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 ...