State v. Douglas, 31146.

11 A.3d 699

126 Conn.App. 192

STATE of Connecticut

v.Travis DOUGLAS.

No. 31146.

Appellate Court of Connecticut.

Argued Oct. 13, 2010.

Decided Jan. 25, 2011.

Glenn W. Falk, special public defender, with whom, on the brief, was Jennifer Rae Taylor, law student intern, for the appellant (defendant).

Nancy L. Walker, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Ann P. Lawlor, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEAR and FLYNN, Js.

DiPENTIMA, C.J.

The defendant, Travis Douglas, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree with intent to cause physical injury to another person by means of the discharge of a firearm in violation of General Statutes §§ 53a-48 and 53a-59 (a)(5), conspiracy to commit assault in the first degree by means of a deadly weapon or dangerous instrument in violation of §§ 53a-48 and 53a-59 (a)(1), recklessendangerment in the first degree in violation ofGeneral Statutes § 53a-63 and carrying a pistol without a permit in violation of General Statutes § 29-35.¹ On appeal, the defendant claims that (1) there was insufficient evidence adduced at trial to sustain his conviction of conspiracy to commit assault in the first degree, reckless endangerment in the first degree and carrying a pistol without a permit, and (2) the trial court improperly admitted evidence of his prior uncharged misconduct. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. After moving from New Haven to Meriden, the defendant and his brother, Tavonne Douglas, became associated with a group of individuals known as the "New Haven boys." While attending Maloney High School in Meriden, animosity developed between the New Haven boys and members of the Twiss Street gang "over girls." This animosity frequently erupted into open acts of hostility, and the Meriden police department has made twenty to twenty-five arrests as a result of fights at the school between members of the two groups.

In a statement made to the Meriden police department on January 18, 2008, Robert Rios, who considered the defendant his best friend, recounted that the defendant had told him that the day after one of those fights in January, 2008, the defendant and his brother were standing outside the defendant's home when they were approached by a group of "guys and girls...." Feeling threatened, the defendant pulled out "a 38 or 32 revolver gun" that he had obtained from his cousin, Trevor Witherspoon, and fired two gunshots into the crowd. No one was hit on this occasion. Rios further recounted that the gun used on that occasion was givenback to Witherspoon, who took it back to New Haven. Rios also stated that the defendant had told him that he intended to buy another gun that day, which would be used "to shoot somebody or shoot up a party...."

Approximately four months later on April 30, 2008, longtime Meriden resident Heriberto Adorno was driving his truck on Liberty Street in Meriden with his wife when he passed three individuals wearing "shiny" jackets. Two of the jackets were hooded and black, one with a shiny gold leafy design, and the other with a silver tree and leaf design. Adorno thought the jackets were "funny looking" and shared a laugh with his wife. After passing these three individuals, Adorno testified, that he "looked in the [rearview] mirror [of his truck, and] they began to shoot." Although neither Adorno nor his wife saw a weapon, they both heard what they described as gunshots, and Adorno saw all three individuals he had passed with their hands positioned as if shooting a gun.²Adorno then saw these three individuals run together along Liberty Street to Center Street.

At no time did Adorno or his wife see the faces of these individuals.

Fearful for the safety of the children and adults that she had observed sitting on a nearby porch, Adorno's wife called 911 to report the incident. Members of the Meriden police department discovered four .38 caliber bullet shell casings on Liberty Street, which is a busy side street. One of the shells had a very fresh odor of gunpowder residue suggesting recent gunfire. The fact that none of the shell casings had been destroyed by car traffic also indicated that they had been recently discharged.

While canvassing the scene for witnesses, Detective John Williams spoke with a witness with whom he was familiar and who had provided him with reliable information about criminal activity in the past. Officer Brian Sullivan interviewed a group of visibly shaken teenage girls who were found in the vicinity of the crime scene on Liberty Street. On the basis of those interviews and the information provided by the Adornos, the Meriden police determined that the New Haven boys had shot at the Twiss Street gang and that the parties responsible for the shooting were outside 570 Broad Street, the home of the defendant.

Thereafter, Meriden police officers were dispatched to the home of the defendant where the defendant, his brother and Witherspoon were standing outside without jackets. After obtaining a search warrant, members of the Meriden police department searched the defendant's home and discovered two jackets matching the descriptions given by the Adornos. The defendant identified the black jacket with a silver tree or leafy design found on a couch inside the home as his own. The defendant's brother identified as his the jacket with the shiny gold leafy design that was found on a bed inside the home. The police took the two jackets into custodyand showed them to the Adornos, who positively identified them as the same ones they had seen worn by the individuals involved in the shooting incident earlier that evening. The defendant, his brother and Witherspoon were then arrested. While the police were processing the defendant, they discovered that he is left-handed.

After being read his Miranda³ rights, the defendant admitted to the police that he was at the scene of the shooting with his brother and Witherspoon where he encountered some of the boys on that block who had a "beef" with him and who were "messing" with him. The defendant, however, claimed that he did not know who fired the gunshots and that his group ran home after he heard the gunshots. More than six hours after the shooting, samples were taken from the hands of the defendant, his brother and Witherspoon. A gunshot residue test performed later returned negative results on all three samples. A gunshot residue test performed on the defendant's jacket, however, returneda positive result for lead at the opening to the left-hand pocket.⁴ Similarly, a gunshot residue test performed on the jacket belonging to the defendant's brother detected the presence of lead on the cuff of the left sleeve. An analysis of the shell casings performed at the state forensic science laboratory determined that they were .38 Remington casings, all fired from the same weapon,a semiautomatic pistol with a barrel no longer than six inches.

A jury trial was held on January 29 and 30, 2009. On February 3, 2009, the jury found the defendant guilty on all counts, and on March 31, 2009, the court sentenced him to eight years incarceration, followed by eight years of special parole.⁵ Additional facts will be set forth where necessary.

I

The defendant first claims that there was insufficient evidence adduced at trial to sustain his conviction of (1) conspiracy to commit assault in the first degree, (2) reckless endangerment in the first degree and (3) carrying a pistol without a permit. We disagree.

We begin by setting forth our standard of review. "[F]or the purposes of sufficiency review ... we review the sufficiency of the evidence as the case was tried.... Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error.... [A] claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial." (Internal quotation marks omitted.) State v. Nasheed, 121 Conn.App. 672, 682, 997 A.2d 623, cert. denied, 298 Conn. 902, 3 A.3d 73 (2010).

"The appellate standard of review of sufficiency of the evidence claims is well established. In reviewing a sufficiency [of the evidence] claim, 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 construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of theevidence established guilt beyond a reasonable doubt....

"The evidence must be construed in a light most favorable to sustaining the jury's verdict.... Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.... [T]he inquiry into whether the record evidence would support a finding of guilty beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt....

"We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.... We are content to rely on the [jury's] good sense and judgment." (Internal quotation marks omitted.) State v. Wells, 100 Conn.App. 337, 341-42, 917 A.2d 1008, cert. denied, 282 Conn. 919, 925 A.2d...