State v. Collins , 147 Conn. App. 584 ( 2014 )

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STATE OF CONNECTICUT v. ROGEAU
R. COLLINS
(AC 35401)
DiPentima, C. J., and Sheldon and Foti, Js.
Argued October 16, 2013—officially released January 21, 2014
(Appeal from Superior Court, judicial district of
Hartford, Espinosa, J. [motion to preclude]; O’Keefe,
J. [judgment].)
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Thomas R. Garcia, senior assistant state’s
attorney, for the appellee (state).
Opinion
FOTI, J. The defendant, Rogeau R. Collins, appeals
from the judgment of conviction, rendered following a
jury trial, of felony murder in violation of General Stat-
utes § 53a-54c and robbery in the first degree in viola-
tion of General Statutes § 53a-134 (a) (2). On appeal,
the defendant claims that the trial court improperly:
(1) excluded a statement made by another suspect in
the crimes of which the defendant was convicted, (2)
excluded testimony regarding the defendant’s state-
ments to police, and (3) excluded evidence of items
seized from the residence of another suspect. We affirm
the judgment of conviction.
The jury reasonably could have found the following
facts. In March, 2009, Robert Dixon, the victim, resided
in Hartford with his girlfriend. Dixon always carried
two cell phones. He used one cell phone to sell drugs
and the other for personal matters. In addition, he
always wore an expensive pair of Cartier glasses. He
did not store the drugs he sold at his home, but kept
them at a remote location secured in a safe. The key
to the safe was on the same key ring as Dixon’s car keys.
On March 9, 2009, Dixon exchanged several phone
calls with an individual named Adrian Dean, a friend
of the defendant. At approximately 9:25 p.m. that night,
Dixon left his residence in his vehicle carrying both of
his cell phones and wearing his Cartier glasses. Some-
time thereafter, Dean joined Dixon in the vehicle. Dean
then contacted the defendant, who was driving around
the Hartford area in his girlfriend’s vehicle. Dean
arranged to meet the defendant at a location in Bloom-
field and gave the defendant directions to that location.
The defendant followed Dean’s directions and arrived
at the location at approximately the same time as Dean
and Dixon. Dixon and the defendant then drove their
vehicles toward a cul-de-sac at the end of the road.
Dixon turned his vehicle in the cul-de-sac and came to
a stop. The defendant pulled up and stopped his vehicle
to the left of Dixon’s vehicle. The defendant then exited
his vehicle. Both the defendant and Dean, who had
exited Dixon’s vehicle, approached the driver’s side
door of Dixon’s vehicle. Dixon was still sitting in the
driver’s seat of his vehicle. Dean, with a firearm in one
of his hands, opened the driver’s side door of Dixon’s
vehicle and shot Dixon in the head. Dean then asked
the defendant to search Dixon’s pockets. The defendant
began patting Dixon’s pockets when Dixon flinched and
attempted to escape the vehicle through the passenger
side door. Dixon was shot seven times as he attempted
to escape and died as a result of the multiple gunshot
wounds. The defendant and Dean then left the scene
in the defendant’s vehicle. The following morning, on
March 10, 2009, Dixon was found dead by two fish-
ermen. Dixon’s two cell phones, Cartier glasses, and
keys were not found at the scene. The defendant was
arrested on March 24, 2009.
The state, in a long form information filed on January
11, 2011, charged the defendant with murder in violation
of General Statutes § 53a-54a (a), felony murder in viola-
tion of § 53a-54c, conspiracy to commit murder in viola-
tion of General Statutes §§ 53a-48 (a) and 53a-54a (a),
robbery in the first degree in violation of § 53a-134 (a)
(2), and conspiracy to commit robbery in the first
degree in violation of §§ 53a-48 (a) and 53a-134 (a) (2).
The jury found the defendant guilty of felony murder
and robbery in the first degree, but not guilty on each
of the remaining charges. The court sentenced the
defendant to a total effective term of forty-five years
of imprisonment.1 This appeal followed. Additional
facts will be set forth as necessary.
I
The defendant first claims that the trial court improp-
erly excluded testimony of an alleged statement made
by Dean to Carlton Martin, Dean’s former cellmate in
prison, as inadmissible hearsay. Specifically, the defen-
dant contends that Martin’s testimony as to Dean’s
alleged statement was admissible as a statement against
penal interest pursuant to § 8-6 (4) of the Connecticut
Code of Evidence. We disagree.
The following additional facts and procedural history
are necessary to resolve this claim. During trial, defense
counsel notified the court that he intended to call Martin
to testify about a statement made by Dean while the
two shared a prison cell. The prosecutor objected to
Martin’s proffered testimony as inadmissible hearsay.
Defense counsel, however, argued that Martin’s testi-
mony was admissible as a statement against Dean’s
penal interest. As part of defense counsel’s offer of
proof, Martin testified outside the presence of the jury.
Martin’s testimony revealed that he was serving a
ninety-six year term of imprisonment and had shared
a prison cell with Dean between May and December,
2010. During this period, Dean and Martin watched an
episode of the television show ‘‘Cold Case,’’ which
involved betrayal between two codefendants to a crime.
The show prompted a discussion about codefendants
between Dean and Martin. During their discussion,
Dean mentioned that he still had a codefendant on trial.
He explained that he originally intended to take his
case to trial, but decided to take a twenty-five year
sentence plea deal after learning that the defendant had
implicated him in the shooting. Dean was apparently
upset, according to Martin, that the defendant gave a
statement to the police: ‘‘[E]specially when [the defen-
dant] didn’t know nothing about it . . . he didn’t even
have to go that route, all he had to do was just shut
up and go all the way.’’ The court excluded Martin’s
testimony of Dean’s statement on the basis that it did
not constitute a statement against penal interest and,
therefore, was inadmissible hearsay.
We begin by setting forth our standard of review.
It is well established that ‘‘[w]e review a trial court’s
decision to admit [or exclude] evidence, if premised on
a correct view of the law . . . for an abuse of discre-
tion.’’ (Internal quotation marks omitted.) State v.
Davis, 298 Conn. 1, 10–11, 1 A.3d 76 (2010). ‘‘[A]fter
a trial court has made the legal determination that a
particular statement is or is not hearsay, or is subject
to a hearsay exception, [it is] vested with the discretion
to admit or to bar the evidence based upon relevancy,
prejudice, or other legally appropriate grounds related
to the rule of evidence under which admission is being
sought.’’ (Internal quotation marks omitted.) State v.
Smith, 289 Conn. 598, 617–18, 960 A.2d 993 (2008).
Accordingly, ‘‘[w]e will make every reasonable pre-
sumption in favor of upholding the trial’s court ruling
and only upset it for a manifest abuse of discretion.’’
(Internal quotation marks omitted.) State v. Snelgrove,
288 Conn. 742, 758, 954 A.2d 165 (2008). ‘‘In determining
whether there has been an abuse of discretion, the
ultimate issue is whether the court . . . reasonably
[could have] conclude[d] as it did.’’ (Internal quotation
marks omitted.) State v. Davis, supra, 11.
In the present case, the trial court excluded testimony
with respect to Dean’s statement because it determined
that it did not fall within the statement against penal
interest exception to the hearsay rule. It is hornbook
law that ‘‘hearsay statements may not be admitted into
evidence unless they fall within a recognized exception
to the hearsay rule.’’ State v. Smith, supra, 289 Conn.
618; see Conn. Code Evid. § 8-2. Section 8-6 (4) of the
Connecticut Code of Evidence embodies an exception
to the hearsay rule for statements against penal interest.
Section 8-6 (4) applies where a hearsay statement made
by an unavailable declarant was ‘‘trustworthy . . .
[and] at the time of its making, so far tended to subject
the declarant to criminal liability that a reasonable per-
son in the declarant’s position would not have made
the statement unless the person believed it to be true.’’
Conn. Code Evid. § 8-6 (4). In short, the admissibility
of Dean’s statement to Martin is subject to a binary
inquiry: (1) whether Dean’s statement to Martin was
against Dean’s penal interest and, if so, (2) whether the
statement was sufficiently trustworthy.2 See State v.
Pierre, 277 Conn. 42, 67, 890 A.2d 474, cert. denied, 547
U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
‘‘As to what is against penal interest, quite obviously
the essential characteristic is the exposure to risk of
punishment for a crime . . . . Moreover, it is not the
fact that the declaration is against interest but the
awareness of that fact by the declarant which gives
the statement significance.’’ (Citations omitted; internal
quotation marks omitted.) State v. Bryant, 202 Conn.
676, 695–96, 523 A.2d 451 (1987). Our review of the
evidence before the court reveals that Dean’s statement
was not against his penal interest because it did not
subject him to criminal punishment. Prior to making the
alleged statement to Martin, Dean already had pleaded
guilty to conspiracy to commit robbery in the first
degree, robbery in the first degree, and felony murder
on February 3, 2010.3 During the plea canvass, Dean
admitted that both he and the defendant had shot and
robbed Dixon. Dean was subsequently sentenced to
twenty-five years of imprisonment. Dean already was
incarcerated when he made the alleged statement as a
result of pleading guilty to the crimes that were the
subject of his alleged statement. Because Dean could
not have been subject to additional punishment as a
result his statement to Martin, it cannot function as one
against Dean’s penal interest.4 See State v. Thomas,
296 Conn. 375, 384–85, 995 A.2d 65 (2010) (where case
disposed of on guilty plea, jeopardy attaches at least
by time of sentencing); see also State v. Smith, supra,289 Conn. 632 (‘‘the admission of a crime supports an
inference of reliability because people do not tend to
subject themselves to criminal prosecution lightly’’). On
the basis of the foregoing, we conclude that Dean’s
alleged statement to Martin was not against his penal
interest.5 Therefore, the court did not abuse its discre-
tion by excluding Martin’s testimony as inadmissible
hearsay.
II
The defendant next claims that the court improperly
precluded evidence of the circumstances in which he
made certain statements to the police and, in doing so,
deprived him of his right to a present a complete defense
as required by the fourteenth amendment to the federal
constitution. See U.S. Const., amend. XIV, § 1. We
disagree.
The following additional facts and procedural history
are necessary to resolve this claim. Prior to trial, the
defendant filed a motion to suppress written statements
he made in the presence of Bloomfield police Sergeant
Shawn Bolden. Following a hearing, the court denied
the defendant’s motion to suppress.6 During trial, the
state called Bolden as part of its case-in-chief. On direct
examination, Bolden testified about his interview with
the defendant on March 19, 2009. He specifically testi-
fied that, at the beginning of the interview, he informed
the defendant that ‘‘he wasn’t under arrest . . . he was
free to leave and . . . he didn’t have to submit to an
interview.’’ Bolden also testified that the defendant did
not seem to have any trouble understanding him and
did not appear to be under the influence of drugs or
alcohol. Thereafter, the state introduced the defen-
dant’s written statements through Bolden.
On cross-examination, defense counsel probed the
circumstances surrounding the defendant’s ques-
tioning. Through the cross-examination of Bolden,
defense counsel established that (1) the defendant was
at all times escorted by a police officer while at the
police station for questioning, (2) the questioning lasted
approximately nine hours, (3) the police utilized certain
questioning techniques, (4) Bolden and the other officer
present during questioning were physically large in
comparison to the defendant’s stature, (5) the conversa-
tion was not recorded, and (6) the defendant was born
in Jamaica and came to the United States as a young boy.
Defense counsel then inquired about the defendant’s
waiver of his Miranda rights.7 Bolden testified that he
had the defendant fill out a Miranda waiver form.
Defense counsel asked Bolden, with respect to the
Miranda waiver, ‘‘you put on there that [the defendant]
understood English to a limited degree, could write
to a limited degree, correct?’’ Bolden answered in the
affirmative, prompting defense counsel to inquire:
‘‘Were you able to test . . . to what dimension that
was, how limited he was in his understanding?’’ The
prosecutor objected on relevance grounds and
requested to be heard outside the presence of the jury.
After the jury left the courtroom, the prosecutor
argued that ‘‘[defense counsel] is getting into the cus-
tody and voluntariness of the waiver . . . [t]here’s
already been a prior ruling on this issue . . . .’’ The
court sustained the objection and informed defense
counsel: ‘‘[Y]ou can ask whatever you want [if] you’re
trying to show coercion or that it’s a false statement
or inaccurate. . . . But when [your questions] mix in
legal issues like the question of voluntariness and cus-
tody . . . [you’re arguing] legal conclusions that have
already been visited and ruled on . . . . [Y]ou’re just
trying to circumvent the ruling of the court . . . . [Y]ou
can ask as many questions as you want about the
circumstances of the encounter.’’ (Emphasis added.)
The defendant’s claim of error is limited to the court’s
ruling to exclude evidence with respect to the voluntari-
ness of the defendant’s Miranda waiver.
It is well established that ‘‘[a] defendant’s fundamen-
tal right to present a defense, guaranteed by the due
process clause of the fourteenth amendment to the
United States constitution, includes the right to present
evidence of the circumstances under which a custodial
statement was made.’’ State v. Fernandez, 27 Conn.
App. 73, 78, 604 A.2d 1308, cert. denied, 222 Conn. 904,
606 A.2d 1330 (1992); see also Crane v. Kentucky, 476
U.S. 683, 690–91, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986).
The reason for this rule is that certain of those circum-
stances, such as a police interrogator’s use of coercive
tactics to force or induce the defendant to make a
statement or the defendant’s special susceptibility to
being influenced by such tactics to make a false state-
ment, may reasonably be claimed to cast doubt on the
reliability of the statement.
Our review of the record indicates that the court’s
ruling did not violate this rule, or thereby undermine the
defendant’s constitutional right to present a complete
defense. Rather, the ruling was limited to precluding
evidence concerning the voluntariness of the defen-
dant’s Miranda waiver, except to the extent that such
evidence was offered to test the reliability of the defen-
dant’s statements in light of the circumstances in which
they were made. Indeed, the court expressly permitted
defense counsel to thoroughly probe the circumstances
surrounding the defendant’s statements, which is
exactly what the constitution requires. See Crane v.
Kentucky, supra, 476 U.S. 689–90 (defendant must be
afforded opportunity to challenge credibility of custo-
dial statement). Accordingly, the defendant’s constitu-
tional claim is without merit.8
The defendant’s parallel claim of evidentiary error
must also fail. Defense counsel offered the excluded
testimony to show that the defendant’s statements were
‘‘not completely knowing and voluntarily given.’’ He
never claimed, however, that the purpose or effect of
such testimony would be to show that the defendant’s
statements were unreliable in light of the circumstances
in which they were made. A challenge to the voluntari-
ness of a defendant’s statements to the police may be
based upon a claim that the procedures used to obtain
them were of the sort that tends to undermine the
statements’ reliability. It may, by contrast, be based
upon a claim that the defendant made the statements
in question without knowing the full extent of his legal
rights to remain silent and/or not to submit to custodial
interrogation without the assistance of private or
appointed counsel. Evidence supporting the former
claim is, by its very nature, admissible in evidence to
rebut admissions contained in the defendant’s custodial
statements, and thus to support his defense. Evidence
supporting the latter claim, by contrast, although poten-
tially supportive of a motion to suppress the defendant’s
statements based upon an alleged violation of the defen-
dant’s privilege against self-incrimination and/or his
right to counsel, does not necessarily bear upon, or
thus constitute admissible trial evidence with respect
to, the reliability of the challenged statements. Here,
then, where the only proffered purpose of the excluded
testimony was to undermine the voluntariness of the
defendant’s waiver of his Miranda rights, without any
accompanying indication that such testimony was
offered to challenge the reliability of those statements,
its exclusion by the trial court was not erroneous.
Accordingly, in these circumstances, we conclude that
the court did not abuse its discretion by excluding testi-
mony concerning the voluntariness of the defendant’s
Miranda waiver.
III
The defendant next claims that the court improperly
excluded as irrelevant evidence that Cartier glasses
were found at Dean’s home. We disagree.
The following additional facts and procedural history
are necessary to resolve this claim. Prior to the defen-
dant’s case-in-chief during trial, defense counsel
announced his intention to call Hartford police Detec-
tive Brian Plourde. Plourde was involved in the execu-
tion of a search warrant at Dean’s residence where the
police discovered, inter alia, a safe containing four cell
phones, a pair of Cartier glasses, and ammunition. The
state objected to Plourde’s testimony on the ground
that it was irrelevant. Specifically, the state argued that
the Cartier glasses never were linked to the victim—a
fact previously conceded by defense counsel. Defense
counsel argued, however, that the Cartier glasses were
relevant because they were found in Dean’s residence
and ‘‘Cartier glasses were reported missing from
[Dixon]. So circumstantially it ties . . . Dean to the
incident as having taken those glasses from [Dixon].’’
When the court asked defense counsel why he did not
ask Dixon’s girlfriend to identify the Cartier glasses
as Dixon’s during cross-examination, defense counsel
stated: ‘‘Honestly, it didn’t occur to me at that point to
go ahead and show her a picture of the glasses.’’ The
state subsequently stated that the police did not link
the Cartier glasses to Dixon. The court sustained the
state’s objection in part, excluding evidence with
respect to the Cartier glasses.9
The principles governing our review of evidentiary
claims are set forth in part I of this opinion. We supple-
ment, however, the specific legal principles that govern
our analysis of this particular claim. ‘‘Relevant evidence
is evidence that has a logical tendency to aid the trier
in the determination of an issue. . . . One fact is rele-
vant to another if in the common course of events the
existence of one, alone or with other facts, renders
the existence of the other either more certain or more
probable. . . . Evidence is irrelevant or too remote if
there is such a want of open and visible connection
between the evidentiary and principal facts that, all
things considered, the former is not worthy or safe to
be admitted in the proof of the latter. . . . Evidence
is not rendered inadmissible because it is not conclu-
sive. All that is required is that the evidence tend to
support a relevant fact even to a slight degree, so long
as it is not prejudicial or merely cumulative. . . . The
trial court has wide discretion to determine the rele-
vancy of evidence and [e]very reasonable presumption
should be made in favor of the correctness of the court’s
ruling in determining whether there has been an abuse
of discretion.’’ (Internal quotation marks omitted.) State
v. Pena, 301 Conn. 669, 674, 22 A.3d 611 (2011).
The defendant contends that the Cartier glasses are
relevant because ‘‘glasses costing $3000 are not a com-
mon item, and evidence that Dean had them in his safe
could be used to support an inference that it was Dean
who robbed Dixon of the glasses.’’ Our review of the
record indicates that the value of the Cartier glasses
seized from Dean’s residence never was established.
Moreover, the seized Cartier glasses never were identi-
fied or connected as being the Cartier glasses owned
and worn by Dixon. For all purposes, it appears that
the defendant’s sole foundation for admitting the seized
Cartier glasses was that they were the same brand as
the glasses worn by Dixon. ‘‘[T]he proffering party bears
the burden of establishing the relevance of the offered
testimony. Unless a proper foundation is established,
the evidence is irrelevant.’’ (Internal quotation marks
omitted.) Deegan v. Simmons, 100 Conn. App. 524, 540,
918 A.2d 998, cert. denied, 282 Conn. 923, 925 A.2d 1103(2007). Making every reasonable presumption in favor
of the trial court’s ruling, we cannot conclude that the
court abused its discretion by excluding the seized Car-
tier glasses as evidence that it was Dean, not the defen-
dant, who robbed Dixon of his Cartier glasses.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Dean also was arrested and sentenced to twenty-five years of imprison-
ment after negotiating a plea bargain with the state.
2
The issue of Dean’s unavailability was abandoned by the parties during
oral argument before this court. Although the trial court did not expressly
determine that Dean was unavailable, the parties stipulated ‘‘[t]hat if the
court ordered [Dean] to testify, he would refuse . . . [and] if he refuses to
testify before the court, which we agreed he would do, that would render
him unavailable.’’ The court later instructed the jury with respect to the
parties’ stipulation as follows: ‘‘[I]f . . . Dean was called as a witness by
either the prosecutor or the defense, he would refuse to answer any
questions.’’
3
Prior to pleading guilty, Dean offered conflicting accounts of what
occurred on March 9, 2009, to the police. On March 18, 2009, Dean denied
any involvement in Dixon’s murder. The next day, March 19, 2009, Dean
then stated that the defendant was solely responsible for killing Dixon.
4
The defendant contends that Dean’s statement was against his penal
interest because, if it were true, it follows that he was subject to criminal
liability for making a false statement to police in March, 2009. See footnote
3 of this opinion. We disagree. Dean did not face criminal liability for having
made a false statement to the police at the time he made the alleged statement
to Martin. Both of Dean’s statements to the police occurred in March, 2009.
He made the alleged statement to Martin no earlier than May, 2010, more
than one year after his statements to the police. Thus, the limitations period
for prosecuting Dean for having made a false statement to the police had
already expired. See General Statutes § 53a-157b (false statement is class
A misdemeanor); General Statutes § 53a-36 (sentence of imprisonment for
class A misdemeanor not to exceed one year); General Statutes § 54-193
(c) (where punishment of offense does not exceed one year, state cannot
prosecute if more than one year has passed from date offense is committed).
5
Because Dean’s statement was not against his penal interest, it is not
necessary to determine if it was ‘‘trustworthy’’ for purposes of § 8-6 (4) of
the Connecticut Code of Evidence.
6
In denying the defendant’s motion to suppress, the court determined
that the defendant’s statements were not the fruit of ‘‘an illegal arrest or
detention.’’ The court further determined that ‘‘[t]he defendant was properly
advised of his Miranda rights and he knowingly, voluntarily and intelligently
waived those rights. The statements were not the product of coercion,
deception, manipulation or overreaching by the officers.’’
7
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
8
Although the court, in making its evidentiary ruling, expressly noted that
it had already decided the issue of voluntariness in making its ruling on the
defendant’s motion to suppress statements, that ruling had no logical or
legal bearing on the evidentiary question presented for its decision. Even
if part of the court’s suppression ruling had rejected a claim that the police
had subjected the defendant to the sort of coercive interrogation tactics
that tend naturally to produce unreliable statements, the defendant retained
the right to present evidence to the jury attacking the reliability of his
statements on the basis of such coercive police tactics.
9
The court, however, permitted the defendant to introduce the ammuni-
tion found in Dean’s safe. On appeal, the defendant contends that the court
erred by excluding testimony concerning the Cartier glasses and the four
cell phones found in Dean’s safe. The state, however, contends that the
defendant’s claim with respect to the four cell phones was not preserved
for appellate review. We agree. During trial, defense counsel indicated to
the court that the police recovered several items from Dean’s safe, but
stated that he only intended to introduce specific items: ‘‘[T]he specific
items that I would seek to introduce would be limited to . . . [ammunition,
two firearms and] a pair of Cartier glasses . . . .’’ The court then made its
ruling based on defense counsel’s limited offer of evidence, which did not
include the four cell phones found in Dean’s safe. The admissibility of
the four cell phones, therefore, was never ruled upon by the court. ‘‘It is
fundamental that claims of error must be distinctly raised and decided in
the trial court . . . . [We] will not address issues not decided by the trial
court.’’ (Internal quotation marks omitted.) State v. Faison, 112 Conn. App.
373, 379–80, 962 A.2d 860 (2009). We, therefore, decline to review the defen-
dant’s claim with respect to the admissibility of the four cell phones.