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State v. Sinclair

Supreme Court of Connecticut

July 9, 2019

STATE OF CONNECTICUT
v.
CASEY SINCLAIR

          Argued April 3, 2018

         Procedural History

         Substitute information charging the defendant with the crime of possession of narcotics with intent to sell by a person who is not drug-dependent, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Crawford, J.; verdict and judgment of guilty, from which the defendant appealed to the Appellate Court, Lavine and Keller, Js., with Beach, J., concurring in part and dissenting in part, which affirmed the trial court's judgment, and the defendant, on the granting of certification, appealed to this court. Affirmed.

          John L. Cordani, Jr., assigned counsel, with whom, on the brief, was Damian K. Gunning smith, assigned counsel, for the appellant (defendant).

          Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Don E. Therkildsen, Jr., senior assistant state's attorney, for the appellee (state).

          Palmer, McDonald, Robinson, D'Auria, Mullins and Kahn, Js. [*]

          OPINION

          McDONALD, J.

         Police officers discovered bricks of heroin and a large sum of cash in a vehicle registered to a third party in which the defendant, Casey Sinclair, was the passenger. Following a jury trial at which the driver of the vehicle testified against him, the defendant was convicted of one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes (Rev. to 2013) § 21a-278 (b). The Appellate Court thereafter rejected the defendant's claim that he was entitled to a new trial because (1) the admission of hearsay statements used to establish that he was the de facto owner of the vehicle-based on vehicle inspection records-violated his constitutional right to confront a witness against him, and (2) improper statements in the prosecutor's closing argument violated his constitutional right to a fair trial. State v. Sinclair, 173 Conn.App. 1, 7, 24, 162 A.3d 43 (2017). We granted the defendant's petition for certification to appeal to this court. We affirm the Appellate Court's judgment, albeit under different reasoning on the first issue. We conclude that admission of the hearsay statement was not an error of constitutional dimension and that the defendant did not meet his burden of proving that the evidentiary error was harmful.

         I

         At trial, the state proved its case against the defendant largely though the testimony of three witnesses: the defendant's girlfriend, Winsome Lawrence, who was the driver of the vehicle; Lawrence's cousin, Charmaine Henriques; and Sergeant Gary Angon of the Waterbury Police Department. In addition, the state introduced into evidence a surveillance video reflecting the defendant's conduct preceding his arrest.

         Lawrence offered the following account of the events leading to that arrest. The defendant lives in the Bronx, New York, where he operates a used car business under the name of Sinclair Enterprise. On multiple occasions between October, 2012, and February, 2013, the defendant and Lawrence drove to Connecticut for various purposes. On each such occasion, the defendant drove a tan Jeep to Lawrence's house in Mount Vernon, New York, and then directed Lawrence to drive while the defendant sat in the passenger seat.[1]

         On February 5, 2013, the defendant had Lawrence drive the Jeep to Waterbury, purportedly to go to a shopping mall. When they arrived in Waterbury, the defendant instructed Lawrence to exit the highway and eventually directed her to a side street, where he told her to stop the car. Shortly thereafter, when a black vehicle came toward the Jeep, the defendant directed Lawrence to sound the horn. The driver of the black vehicle made a U turn and parked a few cars ahead of the Jeep. To Lawrence's surprise, the defendant then accessed a hidden compartment within the center console of the Jeep and removed two white packages of drugs. He took the packages to the black vehicle, gave them to someone inside, and walked back toward the Jeep with money in hand. Just then a marked police car slowly drove down the street toward the Jeep. When the defendant got into the Jeep, Lawrence saw that he no longer had the money in hand and asked him where it was. The defendant said that he had thrown it into a bush. He then directed Lawrence to drive to a nearby gas station.

         After they arrived at the gas station, the defendant called someone on his cell phone and said, ‘‘Jay, come and pick me up, I'm going for the money, I'm going to pick up the money.'' The defendant then told Lawrence that he needed to get a bag, and he went into the gas station convenience store. After he returned to the Jeep, the same black vehicle involved in the earlier transaction pulled into the gas station. The defendant exited the Jeep and got into the black vehicle. The vehicle departed and then returned soon afterward. When the defendant returned to the Jeep, he had a black bag filled with money, which he placed in the Jeep's hidden compartment. He then directed Lawrence to drive to the mall in Waterbury.

         Sergeant Angon offered the following account of the circumstances that followed. Waterbury police organized surveillance of the area near the Brass Mill Mall on the basis of an anonymous tip that the department received earlier in the day regarding drug activity that allegedly was going to occur that evening. At approximately 8 p.m., Angon saw a tan Jeep coming off the exit ramp of Interstate 84 near the mall, which fit the description of the vehicle that the department had been given. He and his partner conducted a motor vehicle stop. Upon approaching the Jeep, Angon observed that the defendant appeared unusually nervous. When Angon asked the defendant who owned the Jeep, the defendant replied that it was his ‘‘friend's.''

         A police detective from the department arrived with a narcotics detection canine and conducted a detection sweep of the Jeep. The dog alerted to the driver's side door and then to the center console. Angon and another officer then inspected the center console and discovered the hidden compartment beneath it. Therein they found a black bag containing $12, 248 and ten bricks of what was later established to be heroin; each brick comprised of approximately 1000 prepackaged bags of heroin. The heroin had an estimated street value of between $45, 000 and $60, 000. The cash recovered from the compartment was consistent with the price of two bricks of heroin. The police officers placed the defendant and Lawrence under arrest.[2]

         Henriques, Lawrence's cousin, testified that the defendant provided money to help pay Lawrence's bond after the defendant and Lawrence were arrested. She further testified that when she met with the defendant to ask for his help, he told her that he ‘‘was trying a thing and [got] fucked.''

         In addition to this testimony, the jury viewed a surveillance video from the gas station for the period at issue. In the video, the defendant enters the convenience store and returns to the Jeep, carrying a beverage; no bag is in view. A black vehicle then arrives, and the defendant immediately gets into the rear right passenger seat of that vehicle. The vehicle leaves and then returns approximately ten minutes later. The defendant gets back into the Jeep, and the Jeep departs. The driver of the black vehicle exits that vehicle and enters the convenience store. Angon identified that person, Terence Saunders, as a heroin dealer in Waterbury. Angon also testified that most of the heroin sold in Waterbury comes from the Bronx.

         In addition to this evidence regarding the incident in question, the state attempted to demonstrate that the defendant was the de facto owner of the Jeep. Angon testified that he had run a law enforcement query, which revealed that the Jeep was registered to a third party, Victor A. Manana, at an address in the Bronx.[3] Angon testified that, in his experience, drug dealers commonly register their vehicles in someone else's name and have someone else drive, so that if they come in contact with the police, they are not directly linked to the vehicle. Over the defendant's objections, Angon then was permitted to testify that the Jeep had been inspected at Manny's Auto. He testified that a Google search revealed an address for Manny's Auto and a photograph of that location, which showed Manny's Auto to be located adjacent to Sinclair Enterprise, the defendant's used car business. Angon explained that certain inspection information had been elicited by someone in his department from the New York State Police Department.

         The defendant testified on his own behalf. According to the defendant, the tan Jeep belonged to Lawrence, and she was the ‘‘friend'' to whom he was referring when responding to Angon's question of who owned the Jeep. He claimed that he had accompanied Lawrence to Connecticut on only one other occasion prior to this incident and was unaware that there were drugs in the Jeep. He admitted that he had asked Lawrence to stop at the gas station but claimed that it was for the purpose of meeting someone named Paul, who was interested in selling a vehicle to the defendant. According to the defendant, Paul was a passenger in the black vehicle that came to the gas station. The defendant joined Paul in the black vehicle, along with two individuals not known to the defendant, and drove to look at the vehicle Paul wished to sell. When they could not agree on a price, they returned to the gas station. Lawrence then drove the Jeep toward the mall.

         The defendant's inculpation of Lawrence was lent marginal support by DNA testing performed by the state forensic laboratory on the packaging of the heroin and a strap used as a component of the hidden compartment in the Jeep. The defendant was excluded as a contributor to any of the DNA samples they were able to recover. Lawrence was excluded as a contributor to all but one sample, which had insufficient material to rule her out as a contributor.

         The jury found the defendant guilty of the charge of possession of narcotics with intent to sell by a person who is not drug-dependent. The court subsequently sentenced him to an eight year term of imprisonment.

         The defendant appealed from the trial court's judgment to the Appellate Court, claiming that (1) the admission of Angon's hearsay testimony concerning the Jeep's inspection site violated the defendant's rights under the confrontation clause of the sixth amendment to the United States constitution, and (2) numerous improprieties during the prosecutor's closing argument violated the defendant's due process right to a fair trial.[4]A divided Appellate Court affirmed the judgment of conviction. State v. Sinclair, supra, 173 Conn.App. 28. The majority held that, even if it were to assume that the admission of the inspection testimony was a confrontation clause violation, any such error would be harmless beyond a reasonable doubt. Id., 16. The majority further held that, although a few of the prosecutor's comments during closing argument were improper, those improprieties did not deprive the defendant of a fair trial. Id., 24. Judge Beach dissented in part, concluding that the admission of the inspection testimony was in fact a violation of the confrontation clause and that this error was not harmless beyond a reasonable doubt.[5]Id., 28-32.

         This court granted the defendant's petition for certification to appeal, initially limited to the issues of whether the Appellate Court correctly concluded that any ‘‘presumed violation'' of the defendant's confrontation clause rights was harmless beyond a reasonable doubt and that acts of prosecutorial impropriety did not deprive the defendant of a fair trial. State v. Sinclair, 326 Conn. 904, 3 A.3d 1205');">163 A.3d 1205 (2017). In his brief to this court, the defendant addressed the threshold issue that the Appellate Court majority assumed but did not decide, asserting that the improperly admitted evidence amounted to constitutional, not merely evidentiary, error. In its responsive brief, the state asserted that this issue is outside the scope of the certified question and declined to address it. At oral argument, the state suggested that if we were to disagree with the Appellate Court's assessment of harm, that court could address the substantive issue on remand.

         This court subsequently issued an order directing the parties to file supplemental briefs addressing the following issues: (1) ‘‘Did the evidence establishing that the Jeep had been inspected at a repair shop located adjacent to the defendant's business constitute testimonial hearsay for purposes of Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)? See United States v. Mendez, 514 F.3d 1035, 1045 (10th Cir. 2008) (discussing public records under Crawford).'' And (2) ‘‘[i]f not, can the defendant meet his burden of proving that admission of this evidence was harmful error?''

         II

         We begin with the defendant's challenge to the admission of Angon's testimony regarding the Jeep's inspection. The defendant claims that this evidence constituted testimonial hearsay admitted in violation of his constitutional rights. The defendant further contends that the improper admission of this evidence was harmful, irrespective of whether it is reviewed under the standard of harm for constitutional error or evidentiary error. The state concedes that the inspection testimony was hearsay but contends that it is nontestimonial. The state further contends that its erroneous admission was not harmful, no matter what standard is applied.

         Whether the admission of the contested testimony was constitutional error or merely evidentiary error will dictate which party bears the burden of proof as to harm and the extent of that burden. ‘‘[I]f an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.'' (Internal quotation marks omitted.) State v. Osimanti, 299 Conn. 1, 16, 6 A.3d 790 (2010).

         On the basis of the record before this court, we are compelled to conclude that the statements regarding the inspection were nontestimonial. We further conclude that the improper admission of the hearsay evidence was not harmful.

         A

         The following testimony regarding the Jeep was elicited from Angon on direct examination:

‘‘[The Prosecutor]: And showing you what's been marked State's Exhibit 4-I'll show you on-up on the screen-let me just zoom in there for you. Could you tell the jury what you're seeing here?
‘‘[Angon]: That is a printout from the law enforcement query of the vehicle registration number, New York F X L 3 7 5 4, which was the license plate on the Jeep Liberty. And it shows that it was registered to a Victor A. Manana, 1178 Washington Avenue, 5C, Bronx, New York.
‘‘[The Prosecutor]: During your investigation, did you . . . determine if there were any inspections on that vehicle?
‘‘[Angon]: Yes, there was a-for a vehicle to be registered in New York, New York state requires a vehicle inspection. I'm not sure exactly what the period between inspections is, but they have periodic inspections where they have to meet certain standards in order for the vehicle to be registered and remain registered in the state.
‘‘[The Prosecutor]: And where was that done?
[Objections raised and overruled.]
‘‘[The Prosecutor]: Where was the inspection done?
‘‘[Angon]: The inspection was done at Manny Auto at 3 5 3 0-well, I'm not sure exact-I know it was a 3000 block of ...

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