STATE OF CONNECTICUT v. HORVIL F. LEBRICK
AC 39980
Alvord, Prescott and Pellegrino, Js.
January 16, 2018
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Syllabus
Convicted of the crimes of felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree, attempt to commit robbery in the first degree and assault in the first degree in connection with the shooting death of the victim, the defendant appealed. He claimed, inter alia, that the trial court improperly admitted into evidence the former testimony of a witness, P, who testified at the defendant‘s probable cause hearing. The defendant also claimed that the court improperly permitted the testimony of a firearm and tool mark expert, S, who testified at trial regarding the ballistic evidence collected at the crime scene. Held:
- The defendant could not prevail on his claim that the former testimony of P was inadmissible hearsay because the state failed to establish that P was unavailable and, thus, P‘s testimony did not fall within the exception to the hearsay rule set forth in
§ 8-6 (1) of the Connecticut Code of Evidence : the trial court did not abuse its discretion in admitting the challenged testimony, which involved substantially similar issues to those at the defendant‘s trial, as the record demonstrated that the defendant had a full and fair opportunity to cross-examine P about her testimony at the probable cause hearing, and the state made a good faith effort to locate P by attempting to contact P at her last known address and phone number found in the case file and searching multiple computer databases in order to locate P, which was unsuccessful; moreover, the defendant‘s claim that the admission of P‘s former testimony violated his constitutional right to confrontation was unavailing, as P was unavailable to testify at trial and the defendant had a full and fair opportunity to cross-examine her at the probable cause hearing regarding her testimony. - The defendant‘s unpreserved claim that the trial court improperly admitted S‘s testimony in violation of
§ 4-1 of the Connecticut Code of Evidence because the state failed to establish the relevancy of S‘s testimony by providing a sufficient evidentiary foundation that the photographs, report, and notes relied on by S were associated with the crimes at issue in the present case was not reviewable, the defendant having failed to raise before the trial court the particular relevancy objection that he asserted on appeal; moreover, even though S‘s opinion was formulated in part by his review of a ballistic report prepared by a former employee of the state‘s forensic laboratory who was not available to testify at trial, there was no merit to the defendant‘s claim that his constitutional right to confrontation was implicated by the admission of S‘s opinion testimony because, even if the ballistic report contained testimonial hearsay, the state did not seek to introduce the ballistic report or any statement or opinion by the former employee regarding the ballistic evidence through S, who was available for cross-examination at trial regarding his own scientific conclusions and the factual basis underpinning his opinion, and, thus, the defendant was afforded a full opportunity to confront the declarant of the actual scientific conclusions admitted against him.
Argued October 12, 2017—officially released January 16, 2018
Procedural History
Substitute information charging the defendant with the crimes of felony murder, home invasion, conspiracy to commit home invasion, burglary in the first degree, conspiracy to commit burglary in the first degree, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, and assault in the first degree, brought to the Superior Court in the judicial district of Hartford, and tried to the jury before Dewey, J.; thereafter, the court denied the defendant‘s motions to preclude certain evidence; verdict and judgment of guilty; subsequently, the defendant‘s conviction of conspiracy to commit burglary in the first degree and conspiracy to commit robbery in the first degree was vacated, and the defendant appealed. Affirmed.
Kathryn W. Bare, assistant state‘s attorney, with whom, on the brief, were
Opinion
PRESCOTT, J. The defendant, Horvil F. Lebrick, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of
The defendant claims on appeal that the trial court improperly admitted into evidence (1) former testimony of a witness in violation of
The jury reasonably could have found the following facts on the basis of the evidence presented at trial. On the morning of May 6, 2010, the defendant and his twin cousins, Andrew and Andraw Moses, were driven by an unidentified fourth man in a Ford Econoline van from New York to an apartment building located at 115 Nutmeg Lane in East Hartford. One of the apartments in that building was rented by Omari Barrett, a purported drug dealer, whom the defendant and the twins intended to rob. When they arrived at the apartment building, the defendant and the twins, who were dressed in workmen‘s clothes and hard hats, exited the van, entered the building, and knocked on the door of Barrett‘s third floor apartment. When no one answered after repeated knocking, the defendant kicked open the door, and he and the twins entered the apartment. All three were armed with guns.
Barrett‘s girlfriend, Shawna Lee Hudson, was alone in the small, two bedroom apartment at that time. She did not open the door when she heard knocking, but instead telephoned Barrett. Barrett told Hudson that he was not expecting any workers and hung up the phone. Hearing someone trying to force entry, Hudson called Barrett back, and he told her to get the .357 magnum revolver that was in the apartment. Barrett ended the call and proceeded to drive to the apartment armed with a nine millimeter revolver. Hudson called him a third time as he was driving and conveyed that the men were in the apartment and that she was hiding in the bedroom closet. As Barrett arrived, he heard on the phone someone saying, “Where‘s the money? Shut the fuck up,” at which point the call ended.
Both Hudson and the twins were pronounced dead at the scene. The police collected numerous bullets and shell casings from in and around the apartment. The only firearm recovered at the scene was a .45 caliber automatic. The police also found an oil change receipt for an Econoline van. That receipt helped the police to identify the defendant as a suspect, and he subsequently was arrested and charged.
Following a jury trial, the defendant was convicted on all charges.2 He was later sentenced by the court, which imposed a total effective sentence of ninety years of incarceration. This appeal followed. Additional facts and procedural history will be set forth as necessary.
I
The defendant first claims that the court improperly admitted into evidence the former testimony of a material witness, Keisha Parks, who testified at the defendant‘s probable cause hearing in this matter. The defendant‘s arguments in support of that claim are twofold. First, he argues that Parks’ former testimony was inadmissible hearsay because it did not fall within the exception to the hearsay rule set forth in
The following additional facts are relevant to our resolution of this claim. Parks was the fiancée of Andrew Moses, one of the defendant‘s twin cousins. She reluctantly testified at the defendant‘s probable cause hearing on November 10, 2010. Among other things, she testified about a conversation that she had with the defendant in the early evening of May 6, 2010, in which he implicated himself in the events that transpired that same day at the apartment in East Hartford. The defendant was represented by counsel at the probable cause hearing, and defense counsel extensively cross-examined Parks about her testimony.
On March 5, 2014, the defendant filed a motion asking the court to preclude the state from offering Parks’ probable cause testimony as evidence at trial. The defendant argued that Parks’ former testimony was hearsay and testimonial in nature and, thus, was admissible only if the state could show that Parks was unavailable and that the defendant had had a full and fair opportunity to cross-examine her. The defendant argued that the state had the burden of demonstrating Parks’ unavailability, including
On October 16, 2014, during the trial but outside the presence of the jury, the court heard testimony from the following two witnesses concerning the state‘s effort to locate Parks for trial: Henry Hightower, a police inspector with the state‘s criminal justice division, and Frank Garguilo, an investigator with the Brooklyn District Attorney‘s Office. Hightower testified that the case file contained Parks’ last known address and phone number. Hightower called the telephone numbers listed in the case file for Parks but received no answers. He also ran Parks’ name and birthdate through several computer database searches. Specifically, he utilized the Hartford Police Department‘s in-house computer; National Crime Information Center, a national database utilized by the Connecticut State Police to run criminal background checks; and CLEAR, a database that searches publicly available data within a specified state. The CLEAR search was the only one that produced any results, listing several phone numbers and addresses in New York associated with Parks as of 2013. Hightower e-mailed the Brooklyn District Attorney‘s Office with the most current phone numbers and addresses he could find for Parks, and asked the office to send an investigator to check those addresses and to serve Parks with an interstate summons to appear for trial.
Garguilo testified that the Brooklyn District Attorney‘s Office assigned him with the task of serving the summons on Parks. He checked the addresses provided by Hightower; he visited the addresses, sometimes twice in one day, but no one answered at any of the locations. Garguilo also called the telephone numbers provided to him and left messages on some answering machines, but got no return response. Garguilo was never asked to conduct an independent investigation into Parks’ whereabouts, and he did not do so. Ultimately, neither Hightower nor Garguilo was able to locate Parks.
After hearing from the state‘s witnesses, the court heard argument from the parties. The state maintained that the efforts described by Hightower and Garguilo demonstrated that the state exercised reasonable due diligence in locating Parks to secure her testimony for trial. The defendant, on the other hand, took the position that the state‘s efforts fell far short of meeting its burden of showing the necessary good faith effort to procure Parks’ attendance. The defendant referenced our decision in State v. Wright, 107 Conn. App. 85, 943 A.2d 1159, cert. denied, 287 Conn. 914, 950 A.2d 1291 (2008), both for the proposition that the state must show substantial due diligence and as an example of what has qualified previously as a reasonable effort to locate a witness. See id., 90-92. The defendant pointed out that the state had failed to conduct any searches of social media websites, to look for driver‘s license information in New York, or to access social security information to use as an additional search criterion. The defendant also argued that no effort was made to speak to a landlord or neighbors at the addresses visited by Garguilo in order to determine whether Parks currently lived at those locations or had moved. Finally, the defendant argued that although Hightower testified that he believed that information such as housing matters, civil protective orders and child support orders involving Parks should have been discovered as part of his search of the CLEAR system, he was unable to testify precisely about what information could be obtained by a search in CLEAR. The court reserved ruling on the motion at that time.
At the court‘s request, the state later presented additional testimony from a
A
We first address the defendant‘s evidentiary claim that, because the state failed to meet its burden regarding Parks’ unavailability, the court should have deemed her former testimony inadmissible hearsay. We are not persuaded.
We begin by discussing our standard of review. In considering the propriety of a court‘s evidentiary rulings, “the appropriate standard of review is best determined, not as a strict bright line rule, but as one driven by the specific nature of the claim.” State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). “To the extent a trial court‘s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no ‘judgment call’ by the trial court, and the trial court has no discretion to admit hearsay in the absence of a provision providing for its admissibility.” Id. If, however, the court‘s decision to admit evidence is premised upon a correct view of the law, we review such decisions only for an abuse of discretion. Id.
It is undisputed in the present case that Parks’ former testimony is properly classified as hearsay and, thus, inadmissible unless it satisfies the exception in
Turning to the applicable law, the
A declarant is deemed unavailable if he is “absent from the hearing [or trial] and the proponent of his statement has been unable to procure his attendance . . . by process or other reasonable means.” (Internal quotation marks omitted.) State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980) (utilizing for state law purposes definition of unavailability contained in
In the present case, we agree with the defendant that the state‘s efforts to locate Parks were not exhaustive. That, however, is not the standard, nor will we substitute our own judgment for that of the trial court. The standard is whether the state made a good faith effort to locate Parks. Hightower, who was tasked with locating Parks for the state, attempted to find her by using her last known address and phone number found in the case file. When that was unsuccessful, he utilized Parks’ name and birthdate to search several computer databases, most notably the CLEAR system. The CLEAR system searched for available public information regarding Parks, including civil and criminal matters in New York. The CLEAR search in fact returned additional addresses and telephone numbers associated with Parks. Hightower engaged the help of the district attorney‘s office in New York to try to initiate personal contact with Parks or Parks’ mother at the addresses obtained from CLEAR and to serve a summons. The assigned investigator from that office, Garguilo, made several attempts personally to visit the addresses provided and to make telephone calls, but was unsuccessful at making any contacts.
Although the defendant provides various additional steps or alternative avenues of investigation that the state might have utilized to locate Parks, including
B
In addition to his evidentiary challenge, the defendant also argues that the admission of Parks’ former testimony violated his rights under the confrontation clause of the
“Beyond [applicable] evidentiary principles, the state‘s use of hearsay evidence against an accused in a criminal trial is [also] limited by the confrontation clause of the
It is undisputed that Parks’ testimony at the probable cause hearing was testimonial in nature and, thus, its admission at trial for the truth of the matters asserted implicated the test established in Crawford. See State v. Skakel, supra, 276 Conn. 714 (former probable cause hearing testimony “falls squarely within Crawford‘s core class of testimonial evidence“). To the extent, however, that the defendant‘s constitutional challenge relies on the same assertion made in support of his evidentiary argument, namely, that the state failed to demonstrate that Parks was unavailable for trial, we again reject it.
Although a court‘s ultimate determination as to whether a statement is precluded under Crawford raises an issue of constitutional law that is subject to plenary review; see State v. Kirby, supra, 280 Conn. 378; the factual underpinnings of such a determination are entitled to significant deference. State v. Swinton, 268 Conn. 781, 855, 847 A.2d 921 (2004). Whether a witness is unavailable is such a factual determination. See State v. Schiappa, 248 Conn. 132, 141, 728 A.2d 466 (recognizing fact-bound nature of unavailability inquiry), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). In reviewing constitutional claims, our customary deference to the trial court‘s factual finding is “tempered by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Internal quotation marks omitted.) State v. Swinton, supra, 855. Having conducted a scrupulous review of the record, we are convinced that the testimony of Hightower and Garguilo, as discussed in part I A of this opinion, constitutes substantial evidence that fully supports the trial court‘s implicit findings that the state exercised due diligence to locate Parks, and that Parks was unavailable to testify.
Moreover, the record demonstrates that the defendant had a full and fair opportunity to cross-examine Parks regarding her testimony at the probable cause hearing, defense counsel vigorously cross-examined her at that time, and Parks’ cross-examination was part of the testimony that was read back to the jury at trial. Because Parks was unavailable to testify at trial and the defendant had a full and fair opportunity to cross-examine her at the probable cause hearing regarding her testimony, his confrontation clause rights were not violated by the admission of her former testimony at trial.
II
The defendant next claims that the court improperly permitted the testimony of James Stephenson, a firearm and tool mark expert who testified at trial regarding
The following additional facts and procedural history are relevant to this claim. Gerard Petillo, a former employee of the state‘s forensic laboratory, performed various tests on the ballistic evidence collected in this case and authored a report containing his findings and analysis. Unfortunately, prior to trial, Petillo passed away and, thus, was unavailable to testify regarding his report and its contents. Stephenson also worked for the state‘s forensic laboratory at the time that Petillo created the ballistic report in this case and acted as that report‘s technical reviewer and “second signer.” Although the state informed the defendant that it did not intend to offer Petillo‘s report into evidence, it did indicate that it would offer testimony from Stephenson, who had agreed to testify on the basis of his review of the photographs and report prepared by Petillo regarding his own, independent conclusions.6
The defendant filed a motion to preclude Stephenson‘s testimony, arguing that Petillo‘s report was testimonial in nature and hearsay and, thus, that any testimony or evidence concerning that report would violate the defendant‘s constitutional rights as delineated in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). The defendant later supplemented his motion, arguing that Stephenson lacked a proper foundation to render his own opinion in this matter because he had not personally performed any of the testing or measurement of the evidence and that “[p]ermitting Stephenson to testify about the adequacy and accuracy of tests he did not perform is nothing more than a means by which to present evidence of another witness that is not available.” In support of this supplemental argument, the defendant cited to
The court held a hearing on the defendant‘s motion on October 27, 2014. At that time, the defendant renewed his objection based on the confrontation clause and raised, for the first time, an objection based on relevancy. With respect to his relevancy argument, the defendant asserted that he could not evaluate the relevancy of Stephenson‘s testimony because nothing had been proffered regarding that testimony and it was the defendant‘s understanding
The state argued that Stephenson would testify about the projectiles found at the crime scene. In particular, he would opine that the projectile found in Hudson‘s body and a shell casing recovered in her bedroom were inconsistent with the nine millimeter projectiles found in the twins’ bodies and in other areas of the crime scene, suggesting that Hudson was killed by a different nine millimeter gun, presumably one fired by the defendant. Furthermore, the state argued that Stephenson‘s conclusions, although not any different than those reached by Petillo, would be his own and based on his independent evaluation of the information available. Stephenson would be subject to cross-examination as to those conclusions. Whatever materials or information he reviewed in reaching his conclusions also would be fodder for cross-examination.
The court denied the motion to preclude on the record, indicating to defense counsel that it was going to permit Stephenson to testify. The court explained that the defendant certainly could raise by way of cross-examination that Stephenson had not examined the actual projectiles himself, suggesting that the court may have believed that the defendant‘s objections to Stephenson‘s testimony went more to the weight of the evidence to the jury than to its overall admissibility.8
Before the jury, Stephenson testified consistent with the state‘s proffer. He never referred to the contents of Petillo‘s report, including Petillo‘s conclusions. Rather, he indicated only that he had reviewed a number of reports and photographs relating to evidence submitted to the state lab in preparation for his testimony and, based on his background, training and experience, he was able from that review to formulate his own opinion.
A
We first dispose of the defendant‘s argument that the court improperly admitted Stephenson‘s testimony in violation of
“[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. [An appellate court] is not bound to consider claims of law not made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted.” (Internal quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013).
B
Finally, we turn to the defendant‘s argument that Stephenson‘s testimony was admitted in violation of the defendant‘s rights under the confrontation clause. The defendant argues that because Stephenson‘s testimony was based entirely on his review of Petillo‘s ballistic photographs and report, Petillo was, in effect, the witness who the defendant had a right to confront. We are not persuaded that Stephenson‘s testimony violated the defendant‘s constitutional rights under the confrontation clause. We have already discussed the intersection between the confrontation clause and the admissibility of hearsay statements in criminal cases in part I B of this opinion. In short, hearsay statements that are deemed testimonial in nature are admissible in a criminal prosecution only if the declarant is both unavailable for trial and the defendant has had a prior opportunity to cross-examine the declarant regarding those statements. See Crawford v. Washington, supra, 541 U.S. 68.
“Two cases decided by the United States Supreme Court after Crawford apply the confrontation clause in the specific context of scientific evidence. In Melendez-Diaz v. Massachusetts, supra, 557 U.S. 310-11, the court held that certificates signed and sworn to by state forensics analysts, which set forth the laboratory results of the drug tests of those analysts and which were admitted into evidence in lieu of live testimony from the analysts themselves, were testimonial within the meaning of Crawford. In so concluding, the court reasoned that: (1) the certificates clearly were a sworn and solemn declaration by the analysts as to the truth of the facts asserted; (2) under Massachusetts law the sole purpose of the affidavits was to provide prima facie evidence of the composition, quality, and the net weight of the analyzed substance; and (3) the court could safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose—as stated in the relevant state-law provision—was reprinted on the affidavits themselves. . . . In Bullcoming v. New Mexico, [supra, 564 U.S. 652], the court held that the confrontation clause also does not permit the prosecution to introduce a forensic laboratory report containing a testimonial statement by an analyst, certifying to the results of a blood alcohol concentration test he performed, through the in-court testimony of another scientist who did not sign the certification or perform or observe the test reported in the certification.” (Citation omitted; internal quotation marks omitted.) State v. Buckland, 313 Conn. 205, 213–14, 96 A.3d 1163 (2014), cert. denied, U.S. , 135 S. Ct. 992, 190 L. Ed. 2d 837 (2015). In short, an accused has the right “to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Bullcoming, supra, 652.
Melendez-Diaz and Bullcoming, however, addressed only the admission of statements in forensic reports either without any accompanying testimony by the analyst or scientist that prepared them or through a surrogate who lacked direct involvement in the preparation of the report. Neither directly addressed the situation now presented, in which a potentially testimonial foren-sic report is not itself offered or admitted into evidence, but rather was utilized by another expert witness to form an independent opinion. See id., 673 (Sotomayor, J., concurring) (“[w]e would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence“). Although the United States Supreme Court had an opportunity to clarify this aspect of its confrontation clause jurisprudence in Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012), that case yielded multiple opinions by the court, none of which, for the reasons we explain, is controlling here.
The issue in Williams was whether a defendant‘s confrontation clause rights were violated by the admission of testimony from a police laboratory analyst who had reviewed and compared a DNA profile prepared by an outside laboratory from vaginal swabs taken from the victim and matched it with a DNA profile in the state‘s DNA database that was produced from a sample of the defendant‘s blood in an unrelated case. Id., 56-57, 59. The United States Supreme Court upheld the trial court‘s admission of the testimony. Id., 57-58. Although a majority of the court concluded that the expert‘s testimony did not violate the confrontation clause, they did not agree as to the rationale. A plurality of four justices, Justice Alito, joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer, concluded that the confrontation clause was not violated because the outside laboratory‘s report was not used to prove the truth of the matter asserted therein and, thus, was not hearsay. Id. Alternatively, those justices concluded that the report was not testimonial in nature because it was produced before any suspect was identified, and, thus, its primary purpose was not to obtain evidence to be used against the defendant. Id., 58. A fifth justice, Justice Thomas, agreed with the plurality‘s disposition of the case, and with its alternative conclusion that the report was not testimonial in nature.10 Id., 103–104. In concluding that the report was not testimonial in nature, however, Justice Thomas focused on the report‘s lack of formality and solemnity, and specifically rejected the plurality‘s reliance on the “primary purpose test” to determine whether the report was testimonial in nature. Id., 111, 113-18. Thus, the plurality opinion and the opinion by Justice Thomas cannot be read together to provide one analytical path to employ in deciding whether a particular forensic report may be considered testimonial in nature.11
Turning to the present case, even assuming that Petillo‘s report contained testimonial hearsay,13 there simply is no merit to the defendant‘s argument that his right to confrontation was implicated in the present case by the admission of Stephenson‘s opinion testimony, despite Stephenson‘s opinion having been formulated in part by his review of Petillo‘s ballistic report. As our Supreme Court indicated in Buckland, in Crawford, Melendez-Diaz, and Bullcoming, the court‘s violation of the defendant‘s confrontation rights occurred because it admitted certain inculpatory statements that were testimonial in nature and were made against the defendant
There is no dispute that an accused has the right to confront the analyst who states a conclusion drawn from scientific evidence or certifies the results of scientific tests in a report prepared for trial because such statements qualify as testimonial statements subject to the confrontation clause as set forth in Melendez-Diaz and its progeny. To the extent, however, that, as in the present case, the defendant was afforded a full opportunity to confront the declarant of the actual scientific conclusions admitted against him, any claim of a confrontation clause violation simply is not persuasive.14
The judgment is affirmed.
In this opinion the other judges concurred.
PRESCOTT, J.
Notes
“(b) Bases of opinion testimony by experts. The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts relied on pursuant to this subsection are not substantive evidence, unless otherwise admissible as such evidence. . . .”