44 Conn. App. 476 | Conn. App. Ct. | 1997
The defendant appeals
The jury reasonably could have found the following facts. On the morning of May 11,1993, Rodney Trovarelli left his home for work. As Trovarelli was entering his blue Isuzu Rodeo, which was parked in his driveway, the defendant jumped into the backseat, held a gun to Trovarelli’s head and ordered him to drive. After driving a short distance, the defendant ordered Trovarelli to stop at an abandoned house at 51 Green Street in Bridgeport and forced him into the back of the house. The defendant took Trovarelli’s wallet, ordered him to lie facedown on the floor and shot him two times in the back of the head. The defendant then fled the house
During the morning of May 11, 1993, Trovarelli’s supeivisor called Linda Trovarelli and told her that her husband had not reported for work. Linda Trovarelli became worried because she had not heard from her husband since he had left early that morning.
Sometime in the afternoon of May 11, 1993, Weaver became suspicious about the fact that the defendant had parked a new Isuzu Rodeo in her driveway. She looked in the vehicle’s glove compartment and found the Trovarellis’ telephone number. She called the number and Linda Trovarelli answered. Weaver asked her if she was selling a blue jeep or if she used drugs. Linda Trovarelli replied that she did not use drugs and that she owned a blue jeep but that it was not for sale. She then asked Weaver if she knew where Rodney Trovarelli was. Weaver responded that she did not know where he was, but that she saw a young man driving the Trovarellis’ vehicle in the Bridgeport area. She warned Linda Trovarelli not to go looking for the vehicle. Later that evening, the Bridgeport police discovered Rodney Trovarclli at 51 Green Street. He was transported to Bridgeport hospital. He survived the shooting, but was severely injured.
The next day, the defendant, at the urging of his cousin, Lyle Hassan Jones (Jones), went to the Bridgeport police station. On the way to the station, Jones spotted Officer Robert Moss of the Bridgeport police, whom he had known for a number of years. Jones spoke briefly with Moss while the defendant waited in the car. After their conversation, Moss called the Bridgeport police station and was told that an injured person had been found in a building on Green Street. Moss then
Upon arriving at the police station, the defendant and Jones met with Joseph Sherbo, the detective assigned to the case. Sherbo met with the defendant and Jones briefly in the lineup room. He then moved the discussion into the police interview room. In the interview room, Sherbo advised the defendant of his Miranda rights. The defendant waived his Miranda rights and confessed to kidnapping and shooting Rodney Trovarelli and then taking his vehicle.
I
The defendant first claims that the trial court improperly failed to suppress an inculpatory oral statement made by him to the police. He claims that because he refused to sign the typed document that contained his admissions, his earlier actions constituting a knowing, intelligent and voluntary waiver were vitiated. We are not persuaded.
Prior to trial, the defendant filed a motion to suppress the oral confession that he gave to Sherbo at the police station. A suppression hearing was conducted, at which the state presented evidence concerning the circumstances under which the defendant’s statement was made. After the hearing, the trial court denied the defendant’s motion to suppress the statement. On appeal, the defendant argues that the state failed to meet its burden of establishing that he waived his constitutional privilege against self-incrimination, as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings . . . his level of intelligence, including his IQ . . . his age ... his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Citations omitted; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).
Our scrupulous review of the record reveals that substantial evidence exists to support the trial court’s find
After the defendant waived his Miranda rights, he made an oral statement in which he admitted stealing Rodney Trovarelli’s vehicle, driving him to the house on Green Street, stealing his wallet and shooting him. Sherbo testified that the procedure he used in taking the defendant’s statement was one in which he would pose a question to the defendant, type the question, and then type the response. After Sherbo completed typing the defendant’s statement, the defendant refused to sign it. The defendant claims that his refusal to sign the statement vitiated his earlier waiver of his Miranda rights. “While the refusal to sign a . . . written statement is a ‘relevant factor in determining whether an individual knowingly, intelligently, and voluntarily waived his privilege’; State v. Derrico, [181 Conn. 151, 165, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980)]; it is not controlling and ‘may be outweighed by affirmative conduct indicative of a knowingly and intelligently made decision not to
II
The defendant next claims that it was improper for the trial court to admit the typewritten document containing the defendant’s admissions and to allow the document to be read to the jury at the trial. We disagree.
Our review of the record indicates that substantial evidence exists to support the trial court’s findings that the defendant made the statement voluntarily, that the police read him his Miranda rights and that the defendant knowingly, intelligently and voluntarily waived his Miranda rights. Furthermore, “the fact that the defendant refused to sign the statement . . . does not render his statement inadmissible.” State v. Usry, 205 Conn. 298, 307, 533 A.2d 212 (1987). Accordingly, it was proper for the trial court to admit the inculpatory statement into evidence and to permit it be read to the jury. See State v. Grant, 33 Conn. App. 647, 658-62, 637 A.2d 1116, cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994).
The defendant also claims that it was improper for the court to allow witnesses to refer to the document as the “defendant’s statement” because the document was not “made” by the defendant and signed or otherwise adopted or approved by him. The defendant failed to preseive this claim at trial. He argues that review is proper under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or as plain error pursuant to Practice Book § 4061, formerly § 4185. We disagree.
III
The defendant claims next that his right to due process under article first, § 8, of the state constitution was violated because the state was allowed to introduce at trial evidence of his statements to the police when those statements had not been electronically recorded. We reject this claim on the basis of our Supreme Court’s opinion in State v. James, 237 Conn. 390, 428-34, 678 A.2d 1338 (1996), in which the court held that electronic recording of confessions is not a prerequisite to their admissibility at trial under article first, § 8, of the state constitution.
The defendant also claims that it was improper for the trial court to admit his confession because it was not witnessed by someone other than the police officer taking the statement.
IV
The defendant claims next that trial court improperly admitted hearsay testimony by Moss. That claim con
At trial, the state asked Moss on direct examination what he did after he spoke with Jones. The defendant objected claiming that Moss’ testimony would be inadmissible hearsay.
It is axiomatic that an out-of-court statement that is not offered to prove the truth of the matter asserted therein is not hearsay. State v. Alvarez, 216 Conn. 301, 310-11, 579 A.2d 515 (1990). “Testimony of the contents of a prior oral statement . . . offered only to prove that it was made, is not hearsay.” State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967). Here, Moss’ state
The defendant also argues that, because the jury could infer what Jones had told Moss from what Moss had asked when he called the police station, Moss’ statement should be excluded under an implied hearsay theory. We acknowledge that our courts have recognized certain circumstances when, although a witness did not repeat the statements of another person, his or her testimony presented to the jury, by implication, the substance of the other person’s statements. See State v. Robinson, 213 Conn. 243, 567 A.2d 1173 (1989); In re Jose M., 30 Conn. App. 381, 386, 620 A.2d 804 (1993). Even if we were to accept the implied hearsay theory in this case, however, Jones’ statements to Moss would not run afoul of the hearsay rule because they were not offered to prove the truth of the facts asserted therein, but merely indicated that a close relative of the defendant had knowledge of the incident before the police had a suspect in the case.
“The trial court has broad discretion in ruling on the admissibility of evidence and only upon a showing of a clear abuse of discretion will this court set aside rulings on evidentiary matters.” State v. Sieving, 35 Conn. App. 173, 178, 644 A.2d 958, cert. denied, 231 Conn. 914, 648 A.2d 158 (1994). We conclude that the trial court did not abuse its discretion in admitting Moss’ statement.
The defendant also claims that it was improper for the trial court to admit Moss’ rebuttal testimony with respect to Jones’ hearsay statements. The defendant failed to object to this evidence. He seeks review under State v. Golding, supra, 213 Conn. 233. Alternatively, he seeks review under the plain error doctrine. Practice
Finally, the defendant claims that the trial court improperly admitted Moss’ supplemental report concerning the conversation that he had with Jones. The defendant objected at trial on the ground that the report is “simply redundant” and that there was no reason for its admission under the circumstances. The court admitted the report solely to challenge the credibility of Jones.
V
The defendant next claims that the trial court’s instructions were not adequate to prevent inconsistent guilty verdicts on the attempted murder and assault counts because a conscious objective to kill in the
Acknowledging that his claims are not preserved, the defendant seeks review under State v. Golding, supra, 213 Conn. 233. This claim is reviewable under Golding. See State v. Hinton, 227 Conn. 301, 313-14, 630 A.2d 593 (1993). We reject his claim, however, on the basis of on our Supreme Court’s holding in State v. Williams, 237 Conn. 748, 679 A.2d 920 (1996), that “under the appropriate circumstances, a defendant can simultaneously intend to cause the death of, and intend to cause serious physical injury to, the same victim.” Id., 757.
VI
The defendant next asserts that the trial court improperly (1) failed to instruct the jury on the role of
With regard to the defendant’s first two claims, “[d] espite the mention of Golding as the standard of review requested for these claims, the defendant’s failure to analyze the claims under Golding’s four prong test prevents us from reviewing [them]. . . . We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . This is true even though the defendant requests review of these issues under Golding. . . . [W]e conclude that lack of analysis of these claims under the four prongs of Golding prevents us from reviewing the issues further.” (Citations omitted.) State v. Ramos, 36 Conn. App. 831, 838-39, 661 A.2d 606, cert. denied, 235 Conn. 902, 662 A.2d 905 (1995).
We will, however, review the defendant’s third claim under Golding. See State v. Williams, 220 Conn. 385, 396-97, 599 A.2d 1053 (1991). The claim concerns the trial court’s instructions “that [the defendant’s testimony] necessarily involves a consideration of any interest that he might have in the case. You will consider the importance to him of the outcome of this case and his motive on that account for not telling the truth.” The defendant claims that this instruction unduly emphasized his interest in the outcome of the case. We disagree. “We have repeatedly approved the use of similar language.” Id., 397. Furthermore, in raising this challenge, the defendant omits the trial court’s prefa
The judgment is affirmed.
This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.
We note that “[w]e need not determine whether the trial court properly-found that the defendant was in custody because we dispose of the defendant’s claim on the basis that the trial court’s findings that the police gave the defendant his Miranda warnings and that the defendant validly waived those rights were not clearly erroneous.” State v. Smith, 42 Conn. App. 41,
The record is not entirely clear on how long Jones remained in the room after the interview began. Jones testified that he recalls leaving within the first five minutes because Moss said that he wanted to talk to him. Sherbo does not recall when, if ever, Jones left the interview room.
‘The defendant originally filed a motion in limine objecting to Moss’ testimony, but the trial court declined to rule on the motion at that time, and, instead, ruled on the objections as they were raised during the course of examination.
The court stated at trial that “[t]he report would be offered to show that the officer filled out a report on May 12 and included specific facts which are contrary to what [Lyle Jones] says the conversation was and that would be offered as to the credibility of Mr. [Jones]. In its final instructions, the court advised (he jury that “I just want to give you the following charge concerning statements—the statement of Officer Moss that was introduced into evidence during the rebuttal testimony of Officer Moss—his supplemental [report] was impeaching the credibility of Mr. Hassan Jones’ testimony as to what he said to Officer Moss. The other statements which have been introduced into evidence can be considered by you for substantive purposes.” The court also included a nonspecific instruction in its final charge advising the jury that, inconsistent out-of-court statements of nonparty witnesses could not be used for their truth but only for credibility.
Practice Book § 852 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”
Wo note that the same or similar instruction has been approved by our Supremo Court. State v. Stanley, supra, 223 Conn. 695-96.