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State v. Armadore

Court of Appeals of Connecticut

November 13, 2018

STATE OF CONNECTICUT
v.
DARIUS ARMADORE

          Argued May 15, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of murder and conspiracy to commit murder, brought to the Superior Court in the judicial district of New London, where the court, Jongbloed, J., granted the defendant's motion to dismiss the charge of conspiracy to commit murder and granted the state's motion to consolidate the case for trial with that of another defendant; thereafter, the matter was tried to the jury before A. Hadden, J.; verdict and judgment of guilty, from which the defendant appealed. Affirmed.

          Emily Graner Sexton, assigned counsel, with whom was Matthew C. Eagen, assigned counsel, for the appellant (defendant).

          Paul J. Narducci, senior assistant state's attorney, with whom were David J. Smith, senior assistant state's attorney, and, on the brief, Michael L. Regan, state's attorney, for the appellee (state).

          Lavine, Sheldon and Harper, Js.

          OPINION

          SHELDON, J.

         The defendant, Darius Armadore, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims (1) that the trial court abused its discretion in granting the state's motion to join his case with the case of his codefendant, Gerjuan Rainer Tyus; (2) that he was deprived of his constitutional right to confrontation when the state's firearms examiner was permitted to testify regarding the findings of another firearms examiner, who was deceased and thus unavailable to testify at trial; (3) that he was deprived of a fair trial when he was identified for the first time in court by Cindalee Torres without a prior nonsuggestive identification; and (4) that the court abused its discretion by admitting certain hearsay statements into evidence.[1] We affirm the judgment of the trial court.

         On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In early December, 2006, Tyus was involved in an ongoing dispute with Todd Thomas regarding a piece of jewelry that Thomas' brother had given to Tyus. Thomas demanded that Tyus give him the jewelry, but Tyus refused to do so unless Thomas paid him $10, 000.

         On December 3, 2006, there was a drive-by shooting near Tyus' residence on Willetts Avenue in New London. In that incident, Thomas, who was a passenger in a white Lexus that was registered to his wife, fired several gunshots at Tyus with a .38 caliber firearm, striking him in the leg and the back. Tyus returned fire at Thomas, firing five gunshots with a nine millimeter firearm. Four .38 caliber cartridge casings and five nine millimeter cartridge casings were recovered from the scene of the shooting on Willetts Avenue. Later that day, while Tyus was at a hospital being treated for his wounds, the defendant, who was a close friend of Tyus, was at the hospital waiting for news of Tyus' condition, and was overheard to say, ‘‘we're gonna get them niggas . . . .''

         At approximately 7 p.m. on December 22, 2006, the defendant and Tyus went to Boston to visit family and pick up three girls in a silver Chevrolet Impala that Tyus had rented on December 15, 2006. When one of the three girls refused to return to Connecticut with them, the defendant and Tyus returned to Connecticut with the other two girls.

         Later that evening, at approximately 11 p.m. on December 22, 2006, Thomas arrived at Ernie's Cafe´ on Bank Street in New London. Shortly after midnight on that evening, while Thomas was outside Ernie's smoking a cigarette, he was shot in the head. A light skinned African-American male was observed fleeing from the place where Thomas fell, running first down Bank Street toward the corner of Golden Street, then up Golden Street to a municipal parking lot, where he entered the passenger's side of a silver car that had been waiting there with its motor running. As soon as the fleeing man entered the waiting vehicle, it sped away. Thomas was transported to Lawrence Memorial Hospital, where he was pronounced dead on arrival.

         Later, at approximately 12:45 a.m., the defendant and Tyus arrived at Bella Notte, a nightclub in Norwich. Tracking information on records produced by their cell service providers established that their three cell phones-Tyus had two cell phones in his possession and the defendant had one-had been brought from Boston to New London at approximately 11:45 p.m. All three phones activated cell towers in New London, in the vicinity of Ernie's, minutes before a 911 call was received reporting the shooting outside of Ernie's. Thereafter, between 12:30 and 12:42 a.m., the three cell phones were taken from New London to Norwich, where they activated a cell tower in close proximity to Bella Notte.[2] A few hours later, at approximately 4 a.m., Tyus dropped the defendant off at the apartment that he shared with his then girlfriend, Ritchae Ebrahimi. After arriving at the apartment, the defendant told Ebrahimi that he had shot someone that night.

         One nine millimeter cartridge casing was recovered from the scene of Thomas' December 23, 2006 shooting outside of Ernie's. A comparison of that cartridge casing to the five nine millimeter cartridge casings recovered from the scene of the defendant's December 3, 2006 shooting on Willetts Avenue revealed that all six had been fired from the same firearm.

         On November 20, 2012, the defendant and Tyus were both arrested in connection with the shooting death of Thomas on charges of murder in violation of § 53a-54a, and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. The conspiracy charges against both defendants were later dismissed on the ground that they were barred by the statute of limitations. The state thereafter filed long form informations charging the defendant and Tyus with murder, both as a principal and as an accessory, in violation of General Statutes §§ 53a-8 and 53a-54a (a). The cases were subsequently joined for trial, then tried together before a single jury, which returned guilty verdicts as to both defendants without specifying whether such verdicts were based on principal or accessorial liability. The court sentenced the defendant to a term of sixty years of incarceration. This appeal followed.[3]

         I

         The defendant first claims that the court abused its discretion in granting the state's motion to join his case with Tyus' case for trial.[4] We disagree.

         On April 7, 2015, the state filed a motion, pursuant to Practice Book § 41-19, for joinder of the defendant's and Tyus' cases for trial. The state argued that joinder of the two cases would promote judicial economy because, as the court ruled, ‘‘virtually all of the witnesses [it] would call in [the defendant]'s trial would be called in the trial of [Tyus], '' and the physical and scientific evidence that it would seek to introduce in both cases would be identical. The state further argued that the respective defenses of the defendant and Tyus were not antagonistic, and thus that neither would suffer substantial injustice if their cases were tried together.

         The defendant objected to the state's motion for joinder on the ground that the defenses of the defendant and Tyus were antagonistic because ‘‘there are several statements made by each defendant, each of which in itself could prove harmful to the other defendant at a trial'' and that he would ‘‘try to throw Mr. Tyus under the rhetorical bus as often as possible . . . .''

         On October 6, 2015, the court orally granted the motion, explaining its ruling as follows: ‘‘The court finds that joinder of the cases will clearly advance judicial economy in this case. Virtually all of the witnesses called in one trial would be called in the trial of the other. The physical and the scientific evidence would also be virtually identical. Moreover, joinder would not substantially prejudice the rights of the defendants. Based on the court's review of the statements of the defendants as set forth by the state in its memorandum, it appears that the defenses are not irreconcilable or antagonistic. Both have admitted being with the other on the night in question, and the statements of each do not implicate the other.'' The court thus found that a joint trial would not be unfairly prejudicial, and so it granted the state's motion for joinder.

         The defendant claims that the joinder of his case with Tyus' case was substantially prejudicial to him because the jury heard evidence of ‘‘the long-established feud and previous incidents of gun violence between Tyus and Thomas, '' which he claimed ‘‘was inadmissible as it pertained to [him] because there was no evidence that the defendant was at all inculpated in either the feud or previous shootings.'' Because the defendant did not assert these arguments at trial, [5] his claim is not preserved. He nevertheless argues that his claim should be reviewed for plain error.[6]

         ‘‘It is well established that the plain error doctrine . . . is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved [and nonconstitutional in nature], are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that . . . requires reversal of the trial court's judgment . . . for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is ...


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