Argued
March 18, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of robbery
in the first degree, assault in the first degree, carrying a
pistol or revolver without a permit and tampering with a
witness, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before
Alander, J.; verdict of guilty; thereafter, the
court granted the defendant's motion for a judgment of
acquittal as to the charge of tampering with a witness, and
denied the defendant's motion to dismiss the charges of
robbery in the first degree, assault in the first degree and
carrying a pistol or revolver without a permit; judgment of
guilty of robbery in the first degree, assault in the first
degree and carrying a pistol or revolver without a permit,
from which the defendant appealed to this court.
Affirmed.
Shanna
P. Hugle, with whom was James B. Streeto, senior assistant
public defender, for the appellant (defendant).
Sarah
Hanna, assistant state's attorney, with whom, on the
brief, were Patrick J. Griffin, state's attorney, and
John M. Waddock, former supervisory assistant state's
attorney, for the appellee (state).
Keller, Bright and Flynn, Js.
OPINION
FLYNN,
J.
The
defendant, Matthew M. Pugh, appeals from the judgment of
conviction, rendered following a jury trial, of robbery in
the first degree in violation of General Statutes §
53a-134 (a) (2), assault in the first degree in violation of
General Statutes § 53a-59 (a) (5), and carrying a pistol
or revolver without a permit in violation of General Statutes
§ 29-35 (a). On appeal, the defendant claims that (1)
the evidence was insufficient to support his conviction on
each of these charges, (2) the trial court improperly denied
his motion to dismiss in which he contended that his right to
due process was violated by a preaccusation delay, and (3)
the court abused its discretion in giving any consciousness
of guilt instruction and committed plain error in giving the
actual instruction in this case. We disagree with the first
claim and conclude that the evidence sufficed to permit a
reasonable jury to find the defendant guilty of all charges.
We further conclude that the defendant has failed to show the
requisite actual, substantial prejudice to establish a due
process violation resulting from the preaccusation delay.
Finally, the court did not err by giving a consciousness of
guilt instruction because such an instruction is permissible
under our law and the evidence supported the giving of such
an instruction in this case. We affirm the judgment of the
trial court.
The
jury was presented with the following evidence upon which to
base its verdict. On August 21, 2008, at approximately 8
p.m., while Tatiana Grigorenko was walking on Edwards Street
near the corner of Nicoll Street in New Haven, she noticed
the defendant acting in a strange manner. On her right
shoulder, Grigorenko had a shoulder bag, which contained her
wallet, cash, credit cards, cell phone, keys, and other
personal items. She felt someone tug on her shoulder bag. The
defendant "swerved" in front of Grigorenko, pointed
a gun at her, and told her several times to give him the bag.
The defendant shot Grigorenko, striking her right thumb.
Grigorenko released her bag, and the defendant ran down
Nicoll Street carrying the bag. Grigorenko, who was in pain,
began screaming. Grigorenko was not able to identify the
defendant, but described her assailant as a black male, with
a medium complexion, who was wearing a do-rag on his head and
was "slightly" taller than her height of five feet,
four and one-half inches, in addition to some added height as
a result of her wearing "a little bit of heels . . .
."
At
approximately 8 p.m. that same evening, while Stephanie
Aquila was inside her house, which was located on the corner
of Lawrence and Nicoll Streets in New Haven, she heard what
she initially thought to be fireworks followed by screaming
coming from the direction of Edwards Street. She looked out
the window and saw a young, black, medium complexioned male,
approximately five feet six inches tall, who was wearing dark
loose fitting clothing and either a black baseball cap or a
do-rag. The man was carrying a purse under his right arm and
running down Nicoll Street from the direction of Edwards
Street toward Lawrence Street. Aquila was unable to identify
the runner from a photographic array that she was later shown
by the police.
At
approximately 8 p.m. on that same evening, Kris-tine Mingo
was in the passenger seat of a vehicle that was traveling on
Nicoll Street. Mingo's vehicle stopped at the corner of
Nicoll Street and Lawrence Street, and she saw a man carrying
a woman's handbag in his right hand, running on Nicoll
Street toward her vehicle from the direction of Edwards
Street. Mingo saw the man run past her vehicle and then turn
onto Lawrence Street. Mingo's vehicle followed the man as
he headed down Lawrence Street in the direction of Foster
Street. Mingo described the individual as a young, medium
complex-ioned black male between five feet five, and five
feet seven inches tall, who was wearing a loose dark shirt,
baggy pants, and a do-rag on his head. While Mingo's
vehicle was stopped at the intersection of Lawrence and
Foster Streets, the man "brushed against the front of
the car" and Mingo got a good look at him when they
"locked eyes and looked right at each other." On
August 29, 2008, a detective with the New Haven Police
Department showed Mingo a photographic array from which she
identified the defendant as the man she had observed on the
night of August 21, 2008.
On
August 23, 2008, one of Grigorenko's stolen credit cards
was used at Shaw's Supermarket, and other transactions
involving the credit cards were declined at the Burlington
Coat Factory. From a surveillance video at Shaw's
Supermarket, police identified Latricia Black as the
individual who used the stolen credit card. Black testified
that on August 23, 2008, a man named "Matt" drove
her, Joann Anderson, and another woman, [1] to Shaw's
Supermarket where Black purchased items with the stolen
credit card that Anderson had given to her. Black identified
the defendant, both in and out of court, as the man named
"Matt" who was driving the car. Black testified
that only she, Anderson, and Black's child went inside
Shaw's, and that all the individuals in the car went into
the Burlington Coat Factory. Black testified that the group
proceeded to Burlington Coat Factory, where a credit card
with the name "Tatiana" on it was declined multiple
times.
Following
a jury trial, the defendant was convicted of robbery in the
first degree, assault in the first degree, and carrying a
pistol or revolver without a permit. Thereafter, the
defendant filed a motion to dismiss the counts of the
substitute information charging him with robbery, assault,
and carrying a pistol without a permit on the ground that his
right to due process had been violated by the preaccusation
delay.[2] The court denied the motion on December
16, 2016. On January 26, 2017, the court sentenced the
defendant to a total effective sentence of fifteen years of
incarceration, to be served consecutively to an unrelated
sentence for murder that he then was serving. This appeal
followed.
I
The
defendant first claims that the evidence of identity was
insufficient to sustain his convictions for robbery in the
first degree, assault in the first degree, and carrying a
pistol or revolver without a permit. We disagree.
The
following principles guide our resolution of the
defendant's sufficiency of the evidence claim. The United
States Supreme Court held in Jackson v. Virginia,
443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that
the fourteenth amendment commands that "no person shall
be made to suffer the onus of a criminal conviction except
upon sufficient proof- defined as evidence necessary to
convince a trier of fact beyond a reasonable doubt of the
existence of every element of the offense."
"Unlike
Aristotelian and Thomistic logic, law does not demand
metaphysical certainty in its proofs. In law, we recognize
three principal proofs: beyond a reasonable doubt, which is
the very high burden in a criminal case; clear and convincing
evidence, required to prove fraud and certain other claims,
which equates to a very high probability; and preponderance
of the evidence, applied to civil claims ...