State v. Pugh

190 Conn.App. 794

212 A.3d 787

STATE of Connecticut

v.Matthew M. PUGH

AC 40402

Appellate Court of Connecticut.

Argued March 18, 2019

Officially released June 25, 2019

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.

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, Kristine 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 complexioned 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 generally, which means it is more probable than not. None of these varying proofs require absolute certainty.

"To meet one's burden of proof, evidence is necessary. This evidence comes in two forms, direct and circumstantial. The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to common experience.... Proof of a fact by the use of circumstantial evidence usually involves a two-step process. A fact is first established by direct evidence, which is ordinarily eyewitness or other direct testimony. That direct evidence can serve as a basis from which the jury infers another fact. Thus, the direct evidence may operate as circumstantial evidence from which a fact is inferred by the jury.... When the necessity to resort to circumstantial evidence arises either from the nature of the inquiry or the failure of direct proof, considerable latitude is allowed in its reception ....

"An inference is a factual conclusion that can rationally be drawn from other facts. If fact A rationally supports the conclusion that fact B is also true, then B may be inferred from A. The process of drawing inferences based on a rough assessment of probabilities is what makes indirect or circumstantial evidence relevant at trial. If the inference (fact B from fact A) is strong enough, then fact A is relevant to prove fact B. Inferences are by their nature permissive, not mandatory: although the fact proved rationally supports the conclusion the offering party hopes will be inferred, the factfinder is free to accept or reject the inference." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Curran v. Kroll , 118 Conn. App. 401, 408–10, 984 A.2d 763 (2009), aff'd, 303 Conn. 845, 37 A.3d 700 (2012).

"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 ...