State v. Burton

         Argued February 13, 2019

         Appeal from Superior Court, Judicial District of New Haven, Alander, J.

Page 735

[Copyrighted Material Omitted]

Page 736

[Copyrighted Material Omitted]

Page 737

          Alice Osedach, assistant public defender, for the appellant (defendant).

         Rocco A. Chiarenza, assistant state’s attorney, with whom, on the brief, were Patrick J. Griffin, state’s attorney, and John P. Doyle, Jr., senior assistant state’s attorney, for the appellee (state).

         DiPentima, C.J., and Prescott and Bright, Js.

          OPINION

         BRIGHT, J.

         [191 Conn.App. 811] The defendant, Jaquwan Burton, appeals^[1] from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § § 53a-54a (a) and 53a-8, criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress items of evidence seized from his girlfriend’s bedroom located at her mother’s residence because neither his girlfriend nor her mother provided voluntary [191 Conn.App. 812] consent to search therein, (2) excluded evidence concerning the inability of two eyewitnesses to identify extrajudicially the defendant from a photographic array as the shooter, and (3) excluded from evidence a video recording of an interview between an eyewitness and the police. We affirm the judgment of the trial court.

          The relevant facts, as reasonably could have been found by the jury, and procedural

Page 738

history, are as follows. On the evening of February 10, 2014, the defendant called his friend, John Helwig, and indicated that he wanted a ride to buy some marijuana. Helwig, in his gray or "greenish" car, picked up the defendant at a house on Valley Street in New Haven, at which the defendant’s girlfriend, Laneice Jackson, resided with her mother, Patrice Nixon. Helwig then picked up two other males, and the defendant instructed Helwig to drive to an address in the proximity of 31 Kossuth Street in New Haven and to park on a side street. When they arrived, the defendant exited the vehicle alone and was talking on his cell phone to the victim, Kyle Brown-Edwards, about a marijuana transaction. The defendant stated to the victim that he was "right around the corner," and then the defendant walked away behind the vehicle.

         Meanwhile, the victim and his friends, Joseph Cordy and Perry,^[2] were present on the second floor of the victim’s residence at 31 Kossuth Street. After speaking with the defendant on his cell phone, the victim, at approximately 8:30 p.m., with marijuana in his possession, proceeded to go downstairs to the front entrance of the residence. While standing in the doorway of the front entrance, the victim was shot in the face by the defendant. Cordy heard the gunshot, observed the victim at the bottom of the stairs, and then called the [191 Conn.App. 813] police. At the same time, the victim’s cousin, Jeremy Brown, and Jeremy’s girlfriend, Morgan Brown, were somewhere outside the residence at 31 Kossuth Street.

          Approximately five minutes after he left Helwig’s vehicle, the defendant sprinted back to the vehicle with a gun in his hand and, after entering the vehicle, pointed the gun at Helwig and told him to drive. Helwig then drove to his grandmother’s residence. There, the defendant told Helwig that he had planned to rob the victim, but, after the victim declined "to give it up" and gave him "a weird look," he shot the victim in the face. The defendant also asked Helwig for some cleaner to remove the blood from his sneakers.

         At approximately 8:30 p.m., New Haven police were dispatched to 31 Kossuth Street in response to a report of someone being shot and, upon arrival, observed that the victim had a gunshot wound to his head. The victim was transported to a hospital, and he died as a result of his injuries. Later that same night, New Haven police investigated the crime scene and seized a single nine millimeter shell casing from the floor at the bottom of the staircase near the doorway inside 31 Kossuth Street. New Haven police also seized the victim’s cell phone, which was provided to them by Cordy. An examination of the victim’s cell phone revealed one missed call and two completed calls on February 10, 2014, between 8:21 p.m. and 8:31 p.m., from the defendant’s cell phone.

          On the morning of April 3, 2014, several law enforcement officers went to 461 Valley Street to arrest the defendant pursuant to an outstanding arrest warrant unrelated to the homicide of the victim. Nixon answered the door and permitted State Trooper Chris McWilliams and New Haven Police Sergeant Karl Jacobson and Detective Martin Podsiad to enter the premises. McWilliams and Podsiad proceeded upstairs to a locked bedroom, and, after they had knocked, the defendant opened the door. The defendant was taken into custody and brought outside to a patrol car. Jackson, who also [191 Conn.App. 814] was in the

Page 739

bedroom, was escorted downstairs. The officers did not have a search warrant, but they received written consent to search the bedroom from both Jackson and Nixon. The officers searched the bedroom and seized, among other things, a two-tone chrome and black nine millimeter handgun, an ammunition magazine, and fifteen rounds of nine millimeter ammunition from inside a dresser drawer.

          Further investigation revealed that the nine millimeter shell casing that was found at the crime scene was in "substantial agreement" with the nine millimeter handgun seized from the dresser in the bedroom. Furthermore, the defendant’s friends had seen him always carrying a particular nine millimeter gun that matched the two-tone appearance of the gun found in the dresser. Also as part of their investigation, law enforcement seized the defendant’s cell phone. Thereon, they discovered a video of the defendant reacting to a television news report of the victim’s murder, and pictures of himself, prior to the shooting, holding a two-tone handgun matching the one found in the dresser. The defendant thereafter was charged with murder, criminal possession of a firearm, and carrying a pistol without a permit. He pleaded not guilty and elected a jury trial.

          On March 31, 2016, before trial, the defendant filed a motion to suppress the evidence seized from the bedroom at 461 Valley Street, specifically including the nine millimeter handgun, tests performed thereon, and any testimony related thereto. The defendant maintained that the warrantless search of the bedroom at 461 Valley Street violated his rights under the fourth amendment to the constitution of the United States and article first, § 7, of the constitution of Connecticut and, thus, he argued that the fruit of those searches must be suppressed. In contrast, the state argued that the searches and seizures did not violate the defendant’s constitutional rights because both Jackson and Nixon provided voluntary consent to search the bedroom.

         [191 Conn.App. 815] On January 30, 2017, after a two day evidentiary hearing, the court issued a memorandum of decision in which it denied the defendant’s motion to suppress. Therein, the court found that the credible evidence established that the state proved that the warrantless search of the bedroom at 461 Valley Street and seizure of the handgun therein did not violate the defendant’s constitutional rights because consent to search was freely and voluntarily given by Jackson and Nixon, who were the individuals with the requisite authority to do so.

         Thereafter, the defendant’s case proceeded to a jury trial. During the state’s case-in-chief, the defendant sought to introduce testimony and documentary evidence to establish that Morgan Brown and Jeremy Brown (collectively, the Browns), who were potential eyewitnesses to the murder and not available to testify at trial, each previously had been unable to identify the defendant in a photographic array. The defendant first asked Detective Michael Wuchek, who was the lead investigator in connection with the homicide of the victim, whether the Browns were able to identify the defendant in a photographic array. The state objected, and the court excused the jury. The court heard argument and sustained the state’s objection on the ground that Wuchek’s testimony as to whether the Browns were able to identify the defendant was hearsay and, because they were unavailable to testify, the pretrial identification exception to the hearsay rule; see Conn. Code Evid. § 8-5 (2); ^[3] did

Page 740

not apply to his testimony. Second, still outside the presence of the jury, defense counsel made an offer of proof as to the photographic array documents shown to the Browns. Those documents included [191 Conn.App. 816] a single sheet containing eight photographs of individuals, including the defendant, and two instruction sheets, one purportedly signed by Morgan Brown and one purportedly signed by Jeremy Brown. Defense counsel argued that these documents were admissible pursuant to the business records exception to the hearsay rule. See Conn. Code Evid. § 8-4 (a).^[4] The state objected, and the court sustained the objection on the ground that the inference drawn from the documents that the Browns were unable to identify the defendant constituted hearsay that was not excepted from the hearsay rule pursuant to § 8-5 (2) of the Connecticut Code of Evidence.

         Several days later, in the course of the state’s case-in-chief, the defendant filed a motion to admit into evidence the video recording of an interview between Morgan Brown and the police on the night of the victim’s murder because he believed that Morgan Brown’s description of the events that night contradicted the state’s evidence in certain important respects. In his memorandum of law in support of his motion to admit, the defendant maintained that the video recording was admissible pursuant to the residual exception to the hearsay rule. See Conn. Code Evid. § 8-9.^[5] The next day, the court, after it heard argument from both parties, [191 Conn.App. 817] issued an oral decision in which, after expressing doubt as to whether the defendant had established that Morgan Brown was unavailable, it denied the defendant’s motion on the ground that the interview was not trustworthy and reliable because the state would be unable to cross-examine Morgan Brown about the inconsistencies therein.

          The jury subsequently found the defendant guilty of all charges, and the court, after rendering judgment in accordance with the verdict, sentenced the defendant to a total effective sentence of fifty-five years incarceration and imposed a fine of $5000. This appeal followed. Additional facts will be set forth as necessary.

          I

          The defendant first claims that the court improperly denied his motion to suppress several items of evidence seized from Jackson’s bedroom located at Nixon’s residence because neither Jackson nor Nixon provided voluntary consent to search therein. Specifically, he contends that the court erroneously found that ...