Argued
February 13, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of murder,
criminal possession of a firearm and carrying a pistol
without a permit, brought to the Superior Court in the
judicial district of New Haven, where the court,
Alander, 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. Affirmed.
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.
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 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 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 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 was in the
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.
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 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 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 casein-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, 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 both Jackson and Nixon had provided
free and voluntary consent to search the bedroom because the
evidence presented at the motion to suppress hearing
established that they were coerced by the law enforcement
officers into providing consent. The defendant argues that
the warrantless search of the bedroom by the law enforcement
officers violated his constitutional rights, and, therefore,
the items of evidence seized from this search should have
been suppressed. We disagree.
In its
memorandum of decision denying the defendant's motion to
suppress, the court found the following additional facts.
‘‘Law enforcement officers . . . were seeking to
serve two arrest warrants on the defendant, [who] . . . was a
convicted felon and a suspected gang member. The officers
also possessed information from a confidential informant that
the defendant was in possession of a weapon, [had previously
been involved in shootings], and was residing with his
girlfriend . . . [Jackson] . . . [i]n one of two houses in
the Valley Street area of New Haven. On April [3], 2014,
eight to ten law enforcement officers went to 461 Valley
Street in New Haven to determine whether the defendant was at
that address and to serve the arrest warrants. They arrived
at approximately 6 a.m. Three of the officers approached the
front door of the dwelling, while the remaining officers took
up positions outside the perimeter of the house. The three
officers were armed. Karl Jacobson, a sergeant with the New
Haven Police Department, was armed with a handgun, while . .
. Podsiad . . . and State Trooper McWilliams were armed with
assault rifles. Jacobson knocked on the front door, which was
eventually answered by . . . Nixon, who was the lessee of the
home. Nixon opened the door and let the three officers inside
the house. Jacobson asked Nixon whether the defendant was
there to which Nixon replied that she did not think so.
Jacob-son then asked Nixon if they could look to see if the
defendant was present and Nixon responded, ‘go
ahead.' Jacobson stayed with Nixon as Podsiad and
McWilliams searched the premises for the defendant. The two
officers proceeded to an upstairs bedroom and knocked on the
door, which was locked. The defendant opened the door and was
immediately arrested and handcuffed. Also inside the bedroom
was . . . Jackson . . . .
‘‘The
defendant was eventually brought outside and placed inside a
patrol car. Nixon initially declined to consent to a search
of the premises. At some point, Jacobson was informed by a
patrol officer that the defendant wanted to speak with him.
Jacobson went to the patrol car where the defendant was in
custody. The defendant volunteered that the gun they were
looking for was in the bedroom and he did not want anyone
else to get in trouble for it. Jacobson informed the
defendant that Nixon would not consent to a search. Upon
hearing this news, the defendant asked to speak with Nixon.
The defendant's request was accommodated, whereupon the
defendant told Nixon that the gun was in the bedroom and to
‘just let them get it.' Nixon then signed a consent
form allowing the officers to search the bedroom. Jackson
signed a similar consent form. Each form stated that the
signer ha[d] been informed of her constitutional right not to
have a search made without a search warrant and her right to
refuse to consent to a search. The form also stated that
permission to search [was] being given ‘voluntarily and
without duress, threats, or promises of any kind.' After
obtaining the written consent to search from Nixon and
Jackson, Podsiad searched the bedroom and seized the subject
handgun located in a dresser drawer.''
The
court also specifically credited the testimony of the law
enforcement officers and discredited the conflicting
testimony of Jackson, Nixon, and the defendant. The court
stated that ‘‘Nixon and Jackson disputed the
above facts in important respects. Jackson testified that she
returned to the bedroom prior to her signing the consent form
to obtain clothes for the defendant and that it was apparent
from the disarray of the room and the open dresser drawer
that it had already been searched. [The court] find[s] this
testimony not to be credible. It is contradicted by the
testimony of Podsiad that no civilian was allowed back into
the bedroom after it was initially vacated by Jackson and the
defendant, as well as the testimony of Nixon . . . that
Jackson did not go back upstairs.
‘‘Nixon
testified that she was coerced into consenting to a search of
the bedroom because she was told by a police officer that
Jackson would be arrested if the police were required to
obtain a search warrant and a handgun was found. Nixon
testified that, since [Jackson] was pregnant and she was
concerned that she might be arrested, she was forced to
consent to the search. Jackson and the defendant offered
testimony, which supported Nixon's version of events.
[The court] do[es] not find any of this testimony to be
credible. Rather, [the court] credit[s] the testimony of
Jacobson, the lead law enforcement ...