State v. Gray-Brown

          Argued October 10, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of felony murder, robbery in the first degree and carrying a pistol without a permit brought to the Superior Court in the judicial district of Fairfield, where the court, Kahn, J., denied the defendant's motion to suppress certain evidence; thereafter, the matter was tried to the jury; verdict and judgment of guilty, from which the defendant appealed. Reversed in part; judgment directed.

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Laurie N. Feldman, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Colleen P. Zingaro, senior assistant state's attorney, for the appellee (state).

          Alvord, Prescott and Flynn, Js.

          OPINION

          PRESCOTT, J.

         The defendant, Dovante Gray-Brown, 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) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant claims on appeal that (1) the trial court improperly denied his motion to suppress several items of evidence taken from his bedroom because his mother lacked authority to consent to a search of his bedroom, (2) the court abused its discretion by admitting those same items into evidence because they were not relevant and were more prejudicial than probative, (3) there was insufficient evidence to prove, as required for the crime of carrying a pistol without a permit, that the defendant possessed a firearm that had a gun barrel less than twelve inches in length, (4) the court improperly denied the defendant's request for a third-party culpability instruction, and (5) the court improperly refused to question a juror regarding an issue of juror partiality that was raised after conviction. We agree with the defendant that there was insufficient evidence to prove, as required by § 29-35 (a), that the length of the barrel of the firearm used to commit the crime was less than twelve inches. Accordingly, we reverse the judgment of conviction as to that count with direction to render a judgment of acquittal on the charge of carrying a pistol without a permit. We are not persuaded, however, by the remainder of the defendant's claims and, accordingly, affirm the judgment of conviction in all other respects.

         The facts, as could have been reasonably found by the jury, and procedural history, are as follows. The defendant and his friend, Dominick Gonzalez, arranged a drug deal with the victim, Dewayne Gardner, Jr., in order to rob him of drugs and money. Gonzalez knew the victim because the victim regularly supplied him with drugs that he then resold. Gonzalez asked the victim to meet him at 178 Poplar Street in Bridgeport so that he could purchase drugs from him.

         In the early morning of December 16, 2013, the victim, believing he was going to sell narcotics to Gonzalez, drove a rental car to 178 Poplar Street. Prior to the meeting, the victim had exchanged text messages with Gonzalez. Gonzalez texted the victim that he was on his way to make the purchase and later texted that he had arrived at 178 Poplar Street. Gonzalez, however, had sent these text messages from several miles across town. Gonzalez, who was unable to get a ride to the agreed upon location, did not want to inform the victim that the defendant would be engaging in the transaction because the victim trusted Gonzalez more than the defendant.

         In addition to exchanging text messages with the victim, Gonzalez was also in contact with the defendant. Gonzalez exchanged more than one dozen calls with the defendant between 12:30 a.m. and 3 a.m. The defendant was at his home on 1022 Hancock Avenue in Bridgeport during these calls. Hancock Avenue runs parallel to Poplar Street, with direct access to 178 Poplar Street through a vacant lot. The victim was in his car when the defendant arrived, with a firearm, to carry out the robbery. During the robbery, the defendant fired multiple gunshots into the car from the front passenger side, striking the victim.

         Gonzalez later called the defendant to see if he had succeeded in the robbery. The defendant admitted to Gonzalez that he had shot the victim. The defendant also told Gonzalez that, after shooting the victim and fleeing the scene, he returned to take the victim's phone in order to dispose of it.

         The police were called to the scene to respond to a report of a car accident. After being shot, the victim apparently attempted to flee the scene, but his vehicle hit a parked car at 211 Poplar Street. The police found an unspent nine millimeter bullet and two spent shell casings in the street at 178 Poplar Street. In the victim's car, they found bulletholes, bullets, and shell casings showing that a gunman had shot into the car from the passenger side. The victim sat dead in the driver's seat, with multiple gunshot wounds.

         Although the victim habitually carried a cell phone and money with him, no wallet, money, cell phone, or drugs, other than a small amount of marijuana, were found in the car. A pocket of the victim's pants was turned inside out.

         After obtaining the victim's phone records, the police spoke with Gonzalez and seized his phone for evidence. The police arrested Gonzalez on a charge of felony murder on December 21, 2013. Gonzalez initially lied to the police to protect himself and the defendant, but eventually cooperated with police and testified at trial pursuant to a plea deal.

         Gonzalez told police that they could find ammunition that he and the defendant had been trying to sell in the basement of the multifamily house in which the defendant lived on the third floor. After obtaining consent from the owner of the house, the police searched the basement and did, in fact, find ammunition, as well as the sawed off barrel of a gun. A few days later, after obtaining consent from the defendant's mother to search the defendant's bedroom, the police found, inter alia, an electronic scale, rubber gloves, and a Remington ammunition tray for nine millimeter bullets in his room.

         Forensic testing of the bullets and casings found at the crime scene indicated that they were fired from the same firearm. The bullets and casings were manufactured, however, by three different companies and differed in metal, shape and stampings.

         The defendant eventually was charged with felony murder, robbery in the first degree and carrying a pistol without a permit. On November 30, 2016, the jury found the defendant guilty of all charges. On the conviction of felony murder, the court, Kahn, J., sentenced the defendant to forty-five years of incarceration and five years of special parole. Additionally, the court sentenced the defendant to a concurrent ten year term of incarceration on the count of robbery and a concurrent five year term of incarceration for carrying a pistol without a permit. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the trial court improperly denied his motion to suppress evidence collected from his bedroom because the police illegally had searched his room without a search warrant. Specifically, the defendant contends that the trial court improperly concluded that his mother had the authority to consent to the search of his bedroom and that she did so voluntarily. According to the defendant, the warrantless entry by police into his bedroom violated his constitutional rights, and, therefore, the evidence seized from this search should have been suppressed. We disagree.

         In its oral decision on the defendant's motion to suppress, the court found the following additional facts. At approximately 6 a.m. on January 11, 2014, police officers arrived at the defendant's residence to execute an arrest warrant for the defendant charging him with felony murder. Approximately eight detectives and four uniformed officers arrived at the residence.

         The defendant's mother, Claudette Brown, opened the door. The officers advised her that they had a warrant to arrest the defendant on the charge of felony murder. Brown told them that he was not home and gave the officers verbal consent to search the home for him. After searching the apartment and not locating the defendant, many of the law enforcement officers departed in an attempt to find the defendant at his girlfriend's house, where Brown said he might be. The only officers who remained at the defendant's residence were Lieutenant Christopher Lamaine and two police detectives.

         Brown identified the defendant's bedroom to the officers. Lamaine noticed that the door was open and that the inside of the room was visible.^[1] Brown was cooperative and gave permission to the officers to search the bedroom. Brown was calm and did not have difficulty communicating with the officers.Brown was aware that the police were investigating the homicide for which they had obtained an arrest warrant for her son. Although the officers carried weapons at the time of the search, at no point did they unholster their weapons during their initial search for the defendant or during the subsequent search of his bedroom.

         After Brown gave verbal consent to search the defendant's bedroom, Lamaine left the apartment to retrieve a consent form from his vehicle, which Brown subsequently signed.^[2] After reviewing the form with Brown, and observing her reading and signing it, the officers began to search the defendant's bedroom. The detectives seized a number of items from the bedroom, including an ammunition tray, gloves, and an electronic scale.

         We turn next to the well established law and standard of review that governs the defendant's claim. ‘‘A warrantless search is not unreasonable under either the fourth amendment to the constitution of the United States or article first, § 7, of the constitution of Connecticut if a person with authority to do so has freely consented to the search. . . . The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so. . . . The state must affirmatively establish that the consent was voluntary; mere acquiescence to a claim of lawful authority is not enough to meet the state's burden. . . . The question whether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, express or implied, [as well as whether the individual providing consent possessed the requisite authority] is a question of fact to be determined from the totality of all the circumstances. . . . As a question of fact, it is . . . to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence.'' (Internal quotation marks omitted.) State v. Azukas, 278 Conn. 267, 275, 897 A.2d 554 (2006).

         ‘‘On appeal, we apply a familiar standard of review to a trial court's findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . Because a trial court's determination of the validity of a . . . [seizure] implicates a defendant's constitutional rights, however, we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence.'' (Internal quotation marks omitted.) State v. Douros, 90 Conn.App. 548, 553-54, 878 A.2d 399, cert. denied, 276 Conn. 914, 888 A.2d 85 (2005).

         ‘‘In order for third-party consent to be valid, the consenting party must have possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. . . . The authority that justifies the third party consent rests on mutual use of the property by persons who have joint access or control for most purposes, so that any of the inhabitants has the right to permit the inspection in his own right, and the others have assumed the risk that any of the cohabitants might permit the common area to be entered. . . .

         ‘‘We also note that the overwhelming majority of the cases hold that a parent may consent to a police search of a home that is effective against a child, if a son or a daughter, whether or not still a minor, is residing in the home with the parents . . . . To overcome this authority, the child must establish sufficiently exclusive possession of the room to render the parent's consent ineffective. . . . Factors that [our Supreme Court] previously [has] considered when evaluating whether a child has established sufficiently exclusive possession of the room include: whether the child is paying rent; who has ownership of the home; whether the door to the bedroom is generally kept closed; whether there is a lock on the door; whether other members of the family use the room; and whether other members of the family had access to the room for any reason.'' (Citations omitted; internal quotation marks omitted.) State v. Azukas, supra, 278 Conn. 277-78.

         In its oral decision on the motion to suppress, the trial court relied on State v. Douros, supra, 90 Conn.App. 548, to support its conclusion that the defendant's mother had the authority to permit the police to search the defendant's bedroom.^[3] Douros is factually analogous to the present case. In Douros, after the adult defendant fled the scene of a domestic dispute, his mother gave the police permission to search his bedroom. Id., 551-52. This court held that there was evidence to support the trial court's finding that the defendant's mother exercised sufficient control over his bedroom to validly consent to a search of it by the police. Id., 555. In Douros, the defendant's mother owned the houseinwhich the defendant and his mother resided. Id., 555-56. Additionally, she stated that she had access to the room and gave the police permission to search the room. Id., 552. This court concluded that the evidence supported the trial court's factual findings. Id., 556.

         In the present case, the trial court's finding that Brown had actual authority to consent to the search of the defendant's bedroom is not clearly erroneous. She and her husband were the leaseholders of the apartment and the parents of the defendant and, thus, presumptively had actual authority to consent to a search. In order to refute this presumption, the defendant must establish sufficiently exclusive possession of the room to render the parent's consent ineffective.^[4] To establish that he had exclusive control over the room, the defen- dant argued that the door to his room had a lock. His bedroom door, however, was not always locked and was not locked at the time of the search. Brown testified that she regularly entered the defendant's bedroom to clean the floor and that the defendant had never told her that she was not allowed in the room. Although she would knock if he was home, if the defendant was not home and the door was unlocked, she would enter the room. Brown also testified that the defendant ‘‘chipped in'' with bills and rent, which could tend to show that he had exclusive control over the room. Brown did not, however, provide concrete details about these financial contributions, such as whether the defendant paid a fixed amount of rent. In sum, the court's conclusion that Brown had actual authority to consent to the police search was supported by the evidence. Further, the court's conclusion that the defendant did not establish sufficiently exclusive control of his bedroom that would render Brown's consent ineffective was supported by the evidence.

         We next review the court's finding that the consent to search was voluntarily given. The defendant argues that, under the totality of the circumstances, Brown's consent was not valid because she had been coerced to give her consent. Specifically, the defendant argues that Brown's consent was coerced because the search occurred in the early morning and twelve police officers were present at the house.

         The trial court's finding that Brown's consent was voluntary was supportedby the evidence and, therefore, not clearly erroneous. Although twelve officers initially arrived at the home, that number reflected the fact that they had come to arrest someone who they believed to be armed and responsible for a homicide. All of the officers except Lamaine and two police detectives left the house before the consent to the search occurred. Brown was unaware as to whether the officers carried weapons. The officers obtained both verbal and written consent from Brown, and Lamaine reviewed the consent form with her.

         Although the officers arrived at about six o'clock in the morning, the officers did not forcefully enter the home. There is no evidence that the officers roused Brown out of bed in the middle of the night, broke down the doorin the early hours of the morning, pointed their handguns at anyone or used loud or threatening language. See State v.Reynolds, 264 Conn. 1, 45, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). Additionally, there is no evidence that Brown initially refused to consent to the search or that the officers implied that they would obtain a warrant upon her refusal to consent to the search. Cf. State v.Brunetti, 279 Conn. 39, 57, 70, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 900 (2007). Finally, Brown did not herself suggest, during her testimony or otherwise, that her decision to let the officers into her apartment was ...