STATE v. ANTONIO PENA, SC 18717

Judicial District of Hartford

 Criminal; Whether, In Trial on Weapons Possession Charges, Testimony Concerning Defendant's Alleged Possession of a Gun on a Prior Occasion was Admissible; Whether Evidence of Charges of Which Defendant was Acquitted was Improperly Considered at Sentencing.  The defendant was charged with murder, carrying a pistol without a permit and criminal possession of a firearm in connection with a shooting in 2005.  At trial, Tory Cuyler, the victim's brother, testified that earlier that year, the police approached a car in which he and the defendant were seated and that the defendant took a gun out of his waistband and hid it under his seat.  Cuyler could not remember the exact date of the incident or whether the gun was the same gun found at the scene of his brother's murder.  The defendant objected to his testimony on the ground that whether he had a gun on the day of the victim's death was irrelevant.  He also claimed that he would be prejudiced if the jury knew that before the incident at hand, he had carried a gun and hidden it from the police.  The trial court overruled the objection, finding that the evidence was relevant to establish that the defendant had access to guns and that the probative value of the evidence outweighed any prejudice to the defendant.  The defendant was subsequently convicted of carrying a pistol without a permit and criminal possession of a firearm and acquitted of murder and the lesser included offense of first degree manslaughter with a firearm.  At sentencing, members of the victim's family spoke of the victim's death and referred to the defendant as the victim's murderer, and the trial court stated that, despite the jury's verdict, she believed that the defendant shot the victim.  After receiving the maximum sentence of five years incarceration on each charge, with the terms to run consecutively, the defendant appeals, claiming that the trial court improperly admitted Cuyler's testimony about his possession of a gun on a prior occasion.  He also claims that his rights to a jury trial and to due process of law were violated when, in sentencing him on the weapons possession charges, the trial court considered remarks by the victim's family relating to the murder of the victim and other evidence related to the charges of which the defendant was acquitted.