State v. Kelsey

• Decision Date: 31 January 2006
• Docket Number: No. 26346.,26346.
• Citation: 93 Conn.App. 408,889 A.2d 855
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Eric KELSEY.

Page 855

889 A.2d 855

93 Conn.App. 408

STATE of Connecticut v. Eric KELSEY.

No. 26346.

Appellate Court of Connecticut.

Argued December 6, 2005.

Decided January 31, 2006.

COPYRIGHT MATERIAL OMITTED

Avery S. Chapman, special public defender, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brian Preleski, senior assistant state's attorney, for the appellee (state).

LAVERY, C.J., and DRANGINIS and McLACHLAN, Js.

McLACHLAN, J.

The defendant, Eric Kelsey, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48(a) and 53a-134(a)(3).¹ On appeal, the defendant claims that the trial court improperly (1) admitted certain out-of-court statements into evidence at trial under the "adoptive admissions" exception to the hearsay rule and (2) denied his motion for a mistrial on the basis of the state's failure to produce exculpatory or potentially exculpatory evidence. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 15, 2001, the victim, Omar Celik, worked at the Miss Washington Diner located on Washington Street in New Britain. The diner was operated by his brother, Guven Celik. The victim lived in an apartment building next to the diner with a roommate, Erol Aydin, who also worked at the diner.

Ashley Chicerchia, fifteen years old at the time, used drugs and paid for them by engaging in prostitution. She knew the victim because he was a regular customer of hers. On the morning of August 15, 2001, during the victim's shift, Chicerchia, Joseph Cupe, Rob Swain and Kevin Taylor had breakfast at the diner. While in the diner, Chicerchia noticed Juan Morales walking by and signaled to him to come into the diner. The victim saw all of them together in the dining area. At some point, the victim told Chicerchia that Aydin wanted to be her customer and to meet him at the apartment at 11 a.m. Shortly after Morales arrived, they all left the diner, and Chicerchia walked to the victim's apartment to have sexual relations with Aydin.

While in the apartment with Aydin, Chicerchia noticed that he had a substantial sum of money in his wallet. At Aydin's request, she planned on returning to the victim's apartment at 9 p.m. Sometime between the first visit and the planned second visit to the victim's apartment, Chicerchia met with the defendant, Morales and Hector Fermaint, and they discussed how the four of them would rob Aydin of his money when Chicerchia returned to the victim's apartment later that evening. The defendant asked Chicerchia how much money was in the apartment. At about 9:20 p.m., they set off for the victim's apartment and arrived approximately ten minutes later. All three males were wearing sweatshirts or sweaters with hoods. After their arrival, Chicerchia gained entrance to the secured building by ringing the buzzer of a woman she knew who lived in that building. Chicerchia often used the woman's apartment to meet her customers and paid the woman with drugs. When Chicerchia was inside the building, she went to a side door and let the defendant, Morales and Fermaint into the building. She then knocked on the sliding glass door of the victim's apartment, and the victim opened the door and let her in. Aydin was not home. Chicerchia asked the victim to leave the door open, saying that it was too warm in the apartment.

After Chicerchia sat on the couch, the defendant, Morales and Fermaint entered the victim's apartment through the open sliding glass door. They all had their hoods up and were wearing masks. The three males physically attacked the victim. The defendant had a knife, approximately seven or eight inches in length. Morales saw the defendant hit the victim on the top of his head with the handle of the knife. The victim was screaming, and Chicerchia saw the defendant stab him in the abdomen. They all ran out of the apartment and went back to the defendant's house. At his house, the defendant wiped blood off the blade of his knife onto his T-shirt. He then took off the T-shirt and put it into a plastic bag.

The victim was taken to a hospital. His brother arrived shortly before the victim was taken into surgery and asked what had happened. The victim responded that he had been sleeping when two or three people attacked him. He indicated that their faces were covered, but that they ate meals at the diner. The victim's brother testified that the victim told him that "[t]hey had the morning meal and they left." The victim died during the surgical procedure. The cause of death was a stab wound to the chest and abdomen with injuries to internal organs.

Chicerchia was questioned by the police and arrested on August 16, 2001. That same day, Morales met with the defendant and Fermaint at Edwin Otero's house. Morales, in the presence of the defendant, told Otero that "they did something crazy." The defendant and Morales said they went into a studio to rob someone and that the door was open. The defendant said that the victim tried to scream, so he stabbed him. At Otero's house, the defendant took an army type knife in a leather holder and wrapped it in a newspaper. He then put the knife in the microwave oven.

Morales turned himself in to the police. The defendant and Fermaint knew that the police were looking for them. They went to the home of Ivan Matias. In the presence of the defendant, Fermaint told Matias that he, Morales and the defendant went to an apartment to rob a man, that the man started to yell and cry, and that they stabbed him. Fermaint and the defendant asked Matias if he would let them stay at the house. Matias let them stay in the basement for three days. On the second day, the defendant handed Matias a package and indicated that it contained a knife, and the defendant and Fermaint asked Matias to "get rid of it." Matias, without looking inside the package, threw it into the pond where he went fishing.

Michael Baden, a sergeant with the New Britain police department, took part in the investigation of the homicide. In connection with the investigation, he interviewed Cupe sometime in August, 2001, and seized two knives and a piece of stained cardboard in his possession. There was no indication that any of the seized items were involved in the homicide. The knives were kitchen knives, one a steak knife and the other a paring knife with a two inch blade; they were not army type knives. The items were placed in the detective bureau evidence room, but could not be located anytime thereafter.

The defendant was arrested and charged with murder, felony murder and conspiracy to commit robbery in the first degree. The jury found the defendant guilty of felony murder and conspiracy to commit robbery in the first degree. The defendant filed motions for a judgment of acquittal and for a new trial, which were denied by the court.

I

The defendant claims that the court improperly admitted Matias' testimony as to statements made by Fermaint in the presence of the defendant the day after the homicide. Although the court would not admit the statements under the coconspirator exception to the hearsay rule, having concluded that the conspiracy had ended, the court did permit their admission under the adoptive admissions exception to the hearsay rule. The defendant claims that because the statements were not admissible under the coconspirator exception, they should not have been admitted as adoptive admissions because the silence of the defendant was insufficient to attribute Fermaint's statements to him. We disagree.

"[T]he question of whether a third party statement may be used against the defendant as an adoptive admission by silence is an evidentiary issue ...." (Citations omitted.) State v. Schiappa, 248 Conn. 132, 164, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S.Ct. 152, 145 L.Ed.2d 129 (1999). "It is axiomatic that [t]he trial court's ruling on the admissibility of evidence is entitled to great deference.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion." (Internal quotation marks omitted.) Margolin v. Kleban & Samor, P.C., 275 Conn. 765, 779-80, 882 A.2d 653 (2005).

"Generally, statements made within the accused's hearing, which are relevant and material, to which he makes no reply, may be given in evidence as indicative of conduct on his part, when the circumstances show that he heard, understood and comprehended the statement, and the facts are known to him and he had the opportunity to speak and the circumstances naturally called for a reply from him." (Internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 535, 498 A.2d 76 (1985). The statements at issue were those of Fermaint as recounted during the testimony of Matias. Matias testified that in August, 2001, after the homicide, Fermaint and the defendant came to his house. In the presence of the defendant, Fermaint told Matias that Chicerchia had indicated that a man had money and that he, Morales and the defendant went there to rob him; that when they went to the apartment to rob him, the man started crying and yelling, and that they then stabbed him; that Morales turned himself in to the police and Chicerchia was arrested; and that the police were looking for him and the defendant. At that point, Matias indicated that both Fermaint and the defendant had asked Matias if they could stay at his house.

Clearly, the statements were relevant and material to the defendant's involvement in the homicide. If the jury believed Matias, the defendant was part of the three person conversation, even though he did not state that he stabbed the victim. Although he made no reply, he had the opportunity to speak...