Argued
February 13, 2019
Appeal
from Superior Court, Judicial District of New Haven, Alander,
J.
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Alice
Osedach, assistant public defender, for the appellant
(defendant).
Rocco
A. Chiarenza, assistant states attorney, with whom, on the
brief, were Patrick J. Griffin, states attorney, and John P.
Doyle, Jr., senior assistant states 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
girlfriends bedroom located at her mothers 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
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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
defendants 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 victims 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 victims cousin, Jeremy Brown, and
Jeremys girlfriend, Morgan Brown, were somewhere outside the
residence at 31 Kossuth Street.
Approximately five minutes after he left Helwigs 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
grandmothers 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 victims
cell phone, which was provided to them by Cordy. An
examination of the victims 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 defendants 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
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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 defendants 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 defendants
cell phone. Thereon, they discovered a video of the defendant
reacting to a television news report of the victims 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 defendants 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 defendants 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 defendants
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 defendants case proceeded to a jury trial. During the
states 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 states objection
on the ground that Wucheks 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
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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 states 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 victims murder because he believed that
Morgan Browns description of the events that night
contradicted the states 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 defendants
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
Jacksons bedroom located at Nixons residence because
neither Jackson nor Nixon provided voluntary consent to
search therein. Specifically, he contends that the court
erroneously found that ...