Argued
March 15, 2018
Procedural
History
Information
charging the defendant with the crimes of murder, conspiracy
to commit murder, felony murder, robbery in the first degree,
carrying a pistol without a permit and criminal possession of
a firearm, brought to the Superior Court in the judicial
district of New Haven, where the charges of murder,
conspiracy to commit murder, felony murder, robbery in the
first degree and carrying a pistol without a permit were
tried to the jury before Alander, J.; thereafter,
the court declared a mistrial; subsequently, the charge of
criminal possession of a firearm was tried to the court;
judgment of guilty, from which the defendant appealed to this
court. Affirmed.
Naomi
T. Fetterman, assigned counsel, for the appellant
(defendant).
Timothy F. Costello, assistant state's attorney, with
whom, on the brief, were Patrick J. Griffin, state's
attorney, Stacey M. Miranda, senior assistant state's
attorney, and Karen A. Roberg, assistant state's attor-
ney, for the appellee (state).
DiPentima, C. J., and Elgo and Beach, Js.
OPINION
PER
CURIAM.
The
defendant, Jermaine Harris, was charged with murder,
conspiracy to commit murder, felony murder, robbery in the
first degree, carrying a pistol without a permit and criminal
possession of a firearm. He elected a jury trial except as to
the latter most charge, which was tried to the court. The
jury was unable to reach a verdict.[1] The court, however, found
the defendant guilty of criminal possession of a firearm in
violation of General Statutes § 53a-217 (a) (1), and
sentenced him to five years incarceration. He now appeals,
[2]
claiming that (1) the court's finding of guilt and its
sentence deprived him of his constitutional rights under the
sixth and fourteenth amendments to the United States
constitution, and (2) there was insufficient evidence to
support the conviction. We affirm the judgment of the court.
I
We
first[3] address the defendant's claims that
the court's finding of guilt and its sentence deprived
him of his constitutional right to trial by jury as well as
the due process rights to a fair trial and to the presumption
of innocence. The defendant concedes that his constitutional
claims are unpreserved and, therefore, requests review of
them or reversal of the judgment pursuant to State
v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823
(1989), [4] or the plain error doctrine,
[5] or
our supervisory authority over the administration of
justice.[6]
The
defendant's claims are premised on the notions that (1)
‘‘the trial court's [finding of guilt] on the
criminal possession of afirearm charge was impermissibly
based on its finding that [the defendant] had committed the
underlying murder'' and (2) ‘‘[t]he
sentence imposed . . . was predicated upon the court's
determination that [the defendant] was in fact the
shooter.''[7] We reject these arguments outright, and,
therefore, decline to review the defendant's unpreserved
claims.
During
trial on the charge before it, the trial court was entitled
to consider all the evidence presented and to come to a
conclusion different from that of the jury about what that
evidence proved. That much is clear from State v.
Knight, 266 Conn. 658, 663-74, 835 A.2d 47 (2003),
wherein our Supreme Court held that (1) a trial court sitting
as concurrent fact finder with a jury is not collaterally
estopped from finding facts that conflict with factual
findings of a jury; id., 663-66; and (2) a
court's finding of guilt is not impermissibly
inconsistent with a jury's verdict of not guilty where
‘‘there were multiple triers of fact deciding
separate counts, and each fact finder was consistent with
itself.'' Id., 672. The defendant here seeks
to distinguish Knight on the grounds that the jury
failed to reach a verdict and that ‘‘it is not
that the trial court's [finding of guilt] is
‘inconsistent' with the jury's inability to
reach a verdict but, rather, that the trial court's
[finding of guilt] is premised upon a determination that the
defendant has elected to be made by the jury, not the court.
. . . The court cannot independently render a determination
of guilt that conflicts with the jury's findings, here
the failure of the jury to reach a verdict at all.''
(Citation omitted.)
These
are distinctions without a difference. First, despite the
defendant's protestations to the contrary, the court did
not convict the defendant of any crime other than criminal
possession of a firearm. Rather, the court, in considering
the charge before it, merely found facts that
happened also to be relevant to the charges before
the jury. Asking whether the court may do this is asking
whether collateral estoppel applies. The answer is no.
State v. Knight, supra, 266 Conn. 664
(‘‘the doctrine of collateral estoppel does not
apply to the procedurally unique situation in which several
criminal charges against the same defendant have been
allocated between two triers for concurrent adjudication upon
virtually identical evidence'' [internal quotation
marks omitted]).
Second,
the finder of fact ‘‘is free to consider
all of the evidence adduced at trial in evaluating
the defendant's culpability, and presumably does so . . .
.'' (Emphasis added; internal quotation marks
omitted.) State v.Sabato, 321 Conn. 729,
742, 138 A.3d 895 (2005). Thus, we are unable to discern any
error, constitutional or otherwise, with the court's
consideration of, and conclusions about, the evidence
presented: That some evidence may have been ...