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State v. Turner

Court of Appeals of Connecticut

May 1, 2018

STATE OF CONNECTICUT
v.
TYQUAN TURNER

          Argued December 5, 2017

         Procedural History

         Substitute information charging the defendant with the crimes of murder, felony murder, robbery in the first degree and conspiracy to commit robbery in the first degree, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Kwak, J.; thereafter, the court denied the defendant's motion for a judgment of acquittal; verdict and judgment of guilty of felony murder, robbery in the first degree and conspiracy to commit robbery in the first degree, from which the defendant appealed. Affirmed.

          Ann M. Parrent, assistant public defender, for the appellant (defendant).

          Harry Weller, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Bright and Eveleigh, Js.

          OPINION

          EVELEIGH, J.

         The defendant, Tyquan Turner, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2). On appeal, the defendant claims: (1) there was insufficient evidence presented at trial to convict him of conspiracy to commit robbery in the first degree; (2) the trial court improperly admitted documentary and testimonial evidence regarding cell phone coverage maps in violation of his federal due process right to a fair trial; (3) prosecutorial improprieties during the state's closing and rebuttal arguments deprived him of his right to a fair trial; and (4) the trial court improperly instructed the jury with respect to robbery in the first degree.[1] We disagree and, accordingly, affirm the judgment of the trial court.[2]

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the afternoon of July 13, 2013, the victim, Miguel Rodriguez, was standing on the sidewalk in front of 10-12 Flatbush Avenue in Hartford. Charlene Lara, a resident of the neighboring 18 Flatbush Avenue, was smoking a cigarette on her second floor porch. At approximately 3:54 p.m., Lara observed two people approach the victim from an open parking lot alongside 10-12 Flatbush Avenue, heard two series of gunshots, and called 911. Shortly thereafter, police and emergency response personnel found the victim, who was being tended to by residents of 10 Flatbush Avenue. The victim later was pronounced dead at Hartford Hospital.

         Approximately seven or eight friends and family members of the victim were present when the shooting occurred. Those who were interviewed at the scene, although generally unwilling to provide any information about the incident or a suspect, indicated that the victim was missing a gold chain and medallion.[3] Police officers, however, located two eyewitnesses who were willing to give statements regarding the incident, Lara and Jose DeJesus.[4] A firearm or spent shell casings were never recovered.

         On July 14, 2013, Dennis DeMatteo, a detective with the Hartford Police Department, received a phone call from an ‘‘[associate] of the family'' who was ‘‘[o]ne of the friends and family'' of the victim. The caller stated that the defendant was responsible for the victim's death and that the victim's family members and associates were planning retaliation. The caller also provided a photograph of the defendant, which DeMatteo circulated within his department. On July 16, 2013, Audley McLean, an owner of K & M Jewelry Corporation (K & M) contacted the Hartford Police Department. McLean stated that he had purchased a gold chain and medallion from Lorenzo Christian between 4 p.m. and 6 p.m. on July 13, 2013. McLean provided a photograph of the jewelry, a copy of the check, and Christian's state identification card to the police. Acting on that information, DeMatteo traced the check to a Webster Bank branch, located on Park Street in Hartford, and an account owned by Alexandra Colon, the mother of the defendant's daughter.

         On August 6, 2013, Detective George Watson, while driving an unmarked police vehicle, stopped at an intersection in the north end of Hartford. Watson observed the defendant and Christian, whom he recognized from flyers circulating within his department, pull alongside his vehicle. The defendant then ‘‘took off.'' Watson, along with other Hartford police officers, pursued the vehicle until the defendant drove into the back of a building complex that had no exit. The defendant and Christian abandoned the vehicle, jumped a nearby fence, and continued on foot. The defendant was not apprehended but dropped his cell phone as he was exiting the vehicle. The cell phone was recovered by Hartford police. Christian was apprehended by Hartford police and admitted that he had been in possession of the chain and medallion.

         On August 17, 2013, DeMatteo interviewed Colon at the Hartford Police Department. Colon admitted to cashing a check for the defendant and Christian. Colon also was shown the cell phone recovered on August 6, 2013, and, on the basis of a crack in the phone's screen, she identified it as the defendant's and provided DeMatteo with the defendant's cell phone number. With that number, DeMatteo confirmed that Sprint Corporation (Sprint) was the defendant's cell phone carrier and, thereafter, a subpoena was issued, ordering Sprint to produce the defendant's cell phone records from July 13, 2013, the day the homicide occurred, through August 6, 2013, the day the phone was recovered. Sprint's response to the initial subpoena was incomplete and did not include any records for July 13, 2013. The subscription information, however, indicated that the cell phone number was changed on July 14, 2013, the day after the crime, at the request of a person by the name of ‘‘Patrick.'' In response to a subsequent subpoena, Sprint produced the cell phone records, associated with that prior phone number, for July 13, 2013.

         DeMatteo sent the cell phone records and locations of investigative interest to Andrew Weaver, asergeant in the Hartford Police Department's special investigations division, who performed a call detail mapping analysis.[5]Weaver input that data into a computer program called Oculus GeoTime, and produced a time lapse video visually representing the movement of the defendant's cell phone between approximately 3:04 p.m. and 6:48 p.m. on the day of the crime.[6] Weaver also took screenshots of the video at different times between approximately 3:24 p.m. and 5:08 p.m. on the day of the crime.

         On August 25, 2013, the defendant was approached by Hartford police Officer Carlos Montanez. The defendant identified himself as Aaron Patrick and presented fake identification under the same alias, which listed 7 Cherry Street as his residence. The defendant initially was charged with interfering with police on the basis of his having presented that fake identification. On September 11, 2013, the defendant was arrested in connection with the victim's death and subsequently charged with murder in violation of General Statutes § 53a-54a, felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree.

         A six day jury trial began on May 18, 2015. The state presented the testimony of DeJesus, [7] Lara, [8] and several members of the Hartford Police Department. The state introduced the defendant's cell phone records into evidence during its direct examination of Ray Clark, a custodian of records at Sprint. Clark identified the defendant's account subscription information, July 14, 2013 customer service record, and call detail records. Those three documents were admitted into evidence without objection. Thereafter, the state conducted its direct examination of Weaver and elicited testimony regarding the call detail mapping analysis he performed. The state introduced the time lapse video and snapshots that Weaver produced, which were admitted into evidence without objection. On May 26, 2015, the jury found the defendant guilty of felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree.[9] The trial court thereafter rendered judgment in accordance with the jury's verdict and sentenced the defendant to a total effective term of seventy years of incarceration, thirty of which are a mandatory minimum sentence. This appeal followed.[10] Additional facts and procedural history will be set forth as necessary.

         I

         The defendant claims that there was insufficient evidence presented at trial to convict him of conspiracy to commit robbery in the first degree.[11] Specifically, he argues that there was ‘‘no evidence apart from the alleged robbery from which an agreement to commit that crime could be inferred.'' The defendant filed a motion for a judgment of acquittal at the close of the state's case but failed to renew this motion at the close of all of the evidence. Nevertheless, he seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). We review the defendant's unpreserved sufficiency of the evidence claim as though it had been preserved. See State v. Revels, 313 Conn. 762, 777, 99 A.3d 1130 (2014) (‘‘[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. . . . Accordingly . . . there is no practical significance . . . for engaging in a Golding analysis.'' [Citation omitted; internal quotation marks omitted.]), cert. denied, U.S., 135 S.Ct. 1451, 191 L.Ed.2d 404 (2015). Upon review of the record, we conclude that there was sufficient evidence presented at trial to convict the defendant of conspiracy to commit robbery in the first degree.

         We first set forth the relevant legal principles governing sufficiency of the evidence claims. ‘‘In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

         ‘‘We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

         ‘‘Moreover, 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. . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

         ‘‘Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . 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 [finder of fact's] verdict of guilty.'' (Internal quotation marks omitted.) State v. Bush, 325 Conn. 272, 285-86, 157 A.3d 586 (2017); State v. Steele, 176 Conn.App. 1, 10-12, 169 A.3d 797, cert. denied, 327 Conn. 962, 172 A.3d 1261 (2017).

         The crimes of conspiracy and robbery in the first degree are codified at §§ 53a-48 and 53a-134, respec-tively.[12] To establish the defendant's guilt with respect to conspiracy to commit robbery in the first degree, ‘‘the state must show that there was an agreement between two or more persons to engage in conduct constituting [robbery in the first degree] and that the agreement was followed by an overt act in furtherance of the conspiracy . . . . The state must also show intent on the part of the accused that conduct constituting [robbery in the first degree] be performed. . . . The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . .

         ‘‘Because of the secret nature of conspiracies, a conviction usually is based on circumstantial evidence. . . . Consequently, it is not necessary to establish that the defendant and his [coconspirator] signed papers, shook hands, or uttered the words we have an agreement. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.'' (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Taft, 306 Conn. 749, 756-57, 51 A.3d 988 (2012); see also State v. Taylor, 177 Conn.App. 18, 31-32, 171 A.3d 1061 (2017), cert. denied, 327 Conn. 998, 176 A.3d 555 (2018).

         The jury reasonably could have found the following additional facts. On the afternoon of July 13, 2013, at approximately 3:06 p.m., the defendant left his residence at 7 Cherry Street in Hartford and drove to Lenox Street, where Christian resided. At approximately 3:25 p.m., the defendant and Christian left the area of Lenox Street and drove to 10-12 Flatbush Avenue in Hartford. At approximately 3:54 p.m., the defendant and Christian emerged from the open parking lot alongside 10-12 Flat-bush Avenue and approached the victim. The defendant grasped the chain and medallion around the victim's neck and fatally shot the victim in the abdomen with a chrome revolver. The defendant and Christian drove to K & M, located at 1154 Albany Avenue in Hartford. Christian entered K & M alone, and presented the chain and medallion to McLean. McLean conducted an appraisal and offered to pay Christian $1134. Christian exited K & M and consulted with the defendant about the offer. Christian subsequently reentered K & M and accepted McLean's offer. After leaving K & M, the defendant and Christian attempted to cash McLean's check but were unsuccessful. The defendant called Colon and asked her to cash the check. The defendant and Christian picked up Colon at her house and drove to a Webster Bank branch located on Park Street in Hartford, where Colon deposited the check in her account. The defendant then dropped off Colon and Christian at their respective residences before returning to 7 Cherry Street. The following day, at the defendant's request, Colon withdrew cash in the amount of the check and gave it to the defendant.

         The jury's conclusion that the defendant and Christian agreed to engage in conduct constituting robbery in the first degree is reasonable and logical in light of the evidence before it and the inferences that may be drawn therefrom. See State v. Crosswell, 223 Conn. 243, 255-56, 612 A.2d 1174 (1992) (sufficient evidence to support finding that defendant agreed that gun would be used during robbery when he stood by silently when gun was displayed); State v. Louis, 163 Conn.App. 55, 68, 134 A.3d 648 (sufficient evidence to support finding that defendant agreed to commit robbery when he entered store with coconspirators and did not flee when gun was displayed), cert. denied, 320 Conn. 929, 133 A.3d 461 (2016); State v. Elsey, 81 Conn.App. 738, 747, 841 A.2d 714 (sufficient evidence to support finding that defendant agreed to conspiracy when defendant arrived at crime with coconspirators, stayed at scene while crimes were committed and left scene with coconspirators), cert. denied, 269 Conn. 901, 852 A.2d 733 (2004). Mindful that in determining the sufficiency of the evidence we consider its cumulative effect and construe the evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient evidence presented at trial to convict the defendant of conspiracy to commit robbery in the first degree.

         II

         We next address the defendant's claim that the trial court's qualification of Weaver as an expert witness and admission of cell phone coverage maps deprived him of his due process right to a fair trial. Specifically, the defendant argues that he was convicted on the basis of ‘‘scientific evidence that does not satisfy the reliability safeguards now required by [State v. Edwards, 325 Conn. 97, 156 A.3d 506 (2017)].''[13] The defendant, however, failed to preserve this claim at trial and seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, and, alternatively, the plain error doctrine. We decline to review the merits of the defendant's unpreserved evidentiary claim.

         A

         Pursuant to the Golding doctrine, ‘‘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. In the absence of any one of these conditions, the defendant's claim will fail. . . . The first two steps in the Golding analysis address the reviewability of the claim, while the last two steps involve the merits of the claim. . . . The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances.'' (Citations omitted; internal quotation marks omitted.) State v. Steele, supra, 176 Conn.App. 15 n.8; see also State v. Biggs, 176 Conn.App. 687, 705-706, 171 A.3d 457, cert. denied, 327 Conn. 975, 174 A.3d 193 (2017). Upon review of the record, we conclude that the defendant's claim fails under Golding's second prong because it is evidentiary in nature and not ‘‘of constitutional magnitude alleging the violation of a fundamental right . . . .'' State v. Golding, supra, 213 Conn. 239-40.

         In State v. Edwards, supra, 325 Conn. 97, our Supreme Court was presented with two issues of first impression, specifically, whether: (1) ‘‘a police officer needed to be qualified as an expert witness before he could be allowed to testify regarding cell phone data''; id., 127; and (2) ‘‘the evidence introduced through [the police officer] was of a scientific nature such that a [Porter hearing][14] was required.'' (Footnote added.) Id., 129. The court answered those two questions in the affirmative, concluding that the trial court improperly admitted cell phone data and cell tower coverage maps into evidence without qualifying the police officer as an expert and conducting a Porter hearing to determine whether the officer's testimony was based on a reliable scientific methodology. See id., 133. The court then conducted a harmless error analysis. See id. (‘‘[w]hen an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful'' [emphasis added; internal quotation marks omitted]).

         In the present case, the defendant, nevertheless, argues that this evidentiary claim is of constitutional magnitude because ‘‘it asserts that the improper admission of evidence violated [his] due process right to a fair trial.'' We are not persuaded by the defendant's attempt to ‘‘clothe an ordinary evidentiary issue in constitutional garb to obtain appellate review.'' (Internal quotation marks omitted.) State v. Marrero-Alejandro, 159 Conn.App. 376, 398, 122 A.3d 272 (2015), appeal dismissed, 324 Conn. 780, 154 A.3d 1005 (2017). Accordingly, we decline to review the merits of the defendant's claim because it fails to satisfy Golding's second prong.

         B

         The defendant alternatively argues that reversal of his conviction is warranted because the trial court's qualification of Weaver as an expert witness and admission of cell phone coverage maps constituted plain error.[15] In response, the state argues that reversal of the defendant's conviction under the plain error doctrine is unwarranted because the claim was ‘‘tactically waived.'' We agree with the state. In the present case, because it clearly appears that defense counsel made a strategic decision not to object to the cell phone evidence or Weaver's qualification and then relied on that evidence during his closing argument, there is no manifest injustice that warrants reversal under the plain error doctrine. See State v. Ampero, 144 Conn.App. 706, 715, 72 A.3d 435 (defendant could not demonstrate manifest injustice where defense counsel made strategic decision to not object to evidence and then used evidence to defendant's advantage), cert. denied, 310 Conn. 914, 76 A.3d 631 (2013); see also State v. Joseph, 174 Conn.App. 260, 283-84, 165 A.3d 241 (‘‘[w]hen a party so utilizes allegedly improper evidence, it cannot prevail under the plain error doctrine''), cert. denied, 327 Conn. 912, 170 A.3d 680 (2017).

         As we previously detailed, defense counsel did not object to the admission of the Sprint records or coverage maps into evidence. Moreover, during his cross-examination of Clark, defense counsel elicited testimony that cell site information could not be used to determine the exact location of a cell phone at a specific time, but could be used to establish that the phone was in the ‘‘vicinity'' of a cell site. That testimony prompted the following exchange:

‘‘[Defense Counsel]: And how would you define vicinity?
‘‘[The Witness]: Well, within the range of the cell site.
‘‘[Defense Counsel]: And do you know what the range is?
‘‘[The Witness]: . . . [E]very cell site [is going to] have a different range. The only way to determine more accurate[ly] would be to map every cell site potentially and look at one [cell site] in particular relationship to the others to get an idea. But as a general rule of thumb in an urban environment, up to two miles would be the rule that I would go by if I just had to choose an arbitrary number.''

         Moreover, during the state's direct examination of Weaver, defense counsel did not object to Weaver's qualifications or any testimony concerning his analysis. Of import, Weaver testified that, on the basis of the cell site and sector that a call is recorded on, he could conclude that a cell phone was in a certain coverage area when a call was made or received.[16] Thereafter, defense counsel declined to ...


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