, as that court reasonably concluded that the evidence

the police seized from the defendant’s bedroom was relevant and that

its probative value outweighed any undue prejudice; the ammunition

tray was probative to show that the defendant stored and used nine

millimeter bullets, such as those that were used in the victim’s murder,

the latex gloves were relevant to explain why none of the DNA evidence

or fingerprints collected at the shooting scene were attributable to the

defendant, and the electronic scale was corroborative of G’s testimony

that the defendant participated in the scheme to rob the victim of drugs

and money, and tended to demonstrate that the defendant was involved

in the sale of drugs, which made his involvement in a scheme to steal

drugs more likely, and the items were not unduly prejudicial and were

not likely to arouse the emotions of the jury.

3. The evidence was insufficient to prove that the firearm used in the underly-

ing crime had a barrel of less than twelve inches in length, which was

required to sustain the defendant’s conviction of carrying a pistol without

a permit in violation of statute (§ 29-35 [a]): the testimony of F, a police

officer who used the generic term handgun to describe a spent shell

casing, was not evidence from which the jury could have reasonably

concluded that the firearm used in the victim’s shooting had a barrel

that was less than twelve inches in length, F did not testify that the

spent shell casings found at the crime scene came from a handgun, the

state presented no evidence that shell casings are ejected only from

handguns and that the shell casings could not have come from a firearm

with a barrel length of twelve inches or more, and the state’s ballistics

expert did not testify that bullets found at the crime scene had been

fired from a handgun; moreover, any inference that a sawed-off gun

barrel that was seized from the basement of the defendant’s home was

connected to the firearm used in the victim’s shooting would amount

to speculation, as there was no evidence as to what type of firearm the

sawed-off barrel came from, when the gun barrel was sawed off, if the

remaining portion of the barrel would be less than twelve inches in

length or whether the firearm would still be capable of firing without

the sawed-off portion, and L’s testimony that the sawed-off barrel could

fit into a .22 caliber weapon did not tie the barrel to the evidence

that was found at the crime scene or to any specific type of firearm;

furthermore, the type of ammunition that was used in the victim’s shoot-

ing did not help to establish that the length of the barrel of the firearm

was less than twelve inches, and G’s testimony was too vague and

imprecise to permit a jury reasonably to infer that the defendant had

used a firearm with a barrel length of less than twelve inches to shoot

the victim.

4. The trial court properly declined the defendant’s request to give the jury

a third-party culpability instruction, which the defendant claimed was

necessary due to the presence of a partial fingerprint of a third person

on the rental car that the victim had driven to the crime scene; the

defendant did not establish a direct connection between the third party

and the offense with which the defendant was charged, as the fingerprint

could have been left from innocuous activity rather than by someone

involved in the victim’s shooting, and there was no other evidence that

tended to show that the third party was involved in the victim’s shooting

or had a motive to commit the crime, or that the third party’s involvement

necessarily exculpated the defendant.

5. The trial court did not abuse its discretion when it declined to question

a juror, who had been dismissed after the jury returned its verdict, about

the defendant’s claim that the juror became aware that the defendant

was incarcerated when the juror saw him being transported to court

by a correctional officer during the first week of trial; it was within the

court’s discretion, especially in light of the limitations of the applicable

rule of practice (§ 42-33) and the state’s interest in preventing juror

harassment, to decline to question the dismissed juror after the court

conducted a hearing, evaluated the evidence from the hearing and deter-

mined that the defendant’s allegations were not credible.

Argued October 10, 2018—officially released March 12, 2019

Procedural History

Substitute information charging the defendant with

the crimes of felony murder, robbery in the first degree

and carrying a pistol without a permit brought to the

Superior Court in the judicial district of Fairfield, where

the court, Kahn, J., denied the defendant’s motion to

suppress certain evidence; thereafter, the matter was

tried to the jury; verdict and judgment of guilty, from

which the defendant appealed. Reversed in part; judg-

ment directed.

Pamela S. Nagy, assistant public defender, for the

appellant (defendant).

Laurie N. Feldman, deputy assistant state’s attorney,

with whom, on the brief, were John C. Smriga, state’s

attorney, and Colleen P. Zingaro, senior assistant state’s

attorney, for the appellee (state).

Opinion

PRESCOTT, J. The defendant, Dovante Gray-Brown,

appeals from the judgment of conviction, rendered after

a jury trial, of felony murder in violation of General

Statutes § 53a-54c, robbery in the first degree in viola-

tion of General Statutes § 53a-134 (a) (1) and carrying

a pistol without a permit in violation of General Statutes

§ 29-35 (a). The defendant claims on appeal that (1) the

trial court improperly denied his motion to suppress

several items of evidence taken from his bedroom

because his mother lacked authority to consent to a

search of his bedroom, (2) the court abused its discre-

tion by admitting those same items into evidence

because they were not relevant and were more prejudi-

cial than probative, (3) there was insufficient evidence

to prove, as required for the crime of carrying a pistol

without a permit, that the defendant possessed a fire-

arm that had a gun barrel less than twelve inches in

length, (4) the court improperly denied the defendant’s

request for a third-party culpability instruction, and (5)

the court improperly refused to question a juror regard-

ing an issue of juror partiality that was raised after

conviction. We agree with the defendant that there was

insufficient evidence to prove, as required by § 29-35

(a), that the length of the barrel of the firearm used to

commit the crime was less than twelve inches. Accord-

ingly, we reverse the judgment of conviction as to that

count with direction to render a judgment of acquittal

on the charge of carrying a pistol without a permit. We

are not persuaded, however, by the remainder of the

defendant’s claims and, accordingly, affirm the judg-

ment of conviction in all other respects.

The facts, as could have been reasonably found by

the jury, and procedural history, are as follows. The

defendant and his friend, Dominick Gonzalez, arranged

a drug deal with the victim, Dewayne Gardner, Jr., in

order to rob him of drugs and money. Gonzalez knew

the victim because the victim regularly supplied him

with drugs that he then resold. Gonzalez asked the

victim to meet him at 178 Poplar Street in Bridgeport

so that he could purchase drugs from him.

In the early morning of December 16, 2013, the victim,

believing he was going to sell narcotics to Gonzalez,

drove a rental car to 178 Poplar Street. Prior to the

meeting, the victim had exchanged text messages with

Gonzalez. Gonzalez texted the victim that he was on

his way to make the purchase and later texted that he

had arrived at 178 Poplar Street. Gonzalez, however,

had sent these text messages from several miles across

town. Gonzalez, who was unable to get a ride to the

agreed upon location, did not want to inform the victim

that the defendant would be engaging in the transaction

because the victim trusted Gonzalez more than the

defendant.

In addition to exchanging text messages with the

victim, Gonzalez was also in contact with the defendant.

Gonzalez exchanged more than one dozen calls with

the defendant between 12:30 a.m. and 3 a.m. The defen-

dant was at his home on 1022 Hancock Avenue in

Bridgeport during these calls. Hancock Avenue runs

parallel to Poplar Street, with direct access to 178 Pop-

lar Street through a vacant lot. The victim was in his

car when the defendant arrived, with a firearm, to carry

out the robbery. During the robbery, the defendant fired

multiple gunshots into the car from the front passenger

side, striking the victim.

Gonzalez later called the defendant to see if he had

succeeded in the robbery. The defendant admitted to

Gonzalez that he had shot the victim. The defendant

also told Gonzalez that, after shooting the victim and

fleeing the scene, he returned to take the victim’s phone

in order to dispose of it.

The police were called to the scene to respond to a

report of a car accident. After being shot, the victim

apparently attempted to flee the scene, but his vehicle

hit a parked car at 211 Poplar Street. The police found

an unspent nine millimeter bullet and two spent shell

casings in the street at 178 Poplar Street. In the victim’s

car, they found bulletholes, bullets, and shell casings

showing that a gunman had shot into the car from the

passenger side. The victim sat dead in the driver’s seat,

with multiple gunshot wounds.

Although the victim habitually carried a cell phone

and money with him, no wallet, money, cell phone, or

drugs, other than a small amount of marijuana, were

found in the car. A pocket of the victim’s pants was

turned inside out.

After obtaining the victim’s phone records, the police

spoke with Gonzalez and seized his phone for evidence.

The police arrested Gonzalez on a charge of felony

murder on December 21, 2013. Gonzalez initially lied

to the police to protect himself and the defendant, but

eventually cooperated with police and testified at trial

pursuant to a plea deal.

Gonzalez told police that they could find ammunition

that he and the defendant had been trying to sell in

the basement of the multifamily house in which the

defendant lived on the third floor. After obtaining con-

sent from the owner of the house, the police searched

the basement and did, in fact, find ammunition, as well

as the sawed off barrel of a gun. A few days later,

after obtaining consent from the defendant’s mother to

search the defendant’s bedroom, the police found, inter

alia, an electronic scale, rubber gloves, and a Remington

ammunition tray for nine millimeter bullets in his room.

Forensic testing of the bullets and casings found at

the crime scene indicated that they were fired from the

tured, however, by three different companies and dif-

fered in metal, shape and stampings.

The defendant eventually was charged with felony

murder, robbery in the first degree and carrying a pistol

without a permit. On November 30, 2016, the jury found

the defendant guilty of all charges. On the conviction

of felony murder, the court, Kahn, J., sentenced the

defendant to forty-five years of incarceration and five

years of special parole. Additionally, the court sen-

tenced the defendant to a concurrent ten year term of

incarceration on the count of robbery and a concurrent

five year term of incarceration for carrying a pistol

without a permit. This appeal followed. Additional facts

will be set forth as necessary.

I

The defendant first claims that the trial court improp-

erly denied his motion to suppress evidence collected

from his bedroom because the police illegally had

searched his room without a search warrant. Specifi-

cally, the defendant contends that the trial court

improperly concluded that his mother had the authority

to consent to the search of his bedroom and that she

did so voluntarily. According to the defendant, the war-

rantless entry by police into his bedroom violated his

constitutional rights, and, therefore, the evidence seized

from this search should have been suppressed. We

disagree.

In its oral decision on the defendant’s motion to sup-

press, the court found the following additional facts.

At approximately 6 a.m. on January 11, 2014, police

officers arrived at the defendant’s residence to execute

an arrest warrant for the defendant charging him with

felony murder. Approximately eight detectives and four

uniformed officers arrived at the residence.

The defendant’s mother, Claudette Brown, opened

the door. The officers advised her that they had a war-

rant to arrest the defendant on the charge of felony

murder. Brown told them that he was not home and

gave the officers verbal consent to search the home for

him. After searching the apartment and not locating

the defendant, many of the law enforcement officers

departed in an attempt to find the defendant at his

girlfriend’s house, where Brown said he might be. The

only officers who remained at the defendant’s residence

were Lieutenant Christopher Lamaine and two police

detectives.

Brown identified the defendant’s bedroom to the offi-

cers. Lamaine noticed that the door was open and that

the inside of the room was visible.1 Brown was coopera-

tive and gave permission to the officers to search the

bedroom. Brown was calm and did not have difficulty

communicating with the officers. Brown was aware that

the police were investigating the homicide for which

they had obtained an arrest warrant for her son.

Although the officers carried weapons at the time of

the search, at no point did they unholster their weapons

during their initial search for the defendant or during

the subsequent search of his bedroom.

After Brown gave verbal consent to search the defen-

dant’s bedroom, Lamaine left the apartment to retrieve

a consent form from his vehicle, which Brown subse-

quently signed.2 After reviewing the form with Brown,

and observing her reading and signing it, the officers

began to search the defendant’s bedroom. The detec-

tives seized a number of items from the bedroom,

including an ammunition tray, gloves, and an elec-

tronic scale.

We turn next to the well established law and standard

of review that governs the defendant’s claim. ‘‘A war-

rantless search is not unreasonable under either the

fourth amendment to the constitution of the United

States or article first, § 7, of the constitution of Connect-

icut if a person with authority to do so has freely con-

sented to the search. . . . The state bears the burden

of proving that the consent was free and voluntary

and that the person who purported to consent had the

authority to do so. . . . The state must affirmatively

establish that the consent was voluntary; mere acquies-

cence to a claim of lawful authority is not enough to

meet the state’s burden. . . . The question whether

consent to a search has in fact been freely and volunta-

rily given, or was the product of coercion, express or

implied, [as well as whether the individual providing

consent possessed the requisite authority] is a question

of fact to be determined from the totality of all the

circumstances. . . . As a question of fact, it is . . . to

be decided by the trial court upon the evidence before

that court together with the reasonable inferences to be

drawn from that evidence.’’ (Internal quotation marks

omitted.) State v. Azukas, 278 Conn. 267, 275, 897 A.2d

554 (2006).

‘‘On appeal, we apply a familiar standard of review

to a trial court’s findings and conclusions in connection

with a motion to suppress. A finding of fact will not be

disturbed unless it is clearly erroneous in view of the

evidence and pleadings in the whole record . . . . The

conclusions drawn by the trial court will be upheld

unless they are legally and logically inconsistent with

the evidence. . . . Because a trial court’s determina-

tion of the validity of a . . . [seizure] implicates a

defendant’s constitutional rights, however, we engage

in a careful examination of the record to ensure that

the court’s decision was supported by substantial evi-

dence.’’ (Internal quotation marks omitted.) State v.

Douros, 90 Conn. App. 548, 553–54, 878 A.2d 399, cert.

denied, 276 Conn. 914, 888 A.2d 85 (2005).

‘‘In order for third-party consent to be valid, the con-

senting party must have possessed common authority

over or other sufficient relationship to the premises or

effects sought to be inspected. . . . The authority that

justifies the third party consent rests on mutual use of

the property by persons who have joint access or con-

trol for most purposes, so that any of the inhabitants

has the right to permit the inspection in his own right,

and the others have assumed the risk that any of the

cohabitants might permit the common area to be

entered. . . .

‘‘We also note that the overwhelming majority of the

cases hold that a parent may consent to a police search

of a home that is effective against a child, if a son or

a daughter, whether or not still a minor, is residing in

the home with the parents . . . . To overcome this

authority, the child must establish sufficiently exclusive

possession of the room to render the parent’s consent

ineffective. . . . Factors that [our Supreme Court] pre-

viously [has] considered when evaluating whether a

child has established sufficiently exclusive possession

of the room include: whether the child is paying rent;

who has ownership of the home; whether the door to

the bedroom is generally kept closed; whether there is

a lock on the door; whether other members of the family

use the room; and whether other members of the family

had access to the room for any reason.’’ (Citations omit-

ted; internal quotation marks omitted.) State v. Azukas,

supra, 278 Conn. 277–78.

In its oral decision on the motion to suppress, the

trial court relied on State v. Douros, supra, 90 Conn.

App. 548, to support its conclusion that the defendant’s

mother had the authority to permit the police to search

the defendant’s bedroom.3 Douros is factually analo-

gous to the present case. In Douros, after the adult

defendant fled the scene of a domestic dispute, his

mother gave the police permission to search his bed-

room. Id., 551–52. This court held that there was evi-

dence to support the trial court’s finding that the

defendant’s mother exercised sufficient control over

his bedroom to validly consent to a search of it by

the police. Id., 555. In Douros, the defendant’s mother

owned the house in which the defendant and his mother

resided. Id., 555–56. Additionally, she stated that she

had access to the room and gave the police permission

to search the room. Id., 552. This court concluded that

the evidence supported the trial court’s factual findings.

Id., 556.

In the present case, the trial court’s finding that

Brown had actual authority to consent to the search of

the defendant’s bedroom is not clearly erroneous. She

and her husband were the leaseholders of the apartment

and the parents of the defendant and, thus, presump-

tively had actual authority to consent to a search. In

order to refute this presumption, the defendant must

establish sufficiently exclusive possession of the room

to render the parent’s consent ineffective.4 To establish

that he had exclusive control over the room, the defen-

dant argued that the door to his room had a lock. His

bedroom door, however, was not always locked and

was not locked at the time of the search. Brown testified

that she regularly entered the defendant’s bedroom to

clean the floor and that the defendant had never told

her that she was not allowed in the room. Although she

would knock if he was home, if the defendant was not

home and the door was unlocked, she would enter the

room. Brown also testified that the defendant ‘‘chipped

in’’ with bills and rent, which could tend to show that

he had exclusive control over the room. Brown did not,

however, provide concrete details about these financial

contributions, such as whether the defendant paid a

fixed amount of rent. In sum, the court’s conclusion

that Brown had actual authority to consent to the police

search was supported by the evidence. Further, the

court’s conclusion that the defendant did not establish

sufficiently exclusive control of his bedroom that would

render Brown’s consent ineffective was supported by

the evidence.

We next review the court’s finding that the consent

to search was voluntarily given. The defendant argues

that, under the totality of the circumstances, Brown’s

consent was not valid because she had been coerced

to give her consent. Specifically, the defendant argues

that Brown’s consent was coerced because the search

occurred in the early morning and twelve police officers

were present at the house.

The trial court’s finding that Brown’s consent was

voluntary was supported by the evidence and, therefore,

not clearly erroneous. Although twelve officers initially

arrived at the home, that number reflected the fact that

they had come to arrest someone who they believed to

be armed and responsible for a homicide. All of the

officers except Lamaine and two police detectives left

the house before the consent to the search occurred.

Brown was unaware as to whether the officers carried

weapons. The officers obtained both verbal and written

consent from Brown, and Lamaine reviewed the con-

sent form with her.

Although the officers arrived at about six o’clock in

the morning, the officers did not forcefully enter the

home. There is no evidence that the officers roused

Brown out of bed in the middle of the night, broke

down the door in the early hours of the morning, pointed

their handguns at anyone or used loud or threatening

language. See State v. Reynolds, 264 Conn. 1, 45, 836

A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct.

1614, 158 L. Ed. 2d 254 (2004). Additionally, there is no

evidence that Brown initially refused to consent to the

search or that the officers implied that they would

obtain a warrant upon her refusal to consent to the

search. Cf. State v. Brunetti, 279 Conn. 39, 57, 70, 901

A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct.

1328, 167 L. Ed. 2d 900 (2007). Finally, Brown did not

herself suggest, during her testimony or otherwise, that

her decision to let the officers into her apartment was

anything but the product of her own free will. See State

v. Reynolds, supra, 45–46. Therefore, the court properly

denied the defendant’s motion to suppress the evidence

seized by the police from the defendant’s room.

II

The defendant next claims that the trial court abused

its discretion by admitting into evidence the ammuni-

tion tray,5 latex gloves, and electronic scale6 found in

the defendant’s bedroom because the items were not

relevant and, even if relevant, they were more prejudi-

cial than probative. We disagree.

The following additional facts are relevant to this

claim. During Lamaine’s testimony, the defendant

objected to the admission into evidence of the ammuni-

tion tray, latex gloves, and electronic scale, arguing that

they were not relevant and were unduly prejudicial.

Specifically, the defendant argued that the Remington

brand ammunition tray, which was empty when police

seized it, was not relevant because the bullets recovered

at the crime scene were not made by Remington. Fur-

ther, the defendant argued that the scale did not have

relevance to the present case because, although it may

have been relevant to a drug related crime, it did not

relate to the murder of the victim. The defendant further

argued that the plastic gloves were not relevant because

they could be used for many legal purposes, and the

defendant had been training for employment in the

health care field.

The state argued that the items were relevant and

more probative than prejudicial because the ammuni-

tion tray linked the defendant to the bullets found in

the basement and at the crime scene, the scale tended

to prove that the defendant was meeting the victim to

steal drugs, which could later be resold, and the gloves

tended to explain why the defendant’s DNA and finger-

prints were not found at the crime scene. The court

agreed, ruling that the items were relevant and that

their probative value outweighed their prejudicial

effect.

‘‘Relevant evidence is evidence that has a logical ten-

dency to aid the trier in the determination of an issue.

. . . Evidence is relevant if it tends to make the exis-

tence or nonexistence of any other fact more probable

or less probable than it would be without such evidence.

. . . To be relevant, the evidence need not exclude all

other possibilities; it is sufficient if it tends to support

the conclusion [for which it is offered], even to a slight

degree. . . . Evidence is not rendered inadmissible

because it is not conclusive. All that is required is that

the evidence tend[s] to support a relevant fact even to

a slight degree, so long as it is not prejudicial or merely

cumulative. . . .

‘‘Although relevant, evidence may be excluded by the

trial court if the court determines that the prejudicial

effect of the evidence outweighs its probative value.

. . . Of course, [a]ll adverse evidence is damaging to

one’s case, but it is inadmissible only if it creates undue

prejudice so that it threatens an injustice were it to be

admitted. . . . The test for determining whether evi-

dence is unduly prejudicial is not whether it is damaging

to the defendant but whether it will improperly arouse

the emotions of the jury. . . . Reversal is required only

[if] an abuse of discretion is manifest or [if an] injustice

appears to have been done.’’ (Citations omitted; internal

quotation marks omitted.) State v. Wilson, 308 Conn.

412, 429–30, 64 A.3d 91 (2013).

In the present case, we agree with the court that the

empty ammunition tray was probative to show that the

defendant stored and used nine millimeter bullets such

as those that were used in the underlying murder.

Lamaine testified that it appeared that nine millimeter

bullets would fit in the empty Remington ammunition

tray. Thus, the empty ammunition tray found in the

defendant’s bedroom provided a potential link to the

nine millimeter bullets and shell casings that were found

at the scene of the shooting, as well as the ammunition

seized from the basement of the defendant’s home.

Moreover, the fact that the ammunition tray was manu-

factured by Remington, but none of the bullets or shell

casings found at the scene were made by Remington,

does not vitiate the probative value of the ammunition

tray because the assortment of bullets in the basement

and at the crime scene tended to demonstrate that the

defendant did not use bullets from a single manufac-

turer. In sum, the empty ammunition tray tended to

demonstrate that these items were all connected to

the defendant.

We also agree that the latex gloves were relevant to

explain why none of the DNA evidence or fingerprints

collected at the scene was attributable to the defendant.

Gonzalez testified that the defendant wore gloves when

he committed robberies. A forensic scientist, called as

a witness by the state, testified that gloves could prevent

the transfer of fingerprints. Additionally, a forensic sci-

entist, called by the defense, admitted that gloves could

prevent the transfer of DNA. Therefore, the defendant’s

possession of latex gloves provided an explanation for

the absence of his DNA and fingerprints at the crime

scene and was, therefore, highly probative.

Finally, the presence of an electronic scale in the

defendant’s bedroom tended to demonstrate that the

defendant was involved in the sale of drugs and was

corroborative of Gonzalez’ testimony that the defendant

participated in the scheme to rob the victim of drugs

and money. Although the defendant argues that a scale

was not needed for this particular robbery, it was none-

theless relevant to show that he sold drugs, making his

involvement in a scheme to steal drugs more likely.

Although damaging to the defendant, these items

were not unduly prejudicial. The admission of the elec-

tronic scale, which tends to show that the defendant

was involved in the sale of drugs, was unlikely to shock

the jury because Gonzalez later testified, without objec-

tion, that the defendant used and sold drugs. Gonzalez

also testified, without objection, that the defendant car-

ried firearms and wore gloves during robberies to pre-

vent leaving evidence that would connect him to the

crime. Thus, these items were not likely to arouse the

emotions of the jury any more than the testimony pro-

vided by Gonzalez. Moreover, there is nothing inherent

in the nature of the items that would likely overcome

the reason of, or, ‘‘ ‘improperly arouse the emotions’ ’’

of the jury. State v. Wilson, supra, 308 Conn. 430. There-

fore, the court reasonably concluded that the evidence

was relevant and that its probative value outweighed

any undue prejudice to the defendant.

III

The defendant next claims that there was insufficient

evidence to sustain his conviction of carrying a pistol

without a permit under § 29-35 (a). Specifically, the

defendant argues that the state failed to introduce suffi-

cient evidence from which the jury reasonably could

have concluded beyond a reasonable doubt that the

length of the barrel of the firearm used to commit the

crime was less than twelve inches. In support of his

insufficiency claim, the defendant points to the fact that

there were no known eyewitnesses to the shooting and

that the firearm used to shoot the victim was never

found. Additionally, the defendant argues that the jury

was not presented with other circumstantial evidence

from which it reasonably could have inferred that the

length of the barrel of the firearm used to commit the

crime was less than twelve inches.

In response, the state contends that the following

circumstantial evidence presented to the jury permitted

it reasonably to infer beyond a reasonable doubt that

the defendant had used a firearm with a barrel less

than twelve inches in length to shoot the victim: (1)

testimony that the spent casings at the scene were fired

from a handgun; (2) the sawed-off barrel the police

discovered in the defendant’s basement; (3) the ballis-

tics evidence recovered at the crime scene and ammuni-

tion found in the defendant’s basement; (4) the fact that

the crime scene bullets and casings came from the same

gun; and (5) testimony that Gonzalez and the defendant

carried guns whenever they sold drugs, the defendant

was a ‘‘stickup guy,’’ and, in a prior robbery, the defen-

dant used a .22 caliber revolver. We agree with the

defendant that the evidence was insufficient to prove

beyond a reasonable doubt that he violated § 29-35 (a).

‘‘The standard of review we apply to a claim of insuffi-

cient evidence is well established. In reviewing the suffi-

ciency of the evidence to support a criminal conviction

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 con-

strued and the inferences reasonably drawn therefrom

the [finder of fact] reasonably could have concluded

that the cumulative force of the evidence established

guilt beyond a reasonable doubt. . . .

‘‘We note that the jury must find every element proven

beyond a reasonable doubt in order to find the defen-

dant guilty of the charged offense, [but] each of the

basic and inferred facts underlying those conclusions

need not be proved beyond a reasonable doubt. . . .

If it is reasonable and logical for the jury to conclude

that a basic fact or an inferred fact is true, the jury is

permitted to consider the fact proven and may consider

it in combination with other proven facts in determining

whether the cumulative effect of all the evidence proves

the defendant guilty of all the elements of the crime

charged beyond a reasonable doubt.’’ (Citation omitted;

internal quotation marks omitted.) State v. Perkins, 271

Conn. 218, 246, 856 A.2d 917 (2004).

‘‘Because [t]he only kind of an inference recognized

by the law is a reasonable one [however] . . . any such

inference cannot be based on possibilities, surmise or

conjecture. . . . It is axiomatic, therefore, that [a]ny

[inference] drawn must be rational and founded upon

the evidence. . . . [T]he line between permissible

inference and impermissible speculation is not always

easy to discern. When we infer, we derive a conclusion

from proven facts because such considerations as expe-

rience, or history, or science have demonstrated that

there is a likely correlation between those facts and the

conclusion. If that correlation is sufficiently compelling,

the inference is reasonable. But if the correlation

between the facts and the conclusion is slight, or if a

different conclusion is more closely correlated with the

facts than the chosen conclusion, the inference is less

reasonable. At some point, the link between the facts

and the conclusion becomes so tenuous that we call it

speculation. When that point is reached is, frankly, a

matter of judgment.’’ (Internal quotation marks omit-

ted.) State v. Reynolds, supra, 264 Conn. 93.

‘‘Moreover, 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 multi-

tude of facts which establishes guilt in a case involving

substantial circumstantial evidence. . . . In evaluating

evidence, the [finder] of fact is not required to accept

as dispositive those inferences that are consistent with

the defendant’s innocence. . . . The [finder of fact]

may draw whatever inferences from the evidence or

facts established by the evidence it deems to be reason-

able and logical. . . .

‘‘[A]s we have often noted, proof beyond a reasonable

doubt does not mean proof beyond all possible doubt

. . . nor does proof beyond a reasonable doubt require

acceptance of every hypothesis of innocence posed by

the defendant that, had it been found credible by the

[finder of fact], would have resulted in an acquittal.

. . . On appeal, we do not ask whether there is a reason-

able view of the evidence that would support a reason-

able hypothesis of innocence. We ask, instead, whether

there is a reasonable view of the evidence that supports

the [finder of fact’s] verdict of guilty.’’ (Citation omitted;

internal quotation marks omitted.) State v. Perkins,

supra, 271 Conn. 246–47.

Finally, ‘‘[w]e . . . emphasize the weighty burden

imposed on the state by the standard of proof beyond

a reasonable doubt. Under bedrock principles of our

criminal justice system, it is obviously not sufficient

for the state to prove simply that it is more likely than

not that the defendant was convicted of [the offense],

or even that the evidence is clear and convincing that

he was so convicted. . . . Our Supreme Court has

described the beyond a reasonable doubt standard as

a subjective state of near certitude . . . .’’ (Citation

omitted; internal quotation marks omitted.) State v.

Tenay, 156 Conn. App. 792, 810, 114 A.3d 931 (2015).

We now turn to the essential elements of the offense.

Section 29-35 (a) provides in relevant part: ‘‘No person

shall carry any pistol or revolver upon his or her person,

except when such person is within the dwelling house

or place of business of such person, without a permit

to carry the same issued as provided in section 29-28

. . . .’’ ‘‘[T]o obtain a conviction for carrying a pistol

without a permit, the state [is] required to prove beyond

a reasonable doubt that the defendant (1) carried a

pistol, (2) for which he lacked a permit, (3) while out-

side his dwelling house or place of business. . . .

‘‘The term pistol and the term revolver . . . as used

in [General Statutes §§] 29-28 to 29-38, inclusive, mean

any firearm having a barrel less than twelve inches in

length. General Statutes § 29-27. In cases in which a

violation of § 29-35 is charged, the length of the barrel

is . . . an element of [the] crime and must be proven

beyond a reasonable doubt. . . . We observe, however,

that, like the other essential elements of the offense,

the length of the barrel of a pistol or revolver may be

proven by circumstantial, rather than direct, evidence.

Direct numerical evidence is not required to establish

the length of the barrel of a handgun in question.’’ (Cita-

tions omitted; internal quotation marks omitted.) State

v. Covington, 184 Conn. App. 332, 340, 194 A.3d 1224,

cert. granted on other grounds, 330 Conn. 933, 195 A.3d

383 (2018).

Next, we examine the circumstantial evidence pre-

sented at trial from which the state contends a jury

reasonably could conclude that the firearm carried by

the defendant had a barrel length of less than twelve

inches. First, the state cites Officer Thomas Flaherty’s

testimony that the shell casings ‘‘were fired from a

handgun.’’ The state argues that ‘‘Officer Flaherty’s tes-

timony alone, that the bullet casings were shot from a

‘handgun,’ satisfies the element.’’7

The state, however, takes this testimony out of con-

text. The following exchange occurred between the

prosecutor and Officer Flaherty:

‘‘Q. And with regard to the spent casings, can you

describe to the jury what that means?

‘‘A. Rounds that were fired from a handgun. There’s—

a projectile discharged from the firearm. It’s just the

shell casing itself that, after a—after being fired, it’s

going to be in the area of—where the shots were fired.’’

When Officer Flaherty used the word ‘‘handgun,’’ he

was speaking in general terms. Indeed, in the very next

sentence, he refers more generally to a ‘‘firearm.’’ In

context, Officer Flaherty was not testifying that the

spent shell casings found at the scene came specifically

from a handgun. The state did not present any evidence

that shell casings are ejected only from handguns and

that the shell casings could not have come from a fire-

arm with a barrel length of twelve inches or more.

Moreover, the state’s ballistics expert did not testify

that the bullets found at the crime scene had been fired

from a handgun. The use of the generic term ‘‘handgun’’

during Officer Flaherty’s testimony to describe a spent

shell casing for the jury was not evidence from which

the jury could have reasonably concluded that the fire-

arm used in the crime in this case had a barrel that was

less than twelve inches in length.

Next, the state argues that the jury could infer that

the defendant carried a short-barreled firearm because

the police seized a sawed-off gun barrel from his base-

ment. In its brief, the state argues that ‘‘[t]he sawed-

off barrel in his basement showed that [the defendant]

had customized a long-barreled gun into a short-bar-

reled gun.’’ There is no evidence, however, that con-

nects the gun barrel found in the basement to any

firearm carried by the defendant or used to shoot the

victim. The state’s ballistics expert did not testify about

the gun barrel. There is no evidence as to what type of

firearm the barrel came from, when the gun barrel was

sawed off, if the remaining portion of the barrel would

be less than twelve inches in length, or whether the

firearm would still be capable of firing without the

sawed-off portion. The only testimony regarding what

type of firearm the barrel came from was during the

following colloquy between the prosecutor and

Lamaine:

‘‘Q. Detective, do you have any knowledge as to what

type of weapon that barrel could fit into?

‘‘A. I believe it was a .22 caliber.

‘‘Q. Do you want to look at it?

‘‘A. May I look at it?

‘‘Q. Yeah.

‘‘A. Refresh my recollection. It’s been a while. I don’t

see any markings. I mean, if you want to draw my

attention to some but—

‘‘Q. No. I just thought you might know.

‘‘A. No.

‘‘Q. But that particular item is meant to fit into a

gun; correct?

‘‘A. It is a gun barrel that’s been sawed off, yes.’’

Lamaine’s testimony simply establishes only that it

was, in fact, a sawed-off gun barrel. This testimony does

not tie the barrel to the evidence found at the crime

scene or to any specific type of firearm whatsoever.

Further, there was no testimony that a .22 caliber fire-

arm was capable of shooting nine millimeter bullets,

such as those recovered from the scene. Thus, any

inference that the gun barrel was connected to the

firearm used in the shooting would amount to sheer

speculation.

The state also asserts that the jury was entitled to

infer that the length of the barrel of the firearm used

to commit the shooting was less than twelve inches

from the ballistics evidence found at the crime scene

and in the defendant’s basement. We are not persuaded.

The state’s expert in the field of firearm and tool mark

examinations provided no testimony about the types

of firearms that use nine millimeter ammunition or the

barrel lengths of such firearms. Therefore, the type of

ammunition, without more, does not help to establish

that the length of the barrel of the firearm used to

commit the offense was less than twelve inches.

Finally, the state relies on certain portions of Gonza-

lez’ testimony as circumstantial evidence that the barrel

of the firearm was less than twelve inches. Specifically,

the state relies on Gonzalez’ acknowledgment that the

defendant was a stickup guy in response to a question

by defense counsel, and his testimony that the defen-

dant had used a .22 caliber revolver in a prior robbery

and that he and the defendant kept guns on them ‘‘[j]ust

in case.’’ Specifically, the state argues that the jury could

infer from this testimony that the defendant carried a

handgun that he could easily conceal and, thus, that

the gun used in the shooting must have had a barrel

less than twelve inches in length.

Regarding Gonzalez’ acknowledgment that the defen-

dant was a stickup guy, the state cites to Augustine v.

State, 201 Miss. 277, 291, 28 So. 2d 243 (1946), to contend

that ‘‘the common understanding of ‘stick-up’ is a hold-

up, usually by use of a pistol.’’8 Therefore, the state

asserts, Gonzalez’ acknowledgment that the defendant

was a stickup guy supports a finding that the gun used

by the defendant was a pistol or a gun with a barrel

length less than twelve inches. We are not persuaded

by this argument. The word ‘‘stickup’’ is commonly

understood as meaning a robbery with the use of any

weapon. See, e.g., Black’s Law Dictionary (10th Ed.

2014) p. 1640 (defining ‘‘stickup’’ as ‘‘[a]n armed robbery

in which the victim is threatened by the use of weap-

ons’’). Therefore, testimony that the defendant was a

stickup guy was not circumstantial evidence from

which the jury reasonably could infer that the length

of the gun barrel of the firearm used to commit the

offense was less than twelve inches.

We are also unpersuaded that Gonzalez’ testimony

that the defendant used a revolver in a prior robbery

and kept a gun on him ‘‘[j]ust in case’’ was evidence

from which the jury reasonably could infer that the

defendant had used a revolver or other short-barreled

firearm in the present case. Testimony that the defen-

dant merely carried a ‘‘gun’’ on him, with no specificity

regarding the size of the firearm, is not probative of

whether the firearm used in the present case was a

handgun with a barrel length of less than twelve inches.

Moreover, Gonzalez’ testimony that the defendant pos-

sessed a .22 caliber revolver is actually inconsistent

with the ballistics evidence collected at the crime scene.

That evidence suggests that a nine millimeter firearm

was used. Consequently, the defendant’s prior posses-

sion of a .22 caliber revolver lacks probative value

regarding the type of firearm used in the present case.

The testimony of Gonzalez is simply too vague and

imprecise to permit a jury reasonably to infer that the

defendant used a firearm with a barrel length of less

than twelve inches to shoot the victim in the present

case.

In sum, the jury reasonably could not have concluded

beyond a reasonable doubt that the firearm used by the

defendant in the underlying crime had a barrel of less

than twelve inches in length. We therefore conclude that

there was insufficient evidence to prove the required

elements under § 29-35 and the defendant’s conviction

on that charge must be reversed.

IV

The defendant next claims that the court improperly

declined his request to give a third-party culpability

instruction to the jury. We disagree.

The following additional facts are relevant to this

claim. The police found two fingerprints on the column

along the passenger door of the victim’s car. The loca-

tion of the fingerprints suggested that ‘‘somebody [had

been] reaching in [to the car].’’ One of the fingerprints

matched with someone named Allen Garrett through

the Automated Fingerprint Identification System.9 The

defendant offered no other information about Garrett

into evidence.

Prior to the close of evidence, the defendant submit-

ted a written request for a third-party culpability instruc-

tion. The court held a charge conference in which it

heard argument on the defendant’s request for a third-

party culpability instruction. The defendant argued that,

on the basis of the presence of Garrett’s fingerprint on

the victim’s vehicle, he was entitled to a third-party

culpability instruction. The court denied the defen-

dant’s request for a third-party culpability instruction,

concluding that ‘‘the factual predicate for [it did] not

exist.’’10

‘‘In determining whether the trial court improperly

refused a request to charge, [w]e . . . review the evi-

dence presented at trial in the light most favorable to

supporting the . . . proposed charge. . . . A request

to charge which is relevant to the issues of [a] case and

which is an accurate statement of the law must be given.

. . . If, however, the evidence would not reasonably

support a finding of the particular issue, the trial court

has a duty not to submit it to the jury. . . . Thus, a

trial court should instruct the jury in accordance with

a party’s request to charge [only] if the proposed instruc-

tions are reasonably supported by the evidence. . . .

‘‘It is well established that a defendant has a right to

introduce evidence that indicates that someone other

than the defendant committed the crime with which

the defendant has been charged. . . . The defendant

must, however, present evidence that directly connects

a third party to the crime. . . . It is not enough to show

that another had the motive to commit the crime . . .

nor is it enough to raise a bare suspicion that some

other person may have committed the crime of which

the defendant is accused. . . .

‘‘The admissibility of evidence of third party culpabil-

ity is governed by the rules relating to relevancy. . . .

Relevant evidence is evidence having any tendency to

make the existence of any fact that is material to the

determination of the proceeding more probable or less

probable than it would be without the evidence. . . .

Accordingly, in explaining the requirement that the

proffered evidence establish a direct connection to a

third party, rather than raise merely a bare suspicion

regarding a third party, we have stated: Such evidence

is relevant, exculpatory evidence, rather than merely

tenuous evidence of third party culpability [introduced

by a defendant] in an attempt to divert from himself

the evidence of guilt. . . . In other words, evidence

that establishes a direct connection between a third

party and the charged offense is relevant to the central

question before the jury, namely, whether a reasonable

doubt exists as to whether the defendant committed the

offense. Evidence that would raise only a bare suspicion

that a third party, rather than the defendant, committed

the charged offense would not be relevant to the jury’s

determination. A trial court’s decision, therefore, that

third party culpability evidence proffered by the defen-

dant is admissible, necessarily entails a determination

that the proffered evidence is relevant to the jury’s

determination of whether a reasonable doubt exists as

to the defendant’s guilt. . . .

‘‘[I]f the evidence pointing to a third party’s culpabil-

ity, taken together and considered in the light most

favorable to the defendant, establishes a direct connec-

tion between the third party and the charged offense,

rather than merely raising a bare suspicion that another

could have committed the crime, a trial court has a duty

to submit an appropriate charge to the jury.’’ (Citations

omitted; emphasis added; internal quotation marks

omitted.) State v. Arroyo, 284 Conn. 597, 607–10, 935

A.2d 975 (2007).

In the present case, the trial court concluded that a

third-party culpability instruction was not warranted

by a partial fingerprint of a third person on the vehicle

in the absence of other evidence connecting that person

to the crime. The fingerprint could have been left from

innocuous activity, rather than from someone involved

in the commission of the crime. Although there was no

direct evidence as to the ownership of the vehicle the

victim used on the night of the shooting, the victim was

known to use rental cars, and, in such instances, third

parties would readily have had access to the same car.

With nothing more, a partial fingerprint on the outside

of the car door does not satisfy the requirement that

there be a direct connection between a third party and

the crime.

The present case is factually analogous to State v.

James, 141 Conn. App. 124, 136–37, 60 A.3d 1011, cert.

denied, 308 Conn. 932, 64 A.3d 331 (2013). In James,

two pieces of evidence, a hat with a ‘‘mixed sample’’

of DNA and multiple fingerprints lifted from a car, were

linked to the defendant, as well as unidentified persons.

Id. 136–37. The hat was a ‘‘mixed sample,’’ meaning that

more than one person, including the defendant, had

contributed to its DNA profile. Id. The car had finger-

prints of the defendant and his accomplice, as well as

five fingerprints that did not belong to them. Id., 136.

Prior to closing arguments, the defendant requested a

third-party culpability charge on the basis of this infor-

mation, which the trial court denied. Id., 137. This court

ultimately held that ‘‘when viewed in a light most favor-

able to the defendant, the proffered DNA and fingerprint

evidence only indirectly and tenuously implicated third

parties without directly absolving or exculpating the

defendant, [and] the court did not abuse its discretion

by refusing to give a third party culpability instruction.’’

(Emphasis added.) Id., 138–39. As in James, the finger-

print evidence relating to Garrett only indirectly and

tenuously implicated him in this case.

There simply was no other evidence that could tend

to show that Garrett was somehow involved in the

commission of the victim’s murder, had a motive to

commit the crime, or that his involvement necessarily

exculpated the defendant from involvement as well.

Thus, even when we consider this evidence in the light

most favorable to the defendant, it did not establish a

direct connection between the third party and the

charged offense. Accordingly, we conclude that the trial

court properly determined that the defendant was not

entitled to a jury instruction on third-party culpability.

V

The defendant’s final claim on appeal is that the court

improperly declined to question a juror regarding an

issue of juror partiality that was raised after the jury

returned its verdict. Specifically, the defendant claims

that the court’s inquiry was inadequate under State v.

Brown, 235 Conn. 502, 668 A.2d 1288 (1995), and that

the court should have summoned the identified juror

back to court and questioned him regarding the event

that gave rise to a question about his partiality. We

disagree.

The following additional facts are relevant to this

claim. On January 27, 2017, after the defendant was

found guilty, but prior to sentencing, he filed a motion

for a hearing. The defendant claimed in that motion

that a juror had seen him being transported to court

by a correctional officer during the first week of trial

and thus became aware that he was incarcerated. This

knowledge, the defendant argues, violated his constitu-

tional right to the presumption of innocence. The court

granted the motion in part and a hearing was held on

the issue.

At the hearing, the defendant testified to the following

facts. A juror, who was driving a truck behind the defen-

dant, saw the defendant while he was being transported

to court in a prisoner transport vehicle. During trans-

port, the defendant was wearing an orange jumpsuit,

shackles and handcuffs, and was traveling in a light

gray sedan with no markings and windows that were

not tinted.11 The defendant was sitting across the seat

with his back to the driver’s side door and his legs up.

When he saw the defendant, the juror covered his face

with a folder and slowed his vehicle in order to put

distance between the two cars. The defendant first testi-

fied that this interaction took five to six minutes, but

on cross-examination, stated it was likely just over a

minute. He also testified that he immediately told his

attorney about the incident. His attorney, however, did

not remember the defendant informing him of the inci-

dent and had no notes recounting it.

After the hearing, the court denied the defendant’s

request to question the juror who allegedly saw him

being transported to court. The court found that the

defendant was not credible, and that even if the facts

alleged by the defendant were to be believed, there was

no basis for further inquiry.

We turn to the law that governs the defendant’s

claim.12 ‘‘Jury impartiality is a core requirement of the

right to trial by jury guaranteed by the constitution of

Connecticut, article first, § 8, and by the sixth amend-

ment to the United States constitution. . . . In essence,

the right to jury trial guarantees to the criminally

accused a fair trial by a panel of impartial, indifferent

jurors. . . . The modern jury is regarded as an institu-

tion in our justice system that determines the case solely

on the basis of the evidence and arguments given [it]

in the adversary arena after proper instructions on the

law by the court. . . . Consideration [by the jury] of

extrinsic evidence is presumptively prejudicial because

it implicates the defendant’s constitutional right to a

fair trial before an impartial jury. . . .

‘‘In the past, [our Supreme Court has] recognized that

the trial court has broad discretion to determine the

form and scope of the proper response to allegations

of jury misconduct. . . . In exercising that discretion,

the trial court must zealously protect the rights of the

accused. . . . We have limited our role, on appeal, to

a consideration of whether the trial court’s review of

alleged jury misconduct can fairly be characterized as

an abuse of its discretion. . . . Even with this circum-

scribed role, we have reserved the right to find an abuse

of discretion in the highly unusual case in which such

an abuse has occurred. . . . The trial judge’s discre-

tion, 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.’’ (Citations omitted; internal quota-

tion marks omitted.) Id., 522–24.

‘‘Although both the state and a criminal defendant

have an interest in impartial jury trials . . . after a jury

verdict has been accepted, other state interests emerge

that favor proceedings limited in form and scope. The

state has a strong interest in the finality of judgments

. . . and in protecting the privacy and integrity of jury

deliberations, preventing juror harassment and main-

taining public confidence in the jury system.’’ (Citations

omitted.) Id., 531.

Finally, Practice Book § 42-33 provides: ‘‘Upon

inquiry into the validity of a verdict, no evidence shall be

received to show the effect of any statement, conduct,

event or condition upon the mind of a juror nor any

evidence concerning mental processes by which the

verdict was determined. Subject to these limitations, a

juror’s testimony or affidavit shall be received when it

concerns any misconduct which by law permits a jury

to be impeached.’’ Therefore, a trial court must proceed

carefully in examining jurors regarding their verdict for

fear of straying into an improper examination of the

mental processes used by the jurors in reaching their

verdict. Cf. State v. Johnson, 288 Conn. 236, 264–65,

951 A.2d 1257 (2008).

In the present case, the court held a hearing regarding

the alleged misconduct and concluded that the defen-

dant’s allegations were not credible. The court simply

did not believe that the defendant told his attorney

about the alleged incident or that the incident happened

at all. After listening to testimony from the defendant

and reviewing cases cited by counsel, the trial court

held that there was ‘‘no factual or legal basis to conduct

any further inquiry into [the] matter, nor [was] there a

factual or legal basis for either the relief requested,

which [was] further inquiry of . . . the juror who alleg-

edly saw the defendant in a vehicle . . . [and] a motion

for a new trial.’’ The court concluded that, even if the

allegations were credited, the defendant was essentially

in a civilian vehicle, that due to his position in the

vehicle, his shackles and handcuffs would not have

been visible, and that it was unclear whether his cloth-

ing would have been visible.

The defendant relies on State v. Brown, supra, 235

Conn. 502, to argue that the court was required to sum-

mon the juror for questioning. Brown, however, is not

factually similar to the present case. In Brown, an anon-

ymous letter was sent to a judge alleging jury miscon-

duct in a case over which the judge had presided. Id.,

519–20. Defense counsel learned of the letter on the

day of sentencing. Id., 520. At that time, the defendant

orally amended his motion for a new trial to include

the alleged jury misconduct. Id., 520–21. The court

heard brief argument on both the defendant’s motion

for a judgment of acquittal and motion for a new trial,

and subsequently denied both motions. Id., 521. On

appeal, the defendant argued that the trial court had

violated his state and federal constitutional rights by

failing to conduct an evidentiary hearing to investigate

the allegations of jury misconduct in the letter. Id. Our

Supreme Court held that, although an evidentiary hear-

ing was not required, ‘‘in the circumstances of this case,

the trial court improperly failed to conduct any inquiry

whatsoever specifically addressing the allegations of

jury misconduct contained in the letter.’’ (Emphasis

added.) Id.

Brown was ‘‘one of [the] highly unusual cases of an

abuse of discretion.’’ Id., 524. ‘‘Although written anony-

mously, the letter was accurately addressed to the judge

who had presided over the defendant’s trial and con-

tained accurate information about the defendant and

the charges involved in the case. The letter also con-

tained specific and facially credible allegations of jury

exposure to racially derogatory remarks regarding the

defendant allegedly made by court officials, and named

as the source of these allegations a person who was

accurately identified as a juror.’’ Id., 524–25.

In the present case, and unlike Brown, the court held

a hearing regarding the alleged juror misconduct and

determined that the defendant’s allegations were not

credible. It was well within the discretion of the court,

especially considering the limitations of Practice Book

§ 42-33 and the state’s interest in preventing juror

harassment, to decline to question a dismissed juror

after evaluating the evidence from the hearing and

determining that the allegations of misconduct simply

were not credible. Brown does not require the court

to conduct a full evidentiary hearing, and certainly does

not require the court always to question a juror. There-

fore, the court did not abuse its discretion by declining

to question the juror regarding the alleged incident and

by denying the defendant’s request for a new trial.

The judgment is reversed only as to the conviction

of carrying a pistol without a permit in violation of § 29-

35 (a) and the case is remanded with direction to render

judgment of not guilty on that charge; the judgment is

affirmed in all other respects.

In this opinion the other judges concurred.

1

The record is unclear as to whether Lamaine observed that the defen-

dant’s bedroom door was open when the officers first arrived to the apart-

ment, or after the initial search for the defendant.

2

The form stated: ‘‘I, Claudette Brown, having been informed of my consti-

tutional right not to have a search conducted without a search warrant and

my right to refuse to consent to such a search, I do hereby consent to have

the following members conduct a complete search of my residence, place

of business, garage and/or place located at 1022 Hancock [Avenue], third

floor, Bridgeport, Connecticut.’’ The notice further stated that ‘‘these officers

are authorized to take from the aforesaid mentioned location such materials

or other property as they may desire and examine and perform tests on any

and all items seized.’’ It also states that ‘‘this written permission is being

given by me to the above named officers voluntarily and without duress,

threats, intimidation, or promises of any kind.’’ The notice was then signed

by Brown and two of the detectives or officers as witnesses.

3

If a person who does not have actual authority consents to a search,

the search may still be valid under the doctrine of apparent authority. The

United States Supreme Court has recognized an apparent authority doctrine,

under which ‘‘a warrantless entry is valid when based upon the consent of

a third party whom the police, at the time of the entry, reasonably believe

to possess common authority over the premises, but who in fact does not

do so.’’ Illinois v. Rodriguez, 497 U.S. 177, 179, 110 S. Ct. 2793, 111 L. Ed.

2d 148 (1990). The defendant argues that the trial court decided the motion

to suppress on the basis of the doctrine of apparent authority, rather than

actual authority, because it relied on Douros, which the defendant argues

is an apparent authority case. We are not persuaded by the defendant’s

argument that Douros was decided on the doctrine of apparent authority.

See State v. Azukas, supra, 278 Conn. 280 n.6. The court in Douros, and the

trial court in the present case, decided their respective cases on the basis

of the consenting party’s actual authority. Therefore, we do not undergo an

analysis of the reasonableness of the officer’s inquiry as required by the

apparent authority doctrine. See generally State v. Buie, 312 Conn. 574, 94

A.3d 608 (2014).

4

Our Supreme Court’s decision in State v. Azukas, supra, 278 Conn. 278,

imposes a burden shifting framework in circumstances in which ‘‘a son or

daughter, whether or not still a minor, is residing in the home with the

parents . . . .’’ In such circumstances, our Supreme Court has concluded

that the child must overcome the presumptive authority of a parent to

consent to search with sufficient evidence that the child has exclusive

possession of the bedroom.

5

An ammunition tray is a tray designed to store bullets. Each hole in the

tray is designed to hold one round of ammunition. The tray is a part of the

packaging that is often included with the purchase of rounds of ammunition.

6

An electronic scale is customarily used by narcotics sellers to weigh

narcotics in order to package and sell them. See State v. McNeil, 154 Conn.

App. 727, 731, 106 A.3d 320, cert. denied, 316 Conn. 908, 111 A.3d 884 (2015).

7

The state relies on State v. Miles, 97 Conn. App. 236, 242, 903 A.2d 675

(2006), for the proposition that testimony that a ‘‘handgun’’ was used in the

commission of the offense is enough to establish beyond a reasonable doubt

that the firearm had a barrel of less than twelve inches. See also State v.

Williams, 231 Conn. 235, 252, 645 A.2d 999 (1994), overruled in part on

other grounds by State v. Murray, 254 Conn. 472, 487, 757 A.2d 578 (2000);

State v. Covington, supra, 184 Conn. App. 345; State v. Fleming, 111 Conn.

App. 337, 347, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d

794 (2009); State v. Williams, 48 Conn. App. 361, 370–72, 709 A.2d 43, cert.

denied, 245 Conn. 907, 718 A.2d 16 (1998). The state places far more weight

on Miles than it will bear. In Miles, and the other cases cited previously,

there was testimony by an eyewitness who actually saw the firearm that

was used during the commission of the offense and described it to be a

‘‘handgun,’’ a small pistol, or otherwise described how the firearm was

handled or stored in a way such that it was likely to have a barrel length

of less than twelve inches. Here, there was no eyewitness who observed

the firearm used by the defendant and stated that it could be held in one

hand or concealed in a small space.

8

We note that the Mississippi Supreme Court cited no authority for this

common understanding. Moreover, this case was decided almost seventy-

five years ago and common parlance changes over time and geographic areas.

9

The Automated Fingerprint Identification System is a database of all the

images of the fingerprints taken either during an arrest booking procedure

or fingerprints submitted for background checks through job application

procedures. The database is kept in the state police bureau of identification.

10

The court however, did not preclude the defendant from arguing during

closing arguments that the presence of Garrett’s fingerprint raised a reason-

able doubt regarding the defendant’s guilt.

11

After the hearing had concluded, but before sentencing, the court con-

tacted marshals at the Department of Correction and determined that the

windows were, in fact, tinted. The court noted that this information did not

affect the outcome of the hearing.

12

Although we examine the defendant’s claim under the rubric of juror

misconduct, we recognize that even if the defendant’s version of events

were true, these events would not constitute misconduct by a juror, but

are more properly characterized as implicating the juror’s partiality. See

generally Daley v. J.B. Hunt Transport, Inc., 187 Conn. App. 587, A.3d

(2019) (contrasting juror misconduct from questions of juror com-

petency).