STATE OF CONNECTICUT v. GERJUAN RAINER TYUS
(AC 40093)
Lavine, Sheldon and Harper, Js.
Argued May 15—officially released September 11, 2018
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Syllabus
Convicted of the crime of murder in connection with the shooting death of the victim, the defendant appealed, claiming, inter alia, that the trial court abused its discretion in granting the state‘s motion to join his case for trial with that of A, who also was involved in the shooting. The defendant also had been charged with conspiracy to commit murder, but the trial court dismissed that charge prior to trial. The defendant and A had driven to a cafe, where A shot the victim. A later told E that he had shot someone. The defendant claimed, inter alia, that he would be substantially prejudiced if his case was joined with A‘s case for trial because A‘s statement to E would be аdmissible in evidence as a party admission against A. The defendant further asserted that A‘s statement to E could not be admitted under the coconspirator exception to the hearsay rule under the applicable provision (
- The trial court committed no error in granting the state‘s motion to join the defendant‘s case with A‘s case for trial, as both cases arose from the same incident, virtually all of the state‘s testimonial, documentary, physical and scientific evidence against the two defendants would have been admissible against either of them if they had been tried separately, their defenses were not antagonistic and each was the other‘s principal alibi witness; moreover, A‘s statement to E was admissible against the defendant under the coconspirator exception to the hеarsay rule, as Connecticut follows the general American rule that the coconspirator exception is applicable in cases where no formal charge of conspiracy has been made, and the defendant presented no other basis for claiming that his case should not have been joined with A‘s case for trial.
- The defendant could not prevail on his claim that the trial court violated his right to confrontation when it permitted S to testify about S‘s examination of and conclusions regarding the firearms evidence; the only inculpatory conclusions or statements regarding the firearms evidence were made by S in court, S conducted his own physical examination of and formulated his own conclusions about the evidence, S did not rely on the deceased examiner‘s report, which was not admitted into evidence, and the defendant cross-examined S extensively.
- The trial court did not err in denying the defendant‘s request for a limiting instruction to the jury regarding S‘s testimony; the defendant‘s requested instruction and the court‘s instruction were substantially similar, the court properly instructed the jury as to its role in assessing the credibility of expert witnesses and determining the weight to be given to expert testimony, and although the court declined to the defendant‘s request to highlight S‘s testimony, the court‘s instructions were correct in law, adapted to the issues and sufficient to guide the jury.
Procedural History
Substitute information charging the defendant with the crimes of murder and conspiracy to commit murder, brought to the Superior Court in the judicial district of New London, where the court, Jongbloed, J., granted the defendant‘s motion to dismiss the charge of conspiracy to commit murder and granted the state‘s motion to consolidate the case for trial with that of another defendant; thereafter, the matter was tried to the jury before A. Hadden, J.; subsequently, the court, A. Hadden, J., denied the defendant‘s motion to preclude certain evidence; verdict and judgment of guilty, from which the defendant appealed. Affirmed.
Pamela S. Nagy, assistant public defender, for the appellant (defendant).
Paul J. Narducci, senior assistant state‘s attorney, with whom, on the brief, were Michael L. Regan, state‘s attorney, and David J. Smith, senior assistant statе‘s attorney, for the appellee (state).
Opinion
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In early December, 2006, the defendant was involved in an ongoing dispute with Todd Thomas regarding a piece of jewelry that Thomas’ brother had given to the defendant. Thomas demanded that the defendant give him the jewelry, but the defendant refused to do so unless Thomas paid him $10,000.
On December 3, 2006, there was a drive-by shooting near the defendant‘s residence on Willetts Avenue in New London. In that incident, Thomas, who was a passenger in a white Lexus that was registered to his wife, fired several gunshots at the
At approximately 7 p.m. on December 22, 2006, the defendant and Armadore went to Boston to visit family and pick up three girls in a silver Chevrolet Impala that the defendant had rented on December 15, 2006. Whеn one of the three girls refused to return to Connecticut with them, the defendant and Armadore returned to Connecticut with the other two girls.
Later that evening, at approximately 11 p.m. on December 22, 2006, Thomas arrived at Ernie‘s Cafe on Bank Street in New London. Shortly after midnight on that evening, while Thomas was outside Ernie‘s smoking a cigarette, he was shot in the head. A light skinned African-American male was observed fleeing from the place where Thomas fell, running first down Bank Street toward the corner of Golden Street, then up Golden Street to a municipal parking lot, where he entered the passenger‘s side of a silver car that had been waiting there with its motor running. As soon as the flеeing man entered the waiting vehicle, it sped away. Thomas was transported to Lawrence + Memorial Hospital, where he was pronounced dead on arrival.
Later, at approximately 12:45 a.m., the defendant and Armadore arrived at Bella Notte, a nightclub in Norwich. Tracking information on records produced by their cell service providers established that their three cell phones—the defendant had two cell phones in his possession and Armadore had one—had been brought from Boston to New London at approximately 11:45 p.m. All three phones activated cell towers in New London, in the vicinity of Ernie‘s, minutes before a 911 call was received reporting the shooting outside of Ernie‘s. Thereafter, between 12:30 and 12:42 a.m., the three cell phones were taken from New London to Norwich, where they activated a cell tower in close proximity to Bella Notte.2 A few hours later, at approximately 4 a.m., the defendant dropped Armadore off at the apartment that he shared with his then girlfriend, Ritchae Ebrahimi. After arriving at the apartment, Armadore told Ebrahimi that he had shot someone that night.
One nine millimeter cartridge casing was recovered from the scene of Thomas’ December 23, 2006 shooting outside of Ernie‘s. A comparison of that cartridge casing to the five nine millimeter cartridgе casings recovered from the scene of the defendant‘s December 3, 2006 shooting on Willetts Avenue revealed that all six had been fired from the same firearm.
On November 20, 2012, the defendant and Armadore were both arrested in connection with the shooting death of Thomas on charges of murder in violation of
I
The defendant first claims that the court abused its discretion in granting the state‘s motion to join his case with Armadore‘s case for trial.4 We disagree.
On April 7, 2015, the state filed a motion, pursuant to
On April 27, 2015, the defendant filed an objection to the state‘s motion for joinder. The defendant argued that Ebrahimi‘s testimony that Armadore had told her, in the early morning hours of December 23, 2006, that he had shot someone earlier that morning was hearsay that would not be admissible in the state‘s case against him if he were tried alone and, thus, that by joining his case with thе state‘s case against Armadore, against whom the statement was admissible as a party admission, he would be substantially prejudiced. The defendant argued that the only conceivable basis on which the state could introduce Armadore‘s statement to Ebrahimi against him would be pursuant to the coconspirator exception to the hearsay rule, but because the conspiracy charge against him had been dismissed, the statement could not properly be admitted on that basis.
The court heard argument on the state‘s motion for joinder on May 18, 2015. On October 6, 2015, the court orally granted the motion, explaining its ruling as follows: “The court finds that joinder of the cases will clearly advance judicial economy in this case. Virtually all of the witnesses called in one trial would be called in the trial of the other. The physical and the scientific evidence would also be virtually identical. Moreover, joinder would not substantially prejudice the rights of the defendants. Based on the court‘s review of the statements of the defendants as set forth by the state in its memorandum, it appears that the defenses are not irreconcilable or antagonistic. Both have admitted being with the other on the night in question, and the statements of each do not implicate the other.” The court thus found that a joint trial would not be unfairly prejudicial,
On appeal, the defendant claims, as he did at trial, that the joinder of his case with Armadore‘s was improper because Ebrahimi‘s testimony about Armadore‘s admission to her that he had shot someone on the evening of Thomas’ killing was not admissible against him under the coconspirator exception to the hearsay rule, and thus that its introduction and use against him in his joint trial with Armadore caused him unfair prejudice. We are not persuaded.
“A separate trial will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. . . . [T]he phrase prejudicial to the rights of the [accused] means something more than that a joint trial will probably be less advantageous to the accused than separate trials.” (Internal quotation marks omitted.) Id., 239-40.
“[I]t is the defendant‘s burden on appeal to show that joinder was improper by proving substantial prejudice that could not be cured by the trial court‘s instructions to the jury . . . . [I]n deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.” (Citation omitted; internal quotation marks omitted.) State v. Devon D., 321 Conn. 656, 665, 138 A.3d 849 (2016).
In this case, it is undisputed that the state‘s cases against the defendant and Armadore arose from the same criminаl incident—the shooting death of Thomas—and that virtually all of the state‘s testimonial and documentary evidence at their joint trial, as well as all of its physical and scientific evidence against the two defendants, would have been admissible against either of them had they been tried separately. The defendants’ defenses to the charges against them were not antagonistic. In fact, they each served as the other‘s principal alibi witness, insisting that they had been together at Bella Notte in Norwich when Thomas was shot and killed in New London.
The defеndant‘s argument that joinder of his case and Armadore‘s for trial was improper must be rejected because the central premise on which that argument rests, which is that in the absence of a pending charge of conspiracy, Armadore‘s admission to Ebrahimi was not admissible against the defendant under the coconspirator exception to the hearsay rule, is completely unfounded as a matter of law. At all times relevant to this case, the coconspirator exception to the hearsay rule has been codified in
In light of such controlling authority, it is apparent that Connecticut follows the general American rule as to the applicability of the coconspirator exception to the hearsay rule in cases where no formal charge of conspiracy has been made. That rule has been aptly summarized as follows: “A conspiracy need not be formally charged for coconspirator statements to be admissible if a conspiracy in fact exists. Likewise, the declarant need not be charged, and acquittal of conspiracy charges does not preclude use of his or her statement. The evidence is similarly admissible in civil cases, where the conspiracy rule applies to tortfeasors acting in concert.” (Footnotes omitted.) 2 K. Broun, McCormick on Evidence (7th Ed. 2013) § 259, pp. 294-95. Accordingly, because the defendant presented no other basis for claiming that his case should not have
II
The defendant next claims that the court erred in admitting the testimony of the state‘s firearms examiner, James Stephenson, because Stephenson‘s opinions regarding the firearms evidence in this case were assertedly based on the findings and conclusions of the primary examiner of the evidence in this case, Gerald Petillo, who died before trial. The defendant claims that Stephenson did not conduct “a true independent examination” of the evidence, but, rather, in formulating his conclusions, he relied on Petillo‘s findings and conclusions. The defendant argues that because Stephenson‘s testimony was based on Petillo‘s findings and conclusions, and Petillo was unavailable for cross-examination, Petillo‘s findings and conclusions constituted testimonial hearsay, and the admission of evidence on the basis of that hearsay, specifically, Stephenson‘s testimony, violated his constitutional right to confrontation. We disagree.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that testimonial hearsay is admissible against a criminal defendant at trial only if the defendant had a prior opportunity for cross-examination and the witness is unavailable to testify at trial. Id., 68. The United States Supreme Court‘s subsequent decisions 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), extended the holding in Crawford to apply the confrontation clause in the specific context of scientific evidence.
In Melendez-Diaz, the court held that certificates signed and sworn to by state forensics analysts, which set forth laboratory results of drug tests that were done by those analysts and which were admitted into evidence in lieu of live testimony from the analysts themselves, were testimonial within the meaning of Crawford, and thus that they were improperly admitted because the defendant did not have an opportunity to cross-examine those analysts. Melendez-Diaz v. Massachusetts, supra, 557 U.S. 311.
In Bullcoming, the court held that the confrontation clause 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.” Bullcoming v. New Mexico, supra, 564 U.S. 652. 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.” Id.
Thus, in Crawford, Melendez-Diaz, and Bullcoming, the trial court‘s violation of the defendant‘s confrontation rights occurred because certain inculpatory statements were admitted that were testimonial in nature and were made against the defendant by an individual who was not subject to cross-examination. See State v. Buckland, 313 Conn. 205, 215-16, 96 A.3d 1163 (2014), cert. denied, U.S. , 135 S. Ct. 992, 190 L. Ed. 2d 837 (2015). Those circumstances are not present in this case.
Here, thе defendant and Armadore filed a joint motion in limine to preclude Stephenson‘s
The trial court concluded that “this case is in stark contrast to [Melendez-Diaz and Bullcoming]. This is not a situation in which the state attempts to elicit testimony from the deceased examiner. . . . [Stephenson] conducted his own independent examination and reached his own independent conclusions. He is clearly entitled to testify as to those findings because he is available and he made conclusions and he will be cross-examined.” On that basis, the court concluded that Stephenson‘s testimony was admissible. We agree.
Here, the only inculpatory conclusions or statements regarding the firearms evidence that were presented to the jury were made by Stephenson in court. Stephenson did not rely on Petillo‘s report in formulating his own conclusions, nor was Petillo‘s report admitted into evidence. Although Stephenson reviewed Petillo‘s report, he conducted his own physical examination of the evidence in this case and came to his own conclusions, which happened to be consistent with Petillo‘s conclusions. The defendant cross-examined Stephenson extensively. Because the defendant was afforded a full opportunity to confront Stephenson regarding his examination of, and conclusions regarding, the firearms evidence in this case, his claim that he was denied his constitutional right to confrontation is without merit.
III
The defendant also claims that the court erred in denying his request for a limiting instruction to the jury regarding Stephenson‘s testimony. Specifically, the defendant claims that a “limiting instruction was necessary given the problems with firearms identification.” In response, the state contends that the court‘s general instructiоn on expert testimony was sufficient to guide the jury in its assessment of Stephenson‘s testimony. We agree with the state.6
“The exercise of our supervisory powers is an extraordinary remedy to be invoked only when circumstances are such
“We review nonconstitutional claims of instructional error under the following standard. While а request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. . . . If a requested charge is in substance given, the [trial] court‘s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . A challenge to the validity of jury instructions presents a question of law over which this court has plenary review.” (Citation omitted; internal quotation marks omitted.) State v. Crosby, 182 Conn. App. 373, 410-11, A.3d (2018).
Here, the defendant filed a written request for a limiting instruction regarding Stephenson‘s testimony “to ensure the jury retains its fact-finding function and does not place undue weight on the conclusions expressed by the forensic firearm examiner.” The defendant asked that the jury be instructed as follows: “You are also to consider each expert witness’ general credibility in accordance with the instruction on credibility applicable to all witnesses.
“Amongst the expert witness testimony you heard in this case was the testimony of a forensic firearm examiner, James Stephenson. Mr. Stephenson expressed various opinions about certain bullet casing and projectile evidence in this case. Please understand that Mr. Stephenson‘s opinions in this case are not to be treated by you as scientifically definitive. By that I mean that the probability of his opinion being correct is for you, and you alone, to determine. Your determination of that issue should be guided by the principles that apply to weighing the testimony of any expert witness, including the witness’ general credibility.”
The trial court declined to give the instruction requested by the defendant, explaining: “In regard to the request to charge regarding expert testimony, I do believe that the charge that I have included in my proposal does, in fact, convey all of the appropriate information that‘s requested by [defense counsel] in his request to charge, and I do not intend to alter it in order to adopt the specific language that is suggested by [him].”
The court thereafter instructed the jury concerning expert testimony as follows: “In this case, certain witnesses have taken the [witness] stand, given their qualifications and testified as expert witnesses. A person is qualified to testify as an expert if he or she has special knowledge, skill, experience, training or education sufficient to qualify him or her as an expert on the subject to which the testimony relates. An expert is permitted not only tо testify to facts that he or she personally observed, but also to state an opinion about certain circumstances. This is allowed because an expert, from experience, research and
“Such testimony is presented to you to assist you in your deliberations. No such testimony is binding upon you, however, and you may disregard such testimony either in whole or in part. It is for you to consider the testimony with the other circumstances in the case, and using your best judgment, determine whether you will give any weight to it, and, if so, what weight you will give to it. The testimony is entitled to such weight as you find the expert‘s qualifications in his or her field entitle it to receive, and it must be considered by you, but it is not controlling upon your judgment.”
A comparison of the defendant‘s requested instruction with the instruction given to the jury reveals that they are substantially similar. The court properly instructed the jury as to its exclusive role in assessing the credibility of expert witnesses and determining the weight to be given to expert testimony. Although the court declined to highlight Stephenson‘s testimony specifically, as requested by the defendant, there was no substantive difference between the substance of the defendant‘s requested instruction and the instruction given by the court. Because the court‘s instructions were correct in law, adapted to the issues and sufficient to guide the jury, we cannot conclude that they were improper.
The judgment is affirmed.
In this opinion the other judges concurred.