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State v. Guerrera

Court of Appeals of Connecticut

July 19, 2016


          Argued February 2, 2016.

         Appeal from Superior Court, judicial district of New Britain, Alander, J.

          John L. Cordani, Jr., with whom, on the brief, was Damian K. Gunningsmith, for the appellant in both cases and the cross appellee in AC 38312 (defendant).

          Jonathan M. Sousa, special deputy assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, and John H. Malone, supervisory assistant state’s attorney, for the appellee in both cases and the cross appellant in AC 38312 (state).

          Gruendel, Beach and Flynn, Js. [*]


          BEACH, J.

         This decision concerns two appeals, AC 37171 and AC 38312, and a cross appeal in AC 38312 arising from the same underlying criminal case. In a single, consolidated trial, a jury found the defendant, Michael Guerrera, guilty of assault in the first degree in violation of General Statutes §§ 53a-8 (a) and 53a-59 (a) (1), conspiracy to commit the assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1), and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1). The jury found the defendant not guilty of unlawful restraint in the first degree and conspiracy to commit murder. The jury was unable to reach a verdict as to the remaining charges of murder, conspiracy to commit kidnapping in the first degree, felony murder, and kidnapping in the first degree. The defendant moved to dismiss these remaining charges, and the court denied in part and granted in part the motion.

         In AC 37171, the defendant claims that the trial court erred by (1) concluding that the state had no Brady[1]obligation to review or to disclose the contents of telephone recordings preserved by the Department of Correction (department) at the state’s request; (2) excluding from evidence a recording of a coparticipant’s jail visit with his mother; (3) refusing to grant an evidentiary hearing on a possible violation of a sequestration order; and (4) concluding that there was sufficient evidence to sustain the defendant’s conviction of tampering with physical evidence. In AC 38312, the defendant claims that the state is collaterally estopped under the double jeopardy clause from retrying him on the charges of murder, kidnapping, and felony murder with the predicate felony of kidnapping. In its cross appeal, the state claims that the court improperly dismissed the charge of conspiracy to commit kidnapping in the first degree. We do not agree with any of the defendant’s claims in either of his appeals, nor dowe agree with the state’s claim in its cross appeal. Accordingly, we affirm the judgments of the trial court.

         As an initial matter, the underlying factual and procedural histories of these appeals warrant a thorough recitation and review. The jury reasonably could have found the following facts. The defendant and his brother, Dennis Guerrera, grew up in separate homes, but at some point Dennis Guerrera moved in with the defendant; Naomi Ball, their biological mother; and the defendant’s stepfather at their home in Waterbury. Dennis Guerrera had grown up in Bristol, and he eventually introduced the defendant to his friends in the area. These friends included Sarah Boilard and Michael Boilard, as well as Jonathan Wilcox, and Dylan Sherman, the victim. Sarah Boilard had dated both the victim and Dennis Guerrera at different times.

         The events surrounding the victim’s death began on February 21, 2011. That afternoon, Sarah Boilard and Michael Boilard picked up the defendant and Dennis Guerrera from their apartment in Waterbury, went to a Blockbuster store and then brought the brothers to the apartment the Boilards shared with Michael Boilard’s children at 56 Ingraham Place in Bristol. At one point during the evening, the victim called Sarah Boilard and asked if he and his cousin, Josh Desrosier, could come over to the Boilard residence. Sarah Boilard and Dennis Guerrera went to meet the victim and Desrosier at Fast Freddies, a Bristol gas station. The four returned to the Boilards’ apartment.

         Sarah Boilard, the victim, and Desrosier went into Sarah Boilard’s bedroom while Michael Boilard, the defendant, and Dennis Guerrera watched a movie. At one point during the movie, the defendant went into Sarah Boilard’s bedroom to retrieve a pair of Michael Boilard’s pants, which contained Michael Boilard’s wallet, keys, and cigarettes. The defendant gave Michael Boilard his pants. The victim and Desrosier left the apartment shortly thereafter. The defendant and Dennis Guerrera spent the night at the apartment.

         The following morning, Michael Boilard claimed that he had discovered that $750 in cash was missing from his wallet. When the defendant and Dennis Guerrera woke up, Michael Boilard demanded that they empty their pockets so that he could see whether either of them had the missing money. Both the defendant and Dennis Guerrera refused to let him search their pockets. Michael Boilard approached the defendant and attempted to frisk him. The defendant replied, ‘‘Are you serious? [The victim] was probably the one who stole it, not [me].’’ Id. Michael Boilard told the brothers ‘‘to do what they have to do, just get the money back.’’

         The defendant, Dennis Guerrera, and Sarah Boilard then spent approximately one hour walking around Bristol in search of the victim. At about noon, Sarah Boilard called Michael Boilard to pick up her, and the defendant and Dennis Guerrera. He brought the three of them back to the Boilards’ apartment. Michael Boilard left for work at about 3 o’clock in the afternoon. After Michael Boilard left, Sarah Boilard called the victim. She asked him if he had taken the money, and the victim replied that he had not.

         For the next several hours, the defendant, Dennis Guerrera, and Sarah Boilard went to various stores, watched a movie, listened to music, and ate dinner. They were not looking for the victim at that time, but after dinner Dennis Guerrera told Sarah Boilard that he wanted to try to call the victim again. She refused to let him use her cell phone. The defendant used the cell phone he shared with Dennis Guerrera to call the victim himself. The defendant argued with the victim and threatened to ‘‘kick his ass.’’ After five minutes of arguing, the defendant asked the victim to come over to talk about the situation and figure out what had happened to the money. The defendant assured the victim that if he came over, ‘‘there won’t be any problems.’’

         While waiting for the victim to arrive, Dennis Guerrera grabbed a wooden baseball bat from the bedroom. He then told Sarah Boilard to ‘‘get out, ’’ and she went outside of her apartment building and paced around. She was afraid that the defendant and Dennis Guerrera planned to fight the victim. The victim arrived and went into the Boilards’ apartment. A neighbor outside of the apartment overheard arguing, glass breaking, and a man’s voice screaming from inside the apartment. The neighbor specifically heard a man yell, ‘‘[d]ude, please stop!’’ The defendant testified that Dennis Guerrera had struck the victim in the head with the baseball bat numerous times. The defendant claimed that he had been injured from attempting to stop Dennis Guerrera from attacking the victim. The state police later obtained blood from inside the apartment matching the victim’s and the defendant’s DNA.

         The defendant, Dennis Guerrera and the victim exited the apartment. The defendant ordered Sarah Boilard to ‘‘clean up the mess.’’ When she refused, the defendant called her an ‘‘ungrateful spoiled bitch.’’ He also told her that if she talked to the police, and he ‘‘gets put away or locked up, that when he gets out that [Sarah Boilard was] next.’’ As Sarah Boilard started to walk away, she overheard the victim say, ‘‘I want to go home, please let me go home, I won’t tell anybody.’’ When she finally returned to the apartment, Sarah Boilard observed that the wooden baseball bat had been placed back in the bedroom closet and was stained with blood. She also noticed that her brother’s aluminum baseball bat was missing.

         Meanwhile, Wilcox received a telephone call from either the defendant or Dennis Guerrera. The caller- Wilcox could not discern which brother had placed the call-stated that they had fought with the victim at the Boilards’ apartment and requested that Wilcox pick them up at Fast Freddies. When Wilcox arrived at Fast Freddies, Dennis Guerrera got in the front seat and the defendant and the victim sat in the back of the car. The defendant held an aluminum baseball bat. The victim asked Wilcox to take him to the hospital, but the defendant told him to be quiet. Wilcox suggested that they take the victim to an area referred to as Buttermilk Falls in Terryville, and the defendant and Dennis Guerrera agreed.

         Upon arriving at the trailhead to Buttermilk Falls, Wilcox stopped the car. Dennis Guerrera and the defendant, who was still holding the baseball bat, retreated into the woods with the victim. Several minutes later, the defendant and Dennis Guerrera emerged from the woods without the victim. Getting back into the car, the defendant told Wilcox that he and Dennis Guerrera had used the baseball bat to hit the victim several times and that ‘‘blood was going everywhere . . . .’’ The victim began twitching, and the defendant and Dennis Guerrera resumed beating the victim with the baseball bat until the victim stopped moving completely. Wilcox observed that both Dennis Guerrera and the defendant had blood on their hands and clothing.

         On the morning of February 23, 2011, the victim’s body was discovered by a hiker in Buttermilk Falls. A state medical examiner concluded that the victim’s death had been caused by blunt traumatic head injury. On February 24, 2011, the police arrested the defendant, Dennis Guerrera, Sarah Boilard, Michael Boilard, and Wilcox for their participation in the various crimes perpetrated against the victim.

         The defendant told the police, and later testified consistently with these initial statements, that he had tried to stop Dennis Guerrera from beating the victim at the Boilards’ apartment. The defendant claimed that he had helped the victim clean his wounds and assisted him out of the apartment. According to the defendant, he and the victim entered Wilcox’s car only because Wilcox threatened them with a shotgun. Once they reached Buttermilk Falls, the defendant alleged that he had stayed in the car with Wilcox while Dennis Guerrera took the victim and the aluminum baseball bat into the woods.

         Dennis Guerrera pleaded guilty to assault in the first degree and murder. Following ten days of evidence and one week of deliberations, the jury found the defendant guilty of assault in the first degree as an accessory, conspiracy to commit assault in the first degree, and tampering with physical evidence. The jury found the defendant not guilty of unlawful restraint in the first degree and conspiracy to commit murder. The jury was unable to reach a verdict as to the charges of murder, felony murder, kidnapping in the first degree, and conspiracy to commit kidnapping in the first degree. The court sentenced the defendant to thirty-four years of incarceration and ten years of special parole.

         In August, 2014, the defendant filed a motion to dismiss the four charges on which the jury could not reach a verdict. This motion was granted as to the conspiracy to commit kidnapping charge, but denied as to the three remaining charges. These appeals, as well as the state’s cross appeal, followed. Additional facts relevant to each claim will be set forth accordingly.




         The defendant claims that the court erred by concluding that the state had no Brady obligation with respect to unreviewed telephone recordings preserved by the department when the court had found that the department had been acting as the investigative arm of the State’s Attorney’s Office in preserving the recorded calls. The defendant asks us to direct the state to disclose the recordings to the defense or to review the 1300 recordings ourselves and disclose any exculpatory information. We disagree with the defendant’s claim and deny the relief sought.

         Additional facts are necessary to resolve this claim. In its memorandum of decision issued on October 10, 2013, the court found the following relevant facts. The department records all inmate telephone calls and any noncontact visits with inmates by members of the public. An inspector from the State’s Attorney’s Office requested that the department preserve and monitor the telephone calls of Michael Boilard, Sarah Boilard, and Wilcox on approximately March 1, 2011. The State’s Attorney’s Office had also asked the department to monitor the calls of the defendant and Dennis Guerrera. Donald Lavery, the department telephone monitor assigned to review these calls, testified that he monitored approximately 10 percent of the 1300 recorded calls by using criteria developed by the department that helped identify the calls that were most likely to contain relevant information. When Lavery determined that a specific call that he reviewed related to the criminal case, he took notes and forwarded the information to the State’s Attorney’s Office. At that point, the office would determine whether it wanted to obtain a copy of the call from the department through the service of a subpoena or by executing a search warrant. Prior to his trial, the defendant caused a subpoena to be served on the department to produce copies of the recorded conversations. The state responded with a motion to quash.

         In granting the state’s motion, the court concluded that in this exceptional case, the department had acted as an arm of the state in the investigation of the crimes at issue.[2] Moreover, ‘‘[t]he evidence does establish that some calls . . . do involve relevant matters. . . . These calls are appropriately the subject of the defendant’s subpoena.’’ The court determined, however, that because the defendant offered no evidence that the unreviewed recordings contained relevant material and seemed to rely solely on ‘‘blind hope that some of them may contain relevant material, ’’ the subpoena amounted to a ‘‘classic fishing expedition.’’ The court ordered the department to provide the defendant with copies of any recorded calls that had been reviewed and that concerned the pending case and the defendant’s criminal charges, and any calls for which the department had provided the state with notes.

         On appeal, the defendant argues that the state possessed constructive knowledge of any material the department had preserved, regardless of whether the material actually had been reviewed by the department or the state, because the department had been acting as an investigative arm of the state. The state’s Brady obligation, the defendant claims, extended to any exculpatory evidence produced by its investigation, including the recordings. Our review of this issue is plenary. ‘‘Whether the [defendant] was deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary review. . . . The conclusions reached by the [trial] court in its decision . . . are matters of law, subject to plenary review. . . . Thus, [w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record. . . . Walker v. Commissioner of Correction, 103 Conn.App. 485, 491, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).’’ (Internal quotation marks omitted.) Hoskie v. Commissioner of Correction, 110 Conn.App. 845, 847–48, 956 A.2d 611, cert. denied, 289 Conn. 950, 960 A.2d 1037 (2008).

         ‘‘The United States Supreme Court has held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, supra, 373 U.S. 87; State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990). To prevail on a Brady claim, the defendant bears a heavy burden to establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material. . . . State v. Burke, 51 Conn.App. 328, 333, 723 A.2d 327 (1998), cert. denied, 248 Conn. 901, 732 A.2d 177 (1999).’’ (Internal quotation marks omitted.) Hoskie v. Commissioner of Correction, supra, 110 Conn.App. 847. ‘‘If . . . the [defendant] has failed to meet his burden as to one of the three prongs of the Brady test, then we must conclude that a Brady violation has not occurred.’’ Morant v. Commissioner of Correction, 117 Conn.App. 279, 296, 979 A.2d 507 (addressing only materiality prong of Brady test in concluding no Brady violation had occurred), cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009); see also State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006) (explaining that all three components of Brady test must be established to prevail on Brady claim).

         ‘‘Evidence that is not disclosed is suppressed for Brady purposes even when it is known only to police investigators and not to the prosecutor. . . . In addition, evidence is favorable if it is either exculpatory or impeaching. . . . Finally, evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’’ (Citations omitted; internal quotation marks omitted.) Morant v. Commissioner of Correction, supra, 117 Conn.App. 285.

         We begin by determining whether the defendant satisfied his burden to establish that the information contained in the recordings was favorable to the defense. The defendant asserts that the state and the department had ‘‘constructive knowledge’’ of any exculpatory information in the conversations that were recorded. This argument is not responsive to the requirements of the Brady analysis. Simply because the state and the department might be deemed to have constructive knowledge of the contents of the recordings does not necessarily indicate that the recordings in fact contained evidence ‘‘favorable to the defense, ’’ as required by the Brady test.

         The defendant is correct in his argument that the prosecutor is deemed to have constructive knowledge of exculpatory information within his or her files. In Demers v. State, 209 Conn. 143, 150–51, 547 A.2d 28 (1988), a case relied on by both parties and the trial court, our Supreme Court held that ‘‘[t]he prosecution’s duty to disclose applies to all material and exculpatory evidence that is within its possession or available to it . . . . Where evidence highly probative of [a defendant’s] innocence is in [the prosecutor’s] file, he should be presumed to recognize its significance even if he has actually overlooked it . . . .’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Nevertheless, ‘‘[a] defendant’s right to discover exculpatory evidence . . . does not include the unsupervised authority to search through the [state’s] files. . . . Defense counsel has no constitutional right to conduct his own search of the [s]tate’s files to argue relevance.’’ (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 267, 864 A.2d 666 (2004) (distinguishing between valid Brady violation claim in which state withholds exculpatory information and defendant’s claim that he was entitled to ‘‘an opportunity to sift through the records of the office of the chief state’s attorney in search of a potential Brady violation’’ [emphasis in original]), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005).

         Demers presents a compelling example of a prosecutor’s constructive knowledge of exculpatory evidence warranting disclosure to the defense under Brady. The petitioners in Demers had been convicted of sexual assault, robbery, and unlawful restraint, and had sought and been granted a new trial. On the respondent state’s appeal, the petitioners argued that a Connecticut police department-other than the one involved in the prosecution of the underlying criminal action and located in a different jurisdiction-possessed an arrest report that showed the victim had been arrested for prostitution ten months prior to her alleged sexual assault by the petitioners. Id., 149. The police report stated that the victim had walked over to a car, opened the door, and tried to escape when she realized the individual in the car was a police officer. Id., 158. At trial, the petitioners contended that the victim had walked up to their car in the same city in which she previously was arrested, and propositioned them to engage in sex for money. Id., 148. There was, then, a factual similarity between the petitioners’ account of the alleged sexual assault and the police report. See Demers v. State, supra, 209 Conn. 147–48, 158.

         The facts of the present case are readily distinguishable. In Demers, the state was ‘‘well aware of the fact that the [petitioners’] defense to the sexual assault charges against them, from the very inception of the case, was that the victim was a prostitute and had consented to the sexual acts alleged in return for payment.’’ Id., 151. Yet, when defense counsel informed multiple members of the State’s Attorney’s Office that he had ‘‘received information from the Waterbury police department, residents of the Grove Street area, and an assistant state’s attorney that the victim was a known drug user and a prostitute, ’’ the state merely asked the victim if she had been convicted of prostitution and did not conduct even a cursory investigation to determine the accuracy of the information. Id., 152. Here, there is nothing to indicate that the evidence contained in the recordings is even potentially helpful to the defendant. The defendant provided the court with no evidence that any exculpatory information was recorded at all. Indeed, at the hearing on the motion to quash, counsel for the defendant conceded that ‘‘I can’t cite anything exculpatory, [but] there may very well be exculpatory information that is not being turned over because nobody listened to it.’’ Unlike the State’s Attorney’s Office in Demers, which specifically had been directed to the victim’s arrest record, the state here did not have any information or indication that the recordings contained exculpatory evidence. The state, then, had no reason to conduct a more thorough investigation into the voluminous recordings preserved by the department.[3]

         Another case by our Supreme Court, State v. Colon, supra, 272 Conn. 267, further supports our rejection of the defendant’s argument. There, the defendant subpoenaed the State’s Attorney’s Office for documents regarding an investigation into alleged corruption at a Connecticut police department. The state filed a motion to quash, arguing that the documents were privileged. Id., 261. The trial court granted the state’s motion because, inter alia, the defendant had not established that the documents contained exculpatory information. Id., 262–63. On appeal, the defendant argued that he should be permitted to review the records for exculpatory material, or, alternatively, that our Supreme Court should review the records. Id., 266. The court rejected the defendant’s claim, noting that ‘‘the defendant’s claim is not that the state violated Brady by withholding certain exculpatory or material information. Rather, the defendant is seeking an opportunity to sift through the records of the office of the chief state’s attorney in search of a potential Brady violation.’’ (Emphasis in original.) Id., 267.

         Although the records in Colon had been reviewed by the State’s Attorney’s Office and determined by the office and the trial court to contain no exculpatory material, Colon is fatal to the defendant’s argument in the present matter. Without any showing by the defendant that the recordings contain exculpatory material and a failure to point to any authority that suggests such a showing is unnecessary, we conclude that the defendant does not have the right under Brady to review the recordings in an attempt to locate exculpatory material.

         We need not address the remaining prongs of the Brady test because the defendant has not met his burden of establishing that the recordings contain exculpatory evidence. SeeState v.Esposito, 235 Conn. 802, 815, 670 A.2d 301 (1996) (declining to review whether undisclosed evidence was favorable to defense because defendant did not show evidence was material). We conclude that there was no Brady ...

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