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State v. Walker

Court of Appeals of Connecticut

March 20, 2018

STATE OF CONNECTICUT
v.
EUGENE L. WALKER

          Argued September 7, 2017

         Procedural History

         Substitute information charging the defendant with the crimes of felony murder, manslaughter in the first degree with a firearm, manslaughter in the first degree, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, carrying a pistol without a permit and criminal possession of a pistol or revolver, brought to the Superior Court in the judicial district of Ansonia-Milford, where the court, Iannotti, J., granted the state's motion to consolidate the case with the case of a codefendant; thereafter, the state filed a substitute information charging the defendant with the crimes of felony murder, manslaughter in the first degree with a firearm, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, carrying a pistol without a permit and criminal possession of a pistol or revolver; subsequently, the matter was tried to the jury before Markle, J.; thereafter, the court, Markle, J., denied the defendant's motions to sever and for a mistrial; subsequently, the court, Markle, J., granted the defendant's motion for a judgment of acquittal as to the charge of carrying a pistol without a permit; verdict of guilty of felony murder, manslaughter in the first degree with a firearm, attempt to commit robbery in the first degree and criminal possession of a pistol or revolver; thereafter, the court, Markle, J., denied the defendant's motions for a judgment of acquittal and a new trial, and rendered judgment in accordance with the verdict, from which the defendant appealed. Reversed in part; judgment directed; further proceedings.

          Damian K. Gunningsmith, with whom were John L. Cordani, Jr., and, on the brief, Moira L. Buckley, assigned counsel, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Cornelius P. Kelly, supervisory assistant state's attorney, for the appellee (state).

          Alvord, Kahn and Bear, Js.

          OPINION

          KAHN, J.

         The defendant, Eugene L. Walker, appeals from the judgment of conviction, rendered following a jury trial, of felony murder in violation of General Statutes § 53a-54c; manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a); attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2); and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1). The defendant claims that the trial court (1) violated his right to confrontation by permitting a laboratory analyst to testify regarding a known DNA sample processed by another analyst in the same laboratory; (2) violated his right to due process when it declined to either strike certain testimony or grant the defendant's motion for a mistrial; (3) erred in admitting certain testimony under the coconspirator exception to the hearsay rule; (4) erred in denying his motion to sever his trial from that of his codefendant; (5) erred in admitting certain evidence at trial; and (6) violated double jeopardy by convicting him of both manslaughter and felony murder. We affirm the judgment in part, and we reverse the judgment in part.

         The following facts and procedural history are relevant to our resolution of this appeal. On the night of October 28, 2012, Anthony Adams, the codefendant in this consolidated trial, telephoned Alexis Morrison to ask if she knew ‘‘somebody that could sell him some weed.'' Morrison called Neville Malacai Registe, the victim, to arrange for him to meet with Adams in the parking lot of her West Haven residence. When the victim received Morrison's telephone call, he was with his friend, Stephon Green, at his mother's home in New Haven. After some time, the victim and Green left in the victim's Acura. As they approached the designated parking lot, the victim called Morrison. Morrison then telephoned Adams to tell him that the victim ‘‘was there.'' Adams replied that he had already left because the victim ‘‘took too long . . . and that Day-Day and GZ [were] going to get the weed.'' ‘‘Day-Day'' and ‘‘GZ'' were nicknames for Daquane Adams, who is Anthony Adams' cousin, and the defendant, respectively, both of whom Morrison knew.

         When the victim and Green arrived in the parking lot, the victim backed his car into a parking space. Green, who was rolling a marijuana joint in the front passenger seat, looked up and noticed two men approaching the Acura. He returned his attention to his task, and the victim opened the driver's door to talk to one of the men. The man, who was wearing a black bandana and who was later identified as the defendant, held a revolver inside the car and said, ‘‘run it, '' meaning, ‘‘give me it. It's a robbery . . . .'' A physical altercation ensued. The second man, later identified as Daquane Adams, stepped away from the Acura and placed a cell phone call to someone. A Toyota arrived, and a third man exited that car and asked the defendant for the gun.[1] The struggle over the gun continued inside the victim's Acura, and someone knocked Green into the backseat. Daquane Adams and the third man pulled the defendant out of the car and, as Green was climbing back into the front passenger seat, a shot was fired. Green heard the victim say, ‘‘oh, shit, '' and then heard a second shot.

         The defendant, Daquane Adams, and the third man got in the Toyota and drove toward the parking lot exit. With the victim slumped over in the driver's seat, Green pursued the Toyota. He caught up to it at the end of the street and rammed the Acura into the back of the Toyota. The victim's Acura was disabled, but the Toyota was able to be driven away. The victim died of a gunshot wound to his head.

         The defendant's case was consolidated for trial with that of his codefendant, Anthony Adams.[2] Following trial, the jury found the defendant guilty of felony murder, manslaughter in the first degree with a firearm, attempt to commit robbery in the first degree, and criminal possession of a pistol or revolver. The jury found him not guilty of the charge of conspiracy to commit robbery. The court imposed a total effective sentence of forty-five years incarceration followed by ten years special parole. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that he was deprived of his right to confrontation under the federal constitution when the court permitted a forensic science examiner to testify about the results of a comparison she made between (1) a DNA profile she generated from crime scene evidence and (2) a DNA profile another analyst in the laboratory generated from the defendant's buccal swab, without requiring the other analyst to testify.[3]We disagree.

         The following additional facts that the jury reasonably could have found are relevant to this claim. The police recovered a black bandana from the Acura and sent the bandana and the victim's bloodstain to the state's Division of Scientific Services laboratory for analysis. The police also obtained and sent additional known samples to the laboratory, including buccal swabs from the defendant, his codefendant and Daquane Adams. Although Heather Degnan, a supervisory forensics examiner, visually inspected all of the samples, including the buccal swab obtained from the defendant, per standard laboratory procedure the known samples were processed by the laboratory's ‘‘known processing group'' (group). Degnan processed the bandana using the standard forensic DNA typing techniques used in the laboratory. She isolated DNA from two sites on the bandana and generated DNA profiles (evidentiary profiles) that contained a mixture of DNA from at least two contributors, one of which was deemed a major contributor and the other, a minor contributor. An analyst in the group generated DNA profiles from the known samples (known profiles) and sent them to Degnan. Degnan compared the evidentiary profiles she had extracted from the DNA on t he bandana with the known profiles. Degnan's analysis determined that the defendant was included as a major contributor to the DNA that was on the bandana.[4] She also entered the evidentiary profile of the major contributor to the DNA found on the bandana into the Connecticut and national DNA databases[5] and obtained a ‘‘hit'' for the defendant because his DNA profile had been entered due to a prior felony conviction. Degnan prepared a report summarizing her findings.[6]

         At trial, Tammy Murray, the detective who took the buccal swab from the defendant, testified that she obtained a subpoena for nontestimonial evidence and testified about the established procedure she followed to take the sample from the defendant. The buccal swab itself was introduced into evidence along with the bandana. After Murray's testimony, the state called Degnan to testify about her analysis and findings. She first testified about the procedures she followed when analyzing the DNA found on the bandana. Degnan explained that she swabbed the bandana and generated an evidentiary profile from each side of the bandana, and that the group processed and generated the known profiles from the defendant's buccal swab and the victim's bloodstain. According to Degnan, this division of tasks took place according to ‘‘standard operating procedure.'' The group then provided the known profiles to Degnan for comparison with the evidentiary profiles.

         Prior to the admission of Degnan's findings, defense counsel objected to Degnan's testimony and the admission of her report on the grounds that Degnan was not competent to testify about the known profiles and that there was a lack of foundation for this evidence. Specifically, the defendant's counsel objected because Degnan had not been formally qualified as an expert. Counsel for Anthony Adams objected on the ground that Degnan did not process the known samples herself but, rather, obtained the results ‘‘second hand.''[7] The court, Markle, J., overruled the objections and allowed Degnan to testify as to the results of her analysis.

         Degnan testified that, on the basis of her analysis and comparison, the defendant was a major contributor to the DNA found on both sides of the bandana. On cross-examination, Degnan elaborated that she had ‘‘examined the known samples and then sent those samples to the known processing group for extraction and amplification, '' but had not been present for that stage of the process. She was, however, familiar with the group's functions. She noted that the laboratory's use of known control samples ensured that the machines used in the testing processes were working properly. She further explained that whenever a DNA profile is generated, including a known profile, it is analyzed independently by a second analyst, who also reviews the paperwork associated with that analysis to determine if the initial analyst generated the profile properly. Degnan's analysis of both the evidentiary and known profiles was independently reviewed by Dahong Sun, another DNA analyst at the laboratory, who cosigned Degnan's report. The court admitted Degnan's report[8] containing her findings but redacted it to eliminate references to the known samples of the other defendants, Anthony Adams and Daquane Adams.

         On appeal, the defendant claims that he was deprived of his right to confrontation under the sixth amendment to the federal constitution when the court permitted Degnan to testify about the results of her comparison of the DNA profiles, without requiring an analyst from the known processing group to testify. The state argues that the defendant's confrontation claim was not preserved because it was not raised at trial and was not subsumed within the defendant's evidentiary objections regarding lack of competence and foundation.[9] The state further claims that had the defendant properly presented his claim as one of confrontation that was based on testimonial hearsay, as opposed to a challenge to Degnan's competence to render an opinion regarding the known profile, the state may have chosen to call the known processing group analyst, assuming he or she was available to testify.[10] The state argues that raising the confrontation issue for the first time on appeal amounts to an ambush on the state and the trial court. Nonetheless, as the state concedes, our Supreme Court has reviewed a confrontation claim under the bypass rule of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), even when there was a claim of waiver. State v. Smith, 289 Conn. 598, 619, 960 A.2d 993 (2008); see also State v. Holley, 327 Conn. 576, 590, 175 A.3d 514 (2018). We will, therefore, review this unpreserved claim pursuant to Golding, as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).

         ‘‘[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.'' (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. 239-40. The defendant claims that the court violated his right to confrontation by allowing Degnan to testify about the results of the comparison she made, without anyone from the known processing group being called to testify. Because Degnan, the analyst who conducted the critical analysis and made the resulting findings, testified and was subject to cross-examination, we conclude that there was no confrontation clause violation, and thus this claim fails under the third prong of Golding. See id., 240.

         The sixth amendment to the United States constitution provides in relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .'' The sixth amendment right of confrontation extends to the states through the due process clause of the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

         ‘‘In Crawford v. Washington, [541 U.S. 36');">541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)], the [United States] Supreme Court substantially revised its approach to confrontation clause claims. Under Crawford, testimonial hearsay is admissible against a criminal defendant at trial only if the defendant had a prior opportunity [to cross-examine the witness who is otherwise] unavailable to testify at trial. Id., 68. In adopting this categorical approach, the court overturned existing precedent that had applied an open-ended balancing [test] . . . conditioning the admissibility of out-of-court statements on a court's determination of whether the proffered statements bore adequate indicia of reliability. . . . Although Crawford's revision of the court's confrontation clause jurisprudence is significant, its rules govern the admissibility only of certain classes of statements, namely, testimonial hearsay.'' (Citations omitted; internal quotation marks omitted.) State v. Buckland, 313 Conn. 205, 212-13, 96 A.3d 1163 (2014), cert. denied, U.S., 135 S.Ct. 992, 190 L.Ed.2d 837 (2015). Even where the subject statement is testimonial hearsay, ‘‘[t]he [confrontation] [c]lause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.'' Crawford v. Washington, supra, 60 n.9.

         In the context of laboratory tests, ‘‘the analysts who write reports that the prosecution introduces must be made available for confrontation . . . .'' Bullcoming v. New Mexico, 564 U.S. 647, 661, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). Nevertheless, ‘‘it is not the case . . . that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case.'' Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Although ‘‘[i]t is the obligation of the prosecution to establish the chain of custody . . . this does not mean that everyone who laid hands on the evidence must be called. . . . [G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.'' (Citations omitted; internal quotation marks omitted.) Id. As the United States Court of Appeals for the Second Circuit recently noted, ‘‘the Supreme Court has never held that the [c]onfrontation [c]lause requires an opportunity to cross-examine each lab analyst involved in the process of generating a DNA profile and comparing it with another . . . .'' Washington v. Griffin, 876 F.3d 395, 407 (2d Cir. 2017); see also State v. Buckland, supra, 313 Conn. 214 (‘‘neither Melendez-Diaz nor Bullcoming require every witness in the chain of custody to testify''). Generally, the ‘‘rules of evidence . . . permit experts to express opinions based on facts about which they lack personal knowledge . . . .'' Williams v. Illinois, 567 U.S. 50, 69, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).[11]

         In the present case, Degnan, the analyst who conducted the critical analysis and made the findings that connected the defendant's DNA to the DNA found on the bandana, testified and was subject to cross-examination. Degnan explained the procedures she followed in processing the DNA found on the bandana and comparing it to the known profiles. It was Degnan, and not the analyst from the group, who conducted the forensic analysis of the known profiles and the evidentiary profile and determined that the defendant's DNA profile matched the DNA found on the bandana. See People v. Corey, 52 Misc.3d 987, 992, 36 N.Y.S.3d 354 (2016) (‘‘Nothing . . . supports the conclusion that the analysts involved in the preliminary testing stages, specifically, the extraction, quantification or amplification stages, are necessary witnesses . . . . Rather, it is the generated numerical identifiers and the calling of the alleles at the final stage of DNA typing that effectively accuses defendant of his role in the crime charged . . . .'' [Citations omitted; internal quotation marks omitted.]). Although Degnan did not run the machines that extracted the DNA profiles from the known samples, she was fully aware of, and testified to, the standard operating procedures of the laboratory, including the manner in which the known samples are processed and verified. The defendant's known profile was not inherently inculpatory. It was the forensic analysis conducted by Degnan that made it so. Degnan was extensively cross-examined about her analysis and findings. She was specifically questioned about the processing of the known samples and her lack of participation in the generation of the known profiles. She was the primary analyst who made the findings and prepared the report, and was available to defend and explain her conclusion that the two DNA profiles matched.

         Nevertheless, in support of his contention that his right to confrontation was violated, the defendant cites Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305. This case, however, can be readily distinguished. In Melendez-Diaz, the Supreme Court addressed the issue of whether a petitioner's right of confrontation was violated when the trial court admitted certificates of analysis reporting the results of a laboratory test, without the analysts who had prepared and signed the certificates appearing to testify. Id., 308-309. The court held that the notarized certificates were ‘‘a solemn declaration or affirmation made for the purpose of establishing or proving some fact''; (internal quotation marks omitted) id., 310; and thus, ‘‘[a]bsent a showing that the analysts were unavailable to testify at trial and that the petitioner had a prior opportunity to cross-examine them, '' the petitioner's right to confrontation had been violated. (Internal quotation marks omitted.) Id., 311. In the present case, unlike in Melendez-Diaz, the analyst who conducted the analysis to establish ‘‘some fact'' and who prepared and signed the report, testified at trial and was therefore available for cross-examination. See Washington v. Griffin, supra, 876 F.3d 401, 405 (similarly distinguishing Melendez-Diaz in case where analyst who testified had conducted DNA extraction of evidentiary samples but not DNA extraction of defendant's buccal swab, which she utilized in her analysis and conclusions).

         Even if we assume, arguendo, that the processing of the defendant's known profile was considered a critical stage of the analysis or chain of custody, the admission of Degnan's testimony referencing it did not implicate the confrontation clause because Degnan was available and testified extensively on cross-examination. This is particularly important where, as here, the laboratory testing functions are allocated among multiple employees. Although not determinative of the outcome of this case, Williams v. Illinois, supra, 567 U.S. 50, informs our opinion. See State v. Lebrick, 179 Conn.App. 221, 244, A.3d (‘‘[g]iven that no readily applicable rationale for the court's holding in Williams obtained the approval of a majority of the justices, its precedential value seems, at best, to be confined to the distinct factual scenario at issue in that case''), cert. granted on other grounds, 328 Conn. 912, A.3d (2018). ‘‘When lab technicians are asked to work on the production of a DNA profile, they often have no idea what the consequences of their work will be. In some cases, a DNA profile may provide powerful incriminating evidence against a person who is identified either before or after the profile is completed. But in others, the primary effect of the profile is to exonerate a suspect who has been charged or is under investigation. The technicians who prepare a DNA profile generally have no way of knowing whether it will turn out to be incriminating or exonerating-or both.'' Williams v. Illinois, supra, 85. Here, only one of the three known profiles matched the crime scene evidence; the known profiles of Anthony Adams and Daquane Adams were eliminated. ‘‘When the work of a lab is divided up in such a way, it is likely that the sole purpose of each technician is simply to perform his or her task in accordance with accepted procedures.'' Id.

         Courts have consistently held that experts may rely on other experts' findings in reaching their own independent conclusions. See State v. Hutchison, 482 S.W.3d 893, 914 (Tenn. 2016) (applying Williams to admission of autopsy report prepared by nontestifying medical examiner); see also Washington v. Griffin, supra, 876 F.3d 395 (testifying analyst who conducted comparisons of DNA profiles may rely on extractions conducted by other analysts without violating confrontation clause). ‘‘When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the [c]onfrontation [c]lause.'' Williams v. Illinois, supra, 567 U.S. 58. That is precisely what occurred in this case when Degnan relied on her personal knowledge of the procedures performed by the analysts in the group in comparing the known profiles to the evidentiary profile and reaching her own conclusions. As she noted, all DNA profiles generated by each analyst are independently reviewed by a second analyst. ‘‘[T]he knowledge that defects in a DNA profile may often be detected from the profile itself provides a further safeguard.'' Id., 85. We conclude, therefore, that the defendant's right to confrontation was not violated because Degnan, the primary analyst who performed and supervised the generation and analysis of the DNA profiles and resulting findings, testified and was available for cross-examination. Accordingly, the defendant's claim fails under the third prong of Golding.

         II

         The defendant next claims that the court erred by declining either to strike Morrison's in-court identification of the defendant or to grant the defendant's motion for a mistrial. The defendant primarily argues that Morrison's identification of him was based on an unnecessarily suggestive procedure and, thus, by declining to strike Morrison's testimony or to declare a mistrial, the court violated his due process right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution.[12] Additionally, the defendant argues that the court erred by declining to strike Morrison's testimony or order a mistrial as a sanction pursuant to Practice Book § 40-5, for the state's failure to disclose that Morrison had previously identified the defendant in a photograph. We disagree.

         We employ a plenary standard of review when analyzing whether a defendant was deprived of his right to due process. State v. Dickson, 322 Conn. 410, 423, 141 A.3d 810 (2016), cert. denied, U.S., 137 S.Ct. 2263, 198 L.Ed.2d 713 (2017). We review the court's decision to refuse to impose sanctions for abuse of discretion. State v. Respass, 256 Conn. 164, 184, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S.Ct. 478, 151 L.Ed.2d 392 (2001).

         The following additional facts are relevant. Morrison testified that Anthony Adams informed her that the victim was taking too long to arrive at the parking lot, so he was leaving and ‘‘Day-Day and GZ'' would instead purchase the marijuana. Morrison knew that Day-Day was Daquane Adams, although she did not know his last name, and that GZ was Daquane Adams' friend, whom she knew only by his nickname. She testified that, at the time of the incident, she had known Daquane Adams for a year or two, and had known the defendant for ‘‘a couple of ...


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