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State v. Rogers

Court of Appeals of Connecticut

July 24, 2018

STATE OF CONNECTICUT
v.
RODERICK ROGERS

          Argued January 29, 2018

         Procedural History

         Substitute information charging the defendant with four counts of the crime of assault in the first degree, and with the crimes of murder and conspiracy to commit murder, brought to the Superior Court in the judicial district of Fairfield, where the court, Kavanewsky, J., granted the state's motion to consolidate the case for trial with that of another defendant; thereafter, the matter was tried to the jury; subsequently, the court granted the state's motion to preclude certain evidence; verdict and judgment of guilty, from which the defendant appealed. Affirmed.

          Megan L. Wade, assigned counsel, with whom were James P. Sexton, assigned counsel, and, on the brief, Marina L. Green, assigned counsel, Emily Graner Sexton, assigned counsel, and Daniel J. Foster, assigned counsel, for the appellant (defendant).

          Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, C. Robert Satti, Jr., supervisory assistant state's attorney, and Pamela J. Esposito, senior assistant state's attorney, for the appellee (state).

          Lavine, Alvord and Beach, Js.

          OPINION

          LAVINE, J.

         The defendant, Roderick Rogers, appeals from the judgment of conviction, rendered following a consolidated jury trial, [1] of one count of murder in violation of General Statutes § 53a-54a (a), one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), and four counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, he claims that the trial court improperly (1) precluded the introduction of evidence that one of the firearms used in the shooting of the victims was eventually found in the possession of a third party, (2) excluded evidence of a text message conversation he claims was relevant to third-party culpability in violation of his right to present a defense pursuant to the sixth and fourteenth amendments to the federal constitution, and (3) admitted into evidence maps depicting the location of cell phones, [2] and related testimony, without first conducting a Porter[3] hearing. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts that provide the context for this appeal. At approximately 2:30 p.m. on September 10, 2013, a group of individuals-LaChristopher Pettway, Aijholon Tisdale, Jauwan Edwards, Leroy Shaw, and Tamar Hamilton- congregated outside the Trumbull Gardens housing project, located in the north end of Bridgeport. At this same time, two men approached the group, and one of them said, ‘‘y'all just came through the Ave shooting Braz, you all f'd up.'' The two men then pulled out nine millimeter handguns and shot at the group. One bullet struck Pettway in the back, piercing his lung; Pettway later died from his gunshot wound. Tisdale, Edwards, Shaw, and Hamilton were also struck by bullets; each of them survived the assault. After the shooting, the two men ran away toward a nearby street. During the ensuing police investigation into the shooting, Hamilton, Shaw, and Tisdale identified the defendant as one of the men who shot at them.

         By way of an amended long form information, the state charged the defendant with one count of murder, one count of conspiracy to commit murder, and four counts of assault in the first degree. A jury found the defendant guilty of all counts. The court accepted the jury's verdict, rendered judgment, and sentenced the defendant to a total effective sentence of forty-five years imprisonment.[4] This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         We first address the defendant's claim that the court improperly precluded him from introducing evidence that one of the firearms used in the shooting of the victims was eventually found in the possession of a third party. Because we conclude that the defendant failed to preserve this evidentiary claim for appeal, we decline to address it.

         The following procedural history is relevant. On the basis of the police investigation, the state also charged Raashon Jackson, a codefendant, with the same crimes as the defendant. The court consolidated their cases for trial. During the course of the consolidated jury trial, on October 22, 2015, the state filed a motion in limine seeking to preclude Jackson from introducing evidence that one of the two firearms used in the September 10, 2013 shooting was found in the possession of a third party.[5] The state argued that such evidence was not relevant as third-party culpability evidence because it failed to demonstrate a ‘‘direct connection'' between the third party and the subject shooting.[6]

         The court heard argument regarding the state's motion in limine, at which time Todd A. Bussert, counsel for Jackson, made two interrelated arguments regarding the proffered evidence. First, the firearm was relevant simply because it was one of the firearms used in the September 10, 2013 shooting, and second, ‘‘it is significant that it wasn't found in Mr. Jackson's possession or [in] any way tied to him.'' (Emphasis added.) Following argument, the court granted the state's motion in limine and precluded the introduction of such evidence. The defendant and his counsel, James J. Past-ore, remained silent throughout oral argument. When the court inquired whether ‘‘either defendant intend[s] to put on any other evidence [regarding the firearm found in the third party's possession]''; (emphasis added); Bussert and Pastore both indicated that they did not.

         ‘‘[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly.'' (Internal quotation marks omitted.) State v. Miranda, 327 Conn. 451, 464-65, 174 A.3d 770 (2018).

         The defendant concedes that he did not independently object to the state's motion in limine. He also concedes that he did not attempt to introduce the evidence proffered by Jackson. Nonetheless, he argues that he ‘‘was not . . . required to obtain a second ruling on the same issue in order to preserve the record for review.'' We disagree. A defendant who wants to preserve a non constitutional issue for appeal raised by a codefendant in a consolidated trial must either join the claim advanced by his or her codefendant or otherwise separately make the claim. See State v. Gould, 241 Conn. 1, 9 n.3, 695 A.3d 1022 (1997) (defendant did not advance codefendant's claim at trial; ‘‘[w]hen a defendant does not join a codefendant's motion for tactical or other reasons, the defendant cannot later complain of the procedure on appeal''); State v. Walton, 227 Conn. 32, 55 n.20, 630 A.2d 990 (1993) (defendant did not join codefendants' midtrial motions for separate trial, nor did he make his own similar motion; Supreme Court ‘‘presume[d] that his silence in the face of a similar midtrial motion by [a codefendant], specifically joined by [a second codefendant], was for tactical or other reasons he deemed to be valid''); State v. Tok, 107 Conn.App. 241, 245 n.2, 945 A.2d 558 (defendant could not raise unpreserved evidentiary claim on appeal based on codefendant's objection, citing Gould), cert. denied, 287 Conn. 919, 951 A.2d 571 (2008). Accordingly, the defendant did not preserve this issue for appeal and, therefore, we decline to address it.[7]

         II

         The defendant next claims that the trial court improperly precluded him from introducing certain third-party culpability evidence in violation of his right to present a defense pursuant to the sixth and fourteenth amendments to the federal constitution. He argues that the trial court improperly prevented him from cross-examining David Anderson, a witness for the state, about a text message conversation that allegedly appeared on Anderson's cell phone. According to the defendant, ‘‘[e]vidence that . . . Anderson had been seeking ammunition eight days before the shooting would have been relevant to support the defendant's theory that . . . Anderson was one of the shooters . . . .'' In response, the state contends that the defendant did not raise the specific relevance claim he pursues on appeal and, therefore, that the evidentiary basis for his claim is unreviewable. Alternatively, the state argues that, even if we were to review the defendant's claim in accordance with Golding, [8] it fails to satisfy Golding's second, third, and fourth prongs. Because we conclude that the defendant's claim hinges on an unpreserved relevancy argument, we agree with the state.

         Anderson, the defendant's cousin, testified at trial on behalf of the state. According to him, on September 10, 2013, he drove the defendant and Jackson in his white 2004 Nissan Maxima to the north end of Bridgeport at approximately 2 p.m. The defendant instructed him to drive to an area near the Trumbull Gardens housing project.[9] While Anderson was driving on a street near the Trumbull Gardens housing project, the defendant said that ‘‘he [had] seen someone he knew, '' and that Anderson should park the car and then wait for him and Jackson until they returned. The defendant and Jackson then exited the car and headed toward whomever the defendant recognized. Shortly thereafter, Anderson heard ‘‘firecracker sounds.'' Approximately two minutes after Anderson parked his car, the defendant and Jackson returned and entered Anderson's Nissan Maxima, and the defendant told Anderson, ‘‘[a]ll right, go ahead.'' Anderson heard sirens as he then drove the defendant and Jackson away from the area.

         During cross-examination, Pastore, counsel for the defendant, sought to question Anderson about a text message conversation that allegedly appeared on Anderson's cell phone. Pastore asked Anderson, ‘‘[w]ho is Popa Anderson?'' Anderson did not answer that question, however, as the prosecutor immediately objected and claimed that the inquiry was not relevant. Outside the presence of the jury, Pastore represented to the court: ‘‘There's a text message from Mr. Anderson's phone from a Popa Anderson to another individual by the name of Los Des, and I'm asking and inquiring of who those individuals are.'' The following colloquy then took place:

‘‘The Court: Well, what else-what else would you have though to make that relevant?
‘‘[Pastore]: Well, depending on how the person answers the questions, the relevancy-
‘‘The Court: I mean, what's your proffer? Do you know?
‘‘[Pastore]: The relevancy is, there's a-there's a chat between those individuals regarding-
‘‘The Court: Between?
‘‘[Pastore]: Anderson-this Popa Anderson and this Los Des regarding thirty-two shells or a request for [.38 caliber] shells.
‘‘The Court: Okay.
‘‘[Pastore]: On September 2, eight days before the ...

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