State v. Sherman

127 Conn.App. 377

13 A.3d 1138

STATE of Connecticut

v.Melvin Frank SHERMAN.

No. 29931.

Appellate Court of Connecticut.

Argued Oct. 27, 2010.Decided March 22, 2011.

Roy S. Ward, special public defender, for the appellant (defendant).Sarah Hanna, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony Spinella, assistant state's attorney, for the appellee (state).ROBINSON, BEAR and WEST, Js.ROBINSON, J.

The defendant, Melvin Frank Sherman, appeals from the trial court's judgments of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a–103, larceny in the third degree in violation of General Statutes (Rev. to 2005) § 53a–124, carrying a pistol without a permit in violation of General Statutes § 29–35(a), theft of a firearm in violation of General Statutes § 53a–212 and criminal possession of a firearm in violation of General Statutes § 53a–217 (a)(1). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of all of the charges, and (2) several of the prosecutor's statements during his closing and rebuttal arguments constituted prosecutorial impropriety that deprived him of his due process right to a fair trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The victim, Erica May Pagliuco, resided at 24 Pearl Street in Manchester. On August 12, 2006, the victim returned to her residence at approximately 3 p.m. and found the front door ajar. After walking through the residence, the victim discovered that several drawers had been opened, her bedroom mattress had been shifted and a pair of electric clippers and two handguns were missing.¹ She contacted the Manchester police department (department) and reported the disturbance.

Several minutes later, Jamie Taylor, an officer with the department, responded to the call. After speaking with the victim, Taylor and another officer entered the residence to investigate. They found that a screen covering a window in the living room had been damaged and removed. They also talked to a neighbor, who reported seeing a black male in his late teens wearing a green shirt standing in front of the residence during the time frame that the incident had occurred. The officers did not recover any fingerprints or other physical evidence.

On August 14, 2006, David Ellsworth, an officer with the department, responded to a complaint alleging that an individual had been threatened by a female with a gun at 107 Spruce Street in Manchester. After locating the suspect's vehicle traveling westbound on Interstate 384, Ellsworth made a felony motor vehicle stop of the vehicle and arrested the driver, Aretha Thomas. Thomas informed Ellsworth that an unloaded handgun was located in the vehicle. Ellsworth searched the vehicle and discovered a .380 caliber handgun along with the handgun's magazine underneath the front seat. The police later found .380 caliber ammunition on Thomas during a subsequent search of her person.

Jason Wagner, an officer with the department, ran a national database search on the handgun and learned that it had been reported missing after the burglary at the victim's residence. Bruce Tyler, a sergeant and firearms instructor with the department, subsequently tested the handgun. Although he had received the ammunition that the police recovered from Thomas, Tyler did not use this ammunition during his testing; instead, he used .380 caliber ammunition that was almost identical. He was able to fire six rounds from the handgun successfully.

Jeffrey Lampson, a detective with the department, was assigned to investigate the burglary at 24 Pearl Street. Lampson spoke with Thomas regarding the stolen handgun, and Thomas identified the defendant as the individual from whom she had purchased the gun. Lampson also spoke with several other individuals, including Betzaida Torres, Stacey Rubelmann and Heather Peterson, all of whom claimed to have information regarding the burglary. On the basis of Thomas' identification and the witnesses' statements, Lampson arrested the defendant in connection with the burglary at 24 Pearl Street.

The defendant was charged with burglary in the third degree in violation of § 53a–103, larceny in the third degree in violation of § 53a–124, theft of a firearm in violation of § 53a–212, carrying a pistol without a permit in violation of § 29–35(a) and criminal possession of a firearm in violation of § 53a–217 (a)(1). A jury trial was held on January 9 and 15, 2008. On January 15, 2008, at oral argument, the defendant moved for a judgment of acquittal on all counts, which was denied by the court. On January 17, 2008, the jury returned verdicts of guilty on all counts, and the defendant was sentenced on February 28, 2008.² This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support his conviction of all of the charges.³ In reviewing a sufficiency of the evidence claim, we utilize a two part analysis. “We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

In reviewing the sufficiency of the evidence, “it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Sinclair, supra, 197 Conn. at 576–77, 500 A.2d 539. Furthermore, “[t]he inquiry into whether the record evidence would support a finding of guilt 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 the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original; internal quotation marks omitted). State v. Boykin, 27 Conn.App. 558, 563–64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

“We must also acknowledge in our review of the evidence that it is the right and the duty of the jury to draw reasonable and logical inferences from the evidence.... Moreover, the jury may draw inferences on the basis of facts that it finds as a result of other inferences.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; internal quotation marks omitted.) State v. Haggood, 36 Conn.App. 753, 761, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).

A

The defendant first claims that there was insufficient evidence to support his conviction of burglary in the third degree because the state failed to adduce sufficient evidence to establish that he had entered the victim's residence unlawfully.⁴ We disagree.

The following additional facts are relevant to the defendant's claim. During August, 2006, Torres lived in an apartment at 2–4 Pearl Street in Manchester, which is located two buildings west of the victim's residence. At trial, Torres testified that the defendant and Yvonne Brown, the defendant's girlfriend at the time, had stayed at her apartment for a weekend in August, 2006. Although she could not remember the exact date, she did recall the defendant leaving the apartment sometime between 1 and 3 p.m. on Saturday and then returning approximately two hours later with a plastic shopping bag.

According to Torres, when the defendant returned, he and Brown went into the bathroom with the bag. After ten to twenty minutes had elapsed and the couple had not returned, Torres decided to check on them. Upon looking into the bathroom, Torres noticed Brown wearing an assortment of rings, bracelets, watches and necklaces that she had not been wearing previously. The couple then attempted to hide once more, this time moving into the bedroom, but Torres was able to observe the couple as they continued sorting through the contents of the bag, which included various items of jewelry and a pair of electric hair clippers. Shortly thereafter, Torres looked out of the apartment window and saw the police responding to a call at a nearby location.

While at Torres' apartment, the defendant gave Torres several pieces of jewelry, including a ring. Torres testified that she sold the ring to Connecticut Valley Coin, a pawnshop located in Manchester, approximately three or four days later. The defendant also set aside a small portion of jewelry, and then he contacted Thomas and Peterson to see if either would be interested in purchasing some of the jewelry or exchanging it for drugs.

Thomas testified that one or two days before she was arrested, she had met with the defendant twice, including once at...