Argued
October 22, 2018
Procedural
History
Substitute
information charging the defendant with the crimes of attempt
to commit larceny in the second degree, insurance fraud, and
falsely reporting an incident in the second degree, brought
to the Superior Court in the judicial district of New Haven,
geographical area number seven, and tried to the jury before
B. Fischer, J.; verdict and judgment of guilty of
falsely reporting an incident in the second degree, from
which the defendant appealed to this court.
Affirmed.
Jemal
E. Bethea, self-represented, the appellant (defendant).
Lisa
A. Riggione, senior assistant state's attorney, with
whom, on the brief, were Patrick J. Griffin, state's
attorney, and Kelly Davis, deputy assistant state's
attorney, for the appellee (state).
Lavine, Sheldon and Bright, Js.
OPINION
SHELDON, J.
The
self-represented defendant, Jemal E. Bethea, appeals from the
judgment of conviction that was rendered against him, upon
the verdict of a jury, on the charge of falsely reporting an
incident in the second degree in violation of General
Statutes § 53a-180c (a) (1). The defendant was tried
under an amended information dated March 2, 2017, in which
the state alleged, inter alia, [1] that on or about April 8, 2014,
in Wallingford, while knowing the information he reported was
false or baseless, he reported to law enforcement an incident
that did not in fact occur involving the alleged theft of his
motor vehicle, and then, with the intent to injure, defraud
or deceive Omni Insurance Group, Inc. (Omni), presented a
statement of material fact in support of an insurance claim
knowing that the statement contained false or misleading
information. Although the defendant's appellate brief is
not a model of clarity, we construe his claims on appeal to
be (1) that the evidence at trial was insufficient to support
his conviction of falsely reporting an incident, (2) that the
verdicts in his case, finding him guilty of falsely reporting
an incident but not guilty of insurance fraud, were legally
inconsistent, (3) that neither the warrant to search and
seize the cell phone records of the defendant's
girlfriend, who was allegedly driving the defendant's
vehicle at the time it was reportedly stolen, nor the warrant
for the defendant's arrest in this case was supported by
probable cause, (4) that the trial court erred in admitting a
first time in-court identification of his girlfriend by an
eyewitness, Jacqueline Pecora, (5) that the trial court erred
in admitting impermissible hearsay testimony by Pecora that
was more prejudicial than probative, (6) that the trial court
erred in admitting the defendant's out-of-court
statements to the police that were impermissible hearsay, and
(7) that the prosecutor committed a
Brady[2] violation by withholding the exculpatory
testimony of an eyewitness, Allen Murchie. We affirm the
judgment of the trial court.[3]
The
jury was presented with the following evidence upon which to
base its verdict. On April 8, 2014, at approximately 6 p.m.,
Pecora was jogging near the intersection of Hartford Turnpike
and Ridge Road in Ham-den when she witnessed a white Chrysler
300 drive through the intersection and crash into a
‘‘silver blue'' Subaru wagon. The driver
of the Chrysler, a Caucasian female with blonde hair, who was
approximately forty-five to fifty-five years old, pulled over
to the shoulder of the road momentarily before leaving the
scene. As the Chrysler drove away, Pecora was able to get the
number of its license plate. Pecora then ran to get help at a
nearby fire station, where she relayed a description of the
vehicle that had left the scene and its license plate number
to authorities.
Hamden
Police Officer Mark Gery subsequently responded to a dispatch
concerning the automobile accident at the intersection of
Hartford Turnpike and Ridge Road, where he arrived at
approximately 6:10 p.m. Upon his arrival, he observed a
single vehicle, a Subaru, which was heavily damaged on its
passenger side, stopped in the middle of the intersection. He
noted that there appeared to be white paint transfer on the
right side of the vehicle. While at the scene, Gery spoke to
witnesses who reported to him the license plate number of a
second vehicle that had been involved in the accident, but
had left the scene. When he traced the license plate number,
it came back to a pickup truck registered to the state of
Connecticut. Realizing that the license plate number he had
been given for the evading vehicle was not correct, he
attempted to trace permutations of the reported number in a
futile attempt to identify the evading vehicle.
Later
that evening, at approximately 9 p.m., the defendant
contacted the Wallingford Police Department to report that
his vehicle, a white Chrysler 300, had been stolen. He spoke
with Officer Coleman Turner, who immediately went to a
residence on Wharton Brook Drive in Wallingford to take the
defendant's report. There, the defendant told Turner that
when he went outside at approximately 9 p.m. to drive to the
store to purchase lottery tickets, he found that his vehicle
was missing. The officer also spoke with the defendant's
girlfriend, Amy McVey, a Caucasian middle-aged female with
blonde hair who resided at the Wharton Brook residence
outside of which the car was reportedly stolen. The defendant
told the officer that McVey was the last person to use his
car before it was stolen. She reportedly had driven the
vehicle to Walgreens earlier that evening.
The
following day, at approximately 1:37 p.m., Officer Abel
Gonzalez of the Wallingford Police Department was dispatched
to recover a stolen motor vehicle that had been found on
Quigley Road in Wallingford, approximately three miles from
McVey's residence on Wharton Brook Drive. When he arrived
on Quigley Road, Gonzalez discovered the defendant's
white Chrysler 300 parked on the roadside with damage to its
front end. The officer also noted what appeared to be black
paint transfer on the front right corner of the vehicle.
Inside the vehicle, which he found to be unlocked, Gonzalez
found a wallet containing credit cards and identifying
information that matched the name of the registered owner of
the vehicle, defendant Jemal Bethea. He found the keys to the
vehicle on the back seat. The license plate number of the
defendant's vehicle was one digit different from the
number Pecora had reported to authorities as the license
plate number of the car involved in the evading incident on
April 8.
On
April 9, 2014, the defendant returned a phone call from
Officer Gery. He told the officer that on the previous night
he had been sleeping from 6 p.m. to 9 p.m. before he went
outside and discovered that his vehicle was missing. He added
that he might have dropped the keys to the vehicle without
knowing it while he was bringing packages into his
girlfriend's home.
The
following day, April 10, 2014, the defendant filed an
affidavit of vehicle theft with his insurance company, Omni.
In his affidavit, the defendant indicated that the
‘‘exact location of the theft'' was his
residence at 57 Chidsey Drive in North Branford. He then
explained the circumstances of the theft, however, as
follows: ‘‘After coming back from Walgreens [and]
picking up meds, at about 6:10 p.m. we went into my
girlfriend's house with many bags from [the] store. Put
everything away [and] I went upstairs [and] I took a nap.
Waking up at about 9 p.m. I decided to go to the store [and]
play my numbers. When I went outside I noticed the car was
gone. I immediately called 911.''
Later
that same day, a claims representative from Omni took a
recorded statement from the defendant regarding the theft
over the telephone. In that statement, the defendant stated
that the last time that he had driven his vehicle was at
approximately 5:45 p.m. on April 8, when he and his
girlfriend had gone to pick up a prescription. He noted that
he had a receipt for the prescription and that it was time
stamped at 6 p.m. The defendant stated that they came home,
unloaded the vehicle, then went into the house, where McVey
began to do laundry. The defendant continued: ‘‘I
went upstairs . . . about an hour and [a] half or even later
. . . I got up. I don't know what time, but looked at my
phone calls and noticed, you know, what time I was up and
everything. And that's when I decided like at 9:30 to go
out to the store and play my lottery numbers. And when I went
to go look outside, the vehicle was gone . . . .'' He
reiterated that the car was stolen from in front of his
girlfriend's home.
On
April 15, 2014, Officer Turner contacted the defendant with
follow-up questions regarding the reported theft. The
defendant told Turner that on the day his vehicle was stolen,
he went to sleep at approximately 6:15 p.m. and woke up at
8:30 p.m. He said that McVey had taken the vehicle to
Walgreens shortly before his nap to pick up a prescription
and that he had a receipt from that errand, although he did
not provide the receipt to Turner. Several days later, the
defendant returned to the police station to meet with Turner.
During that meeting, the defendant first stated that he alone
was responsible for the vehicle and that he was the only one
who ever drove it. Then he asked the officer ...