Argued
September 16, 2019
Procedural
History
Substitute
information charging the defendant with crimes of home
invasion, burglary in the first degree and robbery in the
first degree, and with three counts of the crime of stealing
a firearm, brought to the Superior Court in the judicial
district of Waterbury and tried to jury before Cremins,
J.; verdict and judgment of guilty, from which the
defendant appealed to this court. Affirmed.
Alice
Osedach, assistant public defender, for the appellant
(defendant).
Timothy J. Sugrue, assistant state's attorney, with whom,
on the brief, were Maureen Platt, state's attorney, and
Don E. Therkildsen, Jr., senior assistant state's
attorney, for the appellee (state).
Alvord, Prescott and Flynn, Js.
OPINION
ALVORD, J.
The
defendant, James Jarmon, appeals from the judgment of
conviction of home invasion in violation of General Statutes
§ 53a-100aa (a) (1), burglary in the first degree in
violation of General Statutes § 53a-101 (a) (3), robbery
in the first degree in violation of General Statutes §
53a-134 (a) (4), and three counts of stealing a firearm in
violation of General Statutes § 53a-212 (a). On appeal,
the defendant claims that (1) the state presented
insufficient evidence to prove beyond a reasonable doubt the
operability of each firearm the defendant stole, (2) the
trial court erroneously admitted into evidence a letter
written by the then incarcerated defendant that was
intercepted by a correction officer, and (3) the
defendant's conviction of home invasion and burglary in
the first degree violated his constitutional protection
against double jeopardy. We affirm the judgment of the trial
court.
The
jury reasonably could have found the following facts. On
April 12, 2015, Nathaniel Garris attended a birthday party
for his nephew. At the party, Garris spoke on the phone with
the defendant, whom Garris knew all his life and whom, though
they were unrelated, Garris referred to as his
‘‘cousin.'' It had been about four or
five months since Garris and the defendant had seen each
other last, and the defendant wanted to
‘‘chill'' with Garris to
‘‘catch up.'' The two met up that same
day and went to Niko Infanti's house.[1]
At
Niko's home, the defendant and Garris began playing video
games in Niko's bedroom. At one point, the defendant
observed a case in Niko's bedroom and asked if it
contained a guitar, to which Garris responded
‘‘no, that's a gun.''[2] At another
point, Garris retrieved a knife out of Niko's bedside
nightstand, which also contained Niko's handgun.
Thereafter, the defendant participated in a few phone calls;
the defendant left Niko's bedroom to pick up each phone
call.
While
the defendant and Garris were in Niko's bedroom, Kade was
in the kitchen using her laptop. An individual unknown to
Kade, later identified by the police as Brett Vaughn,
‘‘peeked his head in the back door'' and
asked for the defendant. Kade went to Niko's bedroom,
told the defendant that there was someone waiting for him at
the back door and returned to the kitchen. Once Kade arrived
back in the kitchen, Vaughn, who had entered the house,
grabbed her and put a gun to the back of her head. Meanwhile,
back in Niko's bedroom, Garris became upset with the
defendant after hearing Kade's message because he
perceived that the defendant had invited someone over without
asking him. Garris walked out to the kitchen to see who was
there waiting for the defendant and found Vaughn standing
behind a seated Kade with a gun pressed to her head. Garris,
who only knew Vaughn ‘‘from passing, ''
pleaded with him to point the gun at him rather than Kade, to
which Vaughn responded ‘‘[you're] beat,
don't die over something stupid.'' Vaughn then
yelled ‘‘hurry up.'' Christina heard the
disturbance from her own bedroom, came out to see its cause
and, after observing the scene, repeatedly told Vaughn to
leave. The defendant had remained in Niko's bedroom after
Garris walked to the kitchen and while this tumultuous scene
unfolded. He then emerged from Niko's bedroom with all
four of Niko's firearms in bags. The defendant and Vaughn
proceeded to leave out the back door, with Vaughn being the
first one out. As the defendant was exiting the back door,
Garris jumped on his back and was able to retrieve one of the
bags, which contained Niko's shotgun.
The
defendant was arrested on May 20, 2015, and charged in a
substitute information on September 29, 2016. On September
30, 2016, a jury returned guilty verdicts against the
defendant for home invasion, burglary in the first degree,
robbery in the first degree, and three counts of stealing a
firearm. On March 2, 2017, the court imposed on the defendant
a total effective sentence of ten years of incarceration,
followed by six years of special parole.[3] This appeal
followed.
I
The
defendant first claims there was insufficient evidence to
support his conviction of the three counts of stealing a
firearm because no evidence was admitted that demonstrated
the operability of the stolen firearms. The defendant argues
that ‘‘[o]perability, especially when the guns
were never recovered and there is no evidence the gun was
fired during the incident, has never been proven with such
scant evidence.'' The state responds that
‘‘it was reasonable to infer that [the guns] were
operable at the time that they were purchased'' and
that ‘‘[t]he jury could reasonably have inferred
that the firearms remained operable approximately one year
later when they were stolen by the defendant.'' We
agree with the state.
We
first set forth our standard of review. ‘‘In
reviewing a jury verdict that is challenged on the ground of
insufficient evidence, we employ a two part analysis. We
first review the evidence presented at trial, construing it
in the light most favorable to sustaining the facts expressly
found by the trial court or impliedly found by the jury. We
then decide whether, upon the facts thus established and the
inferences reasonably drawn therefrom, the trial court or the
jury could reasonably have concluded that the cumulative
effect of the evidence established the defendant's guilt
beyond a reasonable doubt. . . . The evidence must be
construed in a light most favorable to sustaining the
jury's verdict. . . . In reaching its verdict, the jury
can draw reasonable and logical inferences from the facts
proven and from other inferences drawn from the evidence
presented. Our review is a fact based inquiry limited to a
determination of whether the jury's inferences drawn were
so unreasonable as to be unjustifiable.'' (Citations
omitted; internal quotation marks omitted.) State v.
Bradley, 39 Conn.App. 82, 90-91, 663 A.2d 1100
(1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996).
Section
53a-212 (a) states that ‘‘[a] person is guilty of
stealing a firearm when, with intent to deprive another
person of such other person's firearm or to appropriate
the firearm to such person or a third party, such person
wrongfully takes, obtains or withholds a firearm, as defined
in subdivision (19) of section 53a-3.'' A
‘‘[f]ire-arm'' is defined as
‘‘any sawed-off shotgun, machine gun, rifle,
shotgun, pistol, revolver or other weapon, whether loaded or
unloaded from which a shot may be discharged . . .
.'' (Emphasis added.) General Statutes § 53a-3
(19). ‘‘Operability of the [firearm is] an
essential element of the [crime] charged under General
Statutes [§ 53a-212 (a)] . . . .'' State
v. Carpenter, 19 Conn.App. 48, 59, 562 A.2d 35,
cert. denied, 213 Conn. 804, 567 A.2d 834 (1989).
‘‘The operability of a firearm can be proven
either by circumstantial or direct evidence.''
State v. Bradley, supra, 39
Conn.App. 91.
As in
Bradley, the issue before us is
‘‘whether the jury could have drawn reasonable
inferences from the evidence to enable it to conclude, beyond
a reasonable doubt, that the gun that the defendant possessed
was operable.'' Id. The state points to the
following evidence in the record that would support a
conclusion that the firearms were operable. Niko lawfully
bought his three stolen firearms from sportsmen retailers
between March 27, 2014, and June 27, 2014.[4] Niko kept his
guns confined to his bedroom. The three long guns were in the
open space of his bedroom, but kept inside cases or bags and
fastened with some form of safety lock. The handgun was kept
in Niko's nightstand ‘‘in a locked
case.'' With the exception of Garris, who slept in
Niko's bedroom, Niko ‘‘[v]ery rarely let
anybody in that room.'' If Niko was not so diligent
about keeping his firearms in his bedroom, his mother would
have put him ‘‘out of the house in like point six
seconds.'' As such, the firearms left Niko's
bedroom only when he took them to the ‘‘training
grounds.''
The
defendant argues that this evidence is inadequate to prove
the operability of the firearms beyond a reasonable doubt. He
contends that his case is distinguishable from a number of
this court's past decisions in which operability was at
issue. See State v. Edwards, 100 Conn.App.
565, 575-76, 918 A.2d 1008 (testimony of witnesses describing
gun used in robberies, which matched gun found in
defendant's flight path and ballistics testing of which
showed it was same gun fired in separate shooting deemed
sufficient for operability inference), cert. denied, 282
Conn. 928, 929, 926 A.2d 666, 667 (2007); State v.
Miles, 97 Conn.App. 236, 241, 903 A.2d 675 (2006)
(operability proven where victim saw defendant with small
silver handgun that matched gun introduced into evidence,
defendant was only person victim saw with gun, and victim
identified defendant as shooter in photographic lineup and at
trial on cross-examination); State v.
Rogers, 50 Conn.App. 467, 469, 475, 718 A.2d 985
(front seat passenger displaying gun and fire coming from
passenger seat area sufficient evidence of operability),
cert. denied, 247 Conn. 942, 723 A.2d 319 (1998); State
v. Hopes, 26 Conn.App. 367, 376-77, 602 A.2d 23
(testimony that defendant pointed gun at witnesses inside
restaurant, within one minute followed witnesses outside
restaurant, then witnesses heard gunfire and
‘‘felt something pass close by their
heads'' sufficient to prove operability of
defendant's gun), cert. denied, 221 Conn. 915, 603 A.2d
405 (1992); see also State v. Beavers, 99
Conn.App. 183, 190, 912 A.2d 1105 (police test of gun
sufficient evidence of operability), cert. denied, 281 Conn.
925, 918 A.2d 276 (2007); State v. Bradley,
supra, 39 Conn.App. 91 (same); State v.
Zayas, 3 Conn.App. 289, 299, 489 A.2d 380 (same),
cert. denied, 195 Conn. 803, 491 A.2d 1104 (1985). The
defendant's reliance on these cases to demonstrate what
evidence is minimally necessary to prove operability is
unpersuasive. Each of these cases presents evidence
sufficient to prove operability, but a compilation of these
cases do not define a minimum standard of necessary evidence
to establish operability.
‘‘[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 experience, 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.'' (Internal quotation marks omitted.)
State v. Niemeyer, 258 Conn. 510, 518, 782
A.2d 658 (2001).
The
evidence presented in this case supports an inference of
operability because, from that evidence, the jury reasonably
could have concluded that the guns were operable. Niko stored
all of his firearms in his bedroom in cases or bags and with
safety locks on. He restricted access to his bedroom.
Niko's precautions evince an awareness that his firearms
were dangerous. It is reasonable to infer that operable
firearms would trigger such concern. Although a person might
take similar steps to secure inoperable firearms,
that possibility does little to negate the likelihood of
reasonable jurors relying on their common sense understanding
of firearms to infer that Niko's security measures
reflected that his firearms were operable. See id.,
519 (‘‘an inference need not be compelled by the
evidence; rather, the evidence need only be reasonably
susceptible of such an inference'' [internal
quotation marks omitted]).
The
defendant argues that regardless of the guns'
operability, ‘‘it is reasonable to infer that a
mother would not want a very young child or teenagers to have
access to two rifles and a handgun.'' The defendant
again ignores the most obvious explanation for the position
of Niko's mother: a gun is most dangerous if operable.
The defendant also implies, incorrectly, that the jury's
refusal to draw an inference more favorable to the defendant
makes the inference they did draw an unreasonable one. That
is not so. See id., 518-19 (‘‘[p]roof of
a material fact by inference from circumstantial evidence
need not be so conclusive as to exclude every other
hypothesis'' [internal quotation marks omitted]). The
fact that Niko's mother would not permit his firearms
being stored anywhere other than securely in his bedroom, and
that Niko assiduously followed his mother's ultimatum,
further supports an inference that these guns were operable.
Additionally,
Niko kept his handgun in a nightstand beside his bed. From
this, the jury reasonably could have inferred that Niko's
storing of his handgun in close proximity to his bed where,
while asleep, he might be most vulnerable, permits an
inference that he possessed the handgun for security
purposes. The jury then could have further inferred that such
a handgun was operable, or else it would be of little
security value. Niko also kept this handgun in a locked case.
As with the long guns, this permits an inference that Niko
took this safety measure because the handgun was an operable
firearm.
Lastly,
Niko bought the three stolen firearms from retailers, with
the earliest purchase made on March 27, 2014. The defendant
stole the guns on April 12, 2015. Accordingly, when stolen,
Niko's firearms were in his possession for no longer than
one year and sixteen days. Kade testified that the only time
Niko's firearms left his bedroom was to go to the
‘‘training grounds.'' Thus, the guns were
taken to the ‘‘training grounds, '' which
the jury reasonably could have inferred was a place to fire
the guns, and that the guns were therefore fired at least
once during the year and sixteen days[5]that Niko possessed
them. Therefore, the jury reasonably could have inferred that
the firearms were operable upon purchase and, because Niko
did take the guns to a firing range during the limited
duration of his ownership, remained operable when they were
stolen.
The
defendant cites to State v. Perez, 146
Conn.App. 844, 79 A.3d 149 (2013), cert. denied, 311 Conn.
909, 83 A.3d 1163 (2014), for the proposition that
‘‘a firearm left in storage without the proper
care and cleaning can become inoperable.'' In
Perez, a firearm became inoperable in the sixteen
months between a successful dry fire[6] of the firearm by
law enforcement and subsequent testing because the gun became
‘‘gummed up by a residue in the . . . cylinder
pin.'' (Internal quotation marks omitted.)
Id., 847. The gun still was found to be operable
because ‘‘the responding officer dry fired the
gun and observed that its firing mechanism was functional
shortly after the defendant possessed it . . . .''
Id., 850. We fail to see how Perez informs
our analysis in this case. Perez is a factually
distinguishable case, and the evidence used to prove
operability in that case is not required to prove operability
in this case.
Our
review of the record does not persuade us that the jury made
unreasonable inferences regarding operability. To the
contrary, the cumulative effect of the evidence in this case,
when construed in a light most favorable to sustaining the
jury's verdict, supports the jury's ultimate
conclusion that the state has demonstrated operability beyond
a reasonable doubt. See State v. Bradley,
supra, 39 Conn.App. 90.[7]
II
The
defendant next claims that the trial court erroneously
admitted into evidence a letter the defendant wrote to his
mother while incarcerated, which was intercepted by a
correction officer and forwarded to law enforcement. The
defendant argues that (1) the ‘‘court erred in
determining that the correction officer followed the
[department of correction (department)
regulation[8] when he turned over the
correspondence'' (footnote added); (2)
‘‘[t]he defendant maintained a reasonable
expectation of privacy in his letter written to [his] mother,
'' making its seizure a violation of the fourth
amendment to the United States constitution; and (3) the
department regulation ‘‘regarding inmate
correspondence is void for vagueness as applied to this
case.''
The
following additional facts are relevant to this issue. At
trial, on September 29, 2016, the state offered into evidence
a letter written by the then incarcerated defendant to his
mother, which was intercepted by a correction officer and
forwarded to law enforcement. After reviewing the contents of
the letter, the court was prepared to admit the letter as an
admission by the defendant. Conn. Code. Evid. § 8-3 (1)
(A). Defense counsel objected to the letter's admission,
stating that ‘‘when someone is incarcerated in a
Connecticut facility, they are stripped of most of their
expectation of privacy, but not all'' and that
‘‘I think [the department] has put a limit on
themselves that not just anybody can open a letter at their
own discretion.'' Defense counsel requested the
opportunity to voir dire a department representative
‘‘to see whether or not this opening of a letter
came at the direction of a unit manager by a person in
writing.'' The court permitted the voir dire of
Correction Officer Evan Charter. After the voir dire
concluded, defense counsel argued that the department
‘‘did not follow the directive. Just because
someone is in a category of high bond or pretrial doesn't
necessarily . . . further substantial interest[s] of
security, order or rehabilitation.'' The court asked
defense counsel, ‘‘[w]ould you agree [that the
regulation] was followed in this situation?'' Defense
counsel responded, ‘‘I would agree [Officer
Charter] followed [the regulation].'' The court
‘‘allow[ed] the letter to come in, '' and
defense counsel stated, ‘‘I still stand by my
objection . . . .'' Additional facts will be set
forth as necessary.
A
We
begin with the defendant's claim that ‘‘[t]he
trial court erred in determining that [Officer Charter]
followed the [regulation] when he turned over the
correspondence'' to law enforcement. We conclude that
the defendant never distinctly raised this claim at trial. It
is therefore unpreserved and unreviewable on appeal.
The
regulation governs the review of an inmate's outgoing
general correspondence.[9] The regulation authorizes the
‘‘Unit Administrator'' to select
‘‘specific inmate(s)'' or inmates
‘‘on a random basis'' to have their
outgoing general mail reviewed if there is
‘‘reason to believe that such reading is
generally necessary to further the substantial interests of
security, order or rehabilitation.'' The regulation
further directs the ‘‘Unit
Administrator'' to designate in writing the
‘‘person(s)'' who will review inmate
mail. Under the regulation, those designated
‘‘person(s)'' are given the authority to
restrict, confiscate, return to the inmate, retain for
further investigation, refer for disciplinary proceedings or
forward to law enforcement officials any outgoing general
correspondence that ‘‘contain[s] or
concern[s]'' a list of nine prohibited inmate
actions. See Regs., Conn. State Agencies § 18-81-31 (a).
The
focus of the defendant's voir dire of Officer Charter was
on the decision to review the defendant's mail in the
first instance, not on whether the mail could be provided to
law enforcement. Defense counsel's initial objection to
the court was that the department ‘‘put a limit
on themselves that not just anybody can open a letter at
their own discretion.'' Defense counsel requested the
voir dire ‘‘to see whether or not this opening of
a letter came at the direction of a unit manager by a person
in writing.'' During voir dire, Officer Charter
testified that he did not make the initial decision to review
the defendant's general outgoing mail.[10] After
voir dire, defense counsel argued that the regulation was not
followed because reviewing the mail of a high bond or
pretrial inmate ‘‘doesn't necessarily . . .
further substantial interest[s] of security, order or
rehabilitation.'' The voir dire did not explore
Officer Charter's decision to forward the defendant's
letter to law enforcement after a review of the letter.
Now, on
appeal, the defendant claims that ‘‘[t]he trial
court erred in determining that [Officer Charter] followed
the [regulation] when he turned over the
correspondence.'' This claim, challenging Officer
Charter's authority and decision to turn the
defendant's letter over to law enforcement pursuant to
the regulation, is a claim that was not distinctly raised at
trial. As such, it is unpreserved and not reviewable. See
Practice Book § 60-5; State v.
Morquecho, 138 Conn.App. 841, 851, 54 A.3d 609,
cert. denied, 307 Conn. 941, 56 A.3d 948 (2012).
In his
reply brief, the defendant claimed for the first time that
‘‘[t]here is no doubt that [the] trial counsel
was objecting on the basis that the correction officer was
not authorized to read the defendant's outgoing letter
solely on the basis that he was being held on a high
bond.'' We decline to review this claim because
‘‘arguments cannot be raised for the first time
in a ...