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State v. Alexis

Court of Appeals of Connecticut

November 5, 2019

STATE OF CONNECTICUT
v.
GARYL ALEXIS

          Argued January 9, 2019

         Procedural History

         Substitute information charging the defendant with the crimes of robbery in the first degree and threatening in the second degree, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the jury before Kahn, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

          Robert L. O'Brien, assigned counsel, with whom, on the brief, was William A. Adsit, for the appellant (defendant).

          Jennifer F. Miller, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

          Keller, Moll and Bishop, Js.

          OPINION

          MOLL, J.

         The defendant, Garyl Alexis, appeals from the judgment of conviction, rendered following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4)[1] and threatening in the second degree in violation of General Statutes § 53a-62 (a) (1).[2] On appeal, the defendant claims that (1) the trial court erred by admitting into evidence an unduly prejudicial photograph of guns that had minimal, if any, probative value, and (2) pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the state violated his due process right to a fair trial by eliciting testimony and making a remark during closing arguments about the defendant's silence following his arrest and the advisement of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We conclude that any error relating to the court's admission of the photograph was harmless and that any Doyle violation was harmless beyond a reasonable doubt. Accordingly, we affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. In May, 2015, Jorge Perez and his girlfriend, Paige Whitley, lived with Whitley's parents in a first floor apartment of a multifamily home in Stratford (Whitley residence). The defendant lived several blocks away in Stratford. On May 21, 2015, Perez and Whitley were present at the Whitley residence. At 9:24 a.m., Perez sent a text message to the defendant and invited him to come over to purchase marijuana. The defendant went to the Whitley residence, entered through the back door, and joined Perez and Whitley in Whitley's bedroom. The defendant then began chatting with Perez and Whitley. During their conversation, Perez removed a bag of marijuana from the bedroom closet and handed it to the defendant to allow the defendant to inspect its contents. Shortly thereafter, the defendant displayed a black, semiautomatic pistol and ordered Perez and Whitley to get down on the floor, repeating the order multiple times. Perez and Whitley remained motionless, and the defendant grabbed the bag of marijuana, which had been placed on a table, and ran out of the apartment through the back door. At some point prior to fleeing the Whitley residence, the defendant dropped his wallet in Whitley's bedroom. At 10:21 a.m., after the defendant had left, Perez sent a text message to the defendant, stating: ‘‘Dude cmon. For what? I thought we were chill.'' At 10:34 a.m., the defendant sent a text message to Perez in reply, stating: ‘‘Everybody is food and I want my wallet back boy unless you like shells I'm broke starving hate it had to be you I WANT MY WALLET BACK OR IMMA SEE U cuz.'' Thereafter, Perez and Whitley sought advice from Whitley's father, who, at the time, was outside in front of the apartment. After speaking with Whitley's father, Perez called the police to report the incident.

         Shortly thereafter, Officer Brian McCarthy and other police officers of the Stratford Police Department arrived at the Whitley residence, and Perez and Whitley provided written statements regarding what had occurred. The police began searching for the defendant, and, approximately twenty minutes after receiving the call from Perez, they were able to locate and detain the defendant just a few blocks away from the Whitley residence. Meanwhile, the police drove along the main routes between the Whitley residence and the defendant's residence and conducted a general search of the area where the defendant was located, but they were not able to locate the gun or the bag of marijuana. The police were able to recover the defendant's wallet and his cell phone, and Officer Paul Fressola performed two forensic examinations of the cell phone. During the second forensic examination, Officer Fressola discovered, among other things, a deleted photograph in which five firearms were displayed next to one another (photograph).

         On June 8, 2015, by long form information, the state charged the defendant with one count of robbery in the first degree in violation of § 53a-134 (a) (4) and one count of threatening in the second degree in violation of § 53a-62 (a) (1). On September 30, 2015, the state filed a substitute long form information containing the same charges. On January 30, 2017, following a jury trial held on January 26, 27 and 30, 2017, the defendant was found guilty as to both counts. On March 13, 2017, the court imposed a total effective sentence of eight years of incarceration, execution suspended after three years, followed by five years of probation. This appeal followed. Additional facts and procedural history will be provided as necessary.

         I

         The defendant first claims that the trial court erred by admitting into evidence state exhibits 3, 4, and 7, which were three iterations of the photograph, in which five firearms were displayed, that had been extracted from the defendant's cell phone. Specifically, the defendant argues that the prejudicial effect of such evidence outweighed its probative value, if any, and that the unknown manner in which the photograph was created or saved on the defendant's cell phone further undermines the photograph's reliability. The defendant also makes the related claim that, having admitted the three iterations of the photograph, the trial court erred by failing to give, sua sponte, an appropriate limiting instruction to the jury. The state contends, in response, that the trial court properly admitted the photograph, that no limiting instruction was necessary, and that the defendant has failed to establish that any error was harmful. For the reasons that follow, we conclude that the defendant has failed to demonstrate that any error in the court's admission of the photograph and/or the lack of a limiting instruction relating thereto resulted in harm.

         The following additional facts and procedural history are relevant to the defendant's claim. On January 26, 2017, just prior to the commencement of trial, the state provided defense counsel with additional evidence that had been recovered during the second forensic examination of the defendant's cell phone. This additional evidence included, but was not limited to, the photograph and an accompanying extraction report, which showed that the photograph was created and accessed on May 16, 2015, five days before the robbery. Defense counsel orally moved to preclude the introduction of the photograph on the grounds that it lacked probative value, was unduly prejudicial, and was of unknown origin (i.e., an objection sounding in authentication). In response, the state argued that the probative value of the photograph outweighed its prejudicial impact because Perez and Whitley identified a gun in the photograph as being similar to the one the defendant displayed during the robbery. Thereafter, the court indicated that it would admit the photograph subject to a proper foundation being laid by the forensic examiner, reasoning that the prejudicial impact did not outweigh the photograph's highly probative value.[3] Trial commenced immediately thereafter.

         The state first called Perez and then Whitley to testify. Perez and Whitley made in-court identifications of the defendant. Perez testified that he recalled the defendant, on the date in question, displaying a black, semiautomatic pistol; Whitley testified similarly that the defendant had pulled out a gun. Using a pen to mark and initial separate copies of the photograph, Perez and Whitley identified the same gun in the photograph as being similar to the gun that the defendant displayed during the incident.[4] When questioned about the text message sent by the defendant to Perez shortly after the incident, Perez and Whitley testified that they interpreted the defendant's use of the term ‘‘shells'' to mean that the defendant would shoot Perez if Perez did not return the defendant's wallet. Given that Perez and Whitley identified the same gun depicted in the photograph and in light of the fact that the photograph was found on the defendant's cell phone, the court explained, outside the presence of the jury, that ‘‘there's a direct connection between the photo[graph] and the incident here which makes it highly probative as I said earlier and it comes in because its probative value outweighs its prejudicial impact.''

         On January 27, 2017, the state called Officer Fressola to testify. Officer Fressola testified that, a few days after the defendant's cell phone was seized by the police, he performed an initial forensic examination of the cell phone, which involved the retrieval of readily available content, i.e., files that were not hidden or deleted. Officer Fressola also testified that, months later, he performed a second, more in-depth, forensic examination, which involved the recovery of deleted files, one of which was the photograph. He testified that he did not modify in any way the photograph or any other files retrieved. During the examination of Officer Fressola, the court admitted in full (1) an unmarked version of the photograph in color appended to the extraction report (state exhibit 3), (2) a black and white copy of the photograph (and extraction report) marked up by Perez during his testimony (state exhibit 4), and (3) a color copy of the photograph marked up by Whitley during her testimony (state exhibit 7). The court subsequently stated, outside the presence of the jury, that state exhibits 3, 4, and 7 had been admitted into evidence as full exhibits because the state established a connection between the gun allegedly displayed by the defendant during the incident and a gun depicted in the photograph. The court further explained: ‘‘Given that the image, which was found on the defendant's phone matches the description given by the alleged victims of the gun that they claim was pulled on them and they identified that as being the gun in this court's view made it highly probative and its probative value outweighed its prejudicial impact and that's why I allowed it.''

         Against this backdrop, we now turn to the defendant's contention that the court committed reversible error when it admitted into evidence state exhibits 3, 4, and 7. ‘‘We review the trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion. . . . The trial court has wide discretion to determine the relevancy [and admissibility] of evidence . . . . In order to establish reversible error on an evidentiary impropriety . . . the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.'' (Internal quotation marks omitted.) State v. Badaracco, 156 Conn.App. 650, 665- 66, 114 A.3d 507 (2015).

         ‘‘When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [W]hether [an improper ruling] is harmless in a particular case depends upon a number of factors, such as the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. . . . Most importantly, we must examine the impact of the . . . evidence on the trier of fact and the result of the trial. . . . [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error. . . . Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.'' (Internal quotation marks omitted.) State v. Bouknight, 323 Conn. 620, 626-27, 149 A.3d 975 (2016).

         Even assuming arguendo that the court erred in admitting the photograph and not giving a limiting instruction relating thereto, and applying the principles described previously in this opinion, we have a fair assurance that any error did not substantially affect the verdict. The state's case against the defendant without the photograph was remarkably strong. The witnesses, Perez and Whitley, both identified the defendant, whom they knew, as the perpetrator. Perez and Whitley testified consistently that, after chatting for a short while, the defendant suddenly threatened them with a gun, grabbed the bag of marijuana, and ran out of the apartment, accidentally leaving his wallet behind. Their version of events was consistent with the text messages between Perez and the defendant, which placed the defendant at the Whitley residence at the relevant time and which included the defendant's highly inculpatory statement (i.e., ‘‘Everybody is food and I want my wallet back boy unless you like shells I'm broke starving hate it had to be you I WANT MY WALLET BACK OR IMMA SEE U cuz''). Moreover, the state presented evidence that the defendant's wallet was seized from the Whitley residence, further corroborating Perez and Whitley's version of events. The strength of the foregoing evidence leads us to a fair assurance that the admission of the photograph did not substantially affect the verdict.

         In light of the foregoing, we conclude that the defendant has not satisfied his burden to demonstrate that any error relating to the admission of the photograph was ...


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