State Of Conn. v. Nasheed
Decision Date | 15 June 2010 |
Docket Number | No. 29661.,29661. |
Citation | 121 Conn.App. 672,997 A.2d 623 |
Court | Connecticut Court of Appeals |
Parties | STATE of Connecticutv.Sharief T. NASHEED. |
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Alice Osedach, assistant public defender, the appellant (defendant).
David J. Smith, assistant state's attorney, with whom, on the brief, was Michael L. Regan, state's attorney, for the appellee (state).
FLYNN, C.J., and LAVINE and FOTI, Js.*
The defendant, Sharief T. Nasheed,1 appeals from the judgment of conviction of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), larceny in the second degree in violation of General Statutes § 53a-123 (a)(2), assault in the third degree in violation of General Statutes § 53a-61(a)(1) and of being a persistent dangerous felony offender in violation of General Statutes (Rev. to 2007) § 53a-40(a)(1).2 On appeal, the defendant claims that (1) the trial court improperly admitted testimonial evidence in violation of his state and federal constitutional rights, (2) there was insufficient evidence to support his conviction of being a persistent dangerous felony offender, (3) General Statutes (Rev. to 2007) § 53a-40 (h) is unconstitutionally vague and (4) the prosecutor committed reversible impropriety during the state's closing argument to the jury. We disagree and, accordingly, affirm the judgment of the trial court.
The following facts and procedural history are relevant to the defendant's appeal. On November 13, 2007, the state, by way of a substitute information, charged the defendant with robbery in the first degree in violation of § 53a-134(a)(4), larceny in the second degree in violation of § 53a-123(a)(2) and assault in the third degree in violation of § 53a-61(a)(1). The charges stemmed from the defendant's alleged assault and robbery of the victim, Vinod Patel, as he left the grocery and convenience store he owned in Voluntown. The state subsequently filed apart B information, on December 10, 2007, which charged the defendant with being a persistent dangerous felony offender pursuant to § 53a-40(a)(1).
Following the jury's finding that he was guilty of the underlying robbery, larceny and assault charges, the defendant waived his right to a jury trial on the part B information and instead was tried before the court. The court found the defendant guilty of being a persistent dangerous felony offender. The court thereafter sentenced the defendant to a total effective term of forty years incarceration. This appeal followed. Additional facts will be set forth as necessary.
The defendant's first claim on appeal is that the court improperly admitted testimonial evidence in violation of the defendant's state and federal constitutional rights to confrontation.3 Specifically, he argues that testimony of Cochetta Thomas, his former probation officer, offered at the part B trial was testimonial hearsay that was inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Because we conclude that the admission of this evidence was harmless beyond a reasonable doubt, we do not reach the question of whether the evidence was testimonial hearsay that was inadmissible under Crawford.
The following additional facts are necessary for the resolution of the defendant's claim. At the part B trial, the state presented the testimony of Thomas. Thomas supervised the defendant's probation that stemmed from his 1996 robbery convictions. The defendant was determined to be in need of “level one” probation supervision, which Thomas testified is a high level of supervision, as a result of some of his criminal behavior. Specifically, the defendant used a gun in his prior robberies, threatened one of the victims and pointed the gun at another victim, who heard the gun make a clicking noise as if it were going to be fired. While incarcerated, the defendant accumulated thirty-three disciplinary tickets for offenses including assault on an officer, fighting and affiliating with a security risk group. The defendant had tested positive for drugs four times between August, 2003, and October, 2004, and was later discharged from an alternative incarceration center after he tested positive in two additional drug screenings and refused to attend group meetings. The defendant cross-examined Thomas about the source of her information. Thomas stated that she obtained much of her information from a presentence investigation report, police reports and department of correction records.
The defendant also testified at his part B trial.4 He admitted that he had six prior convictions, including three robbery convictions, and that a gun had been used in each of the robberies. The defendant confirmed that certain photographs, which were entered into evidence as exhibits, pictured him pointing a gun at a person during the commission of one of the robberies. The defendant also acknowledged that he had been in a gang. Furthermore, he admitted that he had received at least thirty disciplinary tickets while he was incarcerated. During his most recent period of incarceration, in 2007, the defendant received a class A disciplinary ticket, the highest level, for throwing books from his cell toward the officers' station. He also conceded that he had used and been arrested for possessing marijuana, in addition to using cocaine. The defendant further testified that while on probation, he had tested positive for marijuana and cocaine, and that opiates also were found in his urine. He also confirmed that he had been discharged from the drug counseling he received on probation because he failed to follow protocol.
The defendant contends that because Thomas' testimony was based on police reports, a presentence investigation report from his prior convictions, as well as department of correction records, the testimony was testimonial hearsay, which violated his constitutional rights to confrontation. The defendant did not object to the admission of such testimony at trial, however, and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., at 239-40, 567 A.2d 823. “The first two [prongs of Golding ] involve a determination of whether the claim is reviewable; the second two ... involve a determination of whether the defendant may prevail.” (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005). The record in this case is adequate for review, and the alleged violation is of a constitutional magnitude. We now consider whether the defendant may prevail on the merits of his claim.
Even if we were to assume, without deciding, that Thomas' testimony, which was based on police reports, a presentence investigation report and department of correction records, rather than firsthand knowledge violated the defendant's constitutional right to confrontation, we conclude that any error was harmless beyond a reasonable doubt.5 (Citations omitted; internal quotation marks omitted.) State v. Smith, 289 Conn. 598, 628, 960 A.2d 993 (2008).
Although Thomas was an important witness for the prosecution, nearly every detail to which she testified was corroborated by the defendant. He admitted to his past robbery convictions, use of a gun during those crimes, receipt of over thirty disciplinary tickets, use of and positive tests for marijuana and cocaine while on probation and his discharge from drug counseling. Furthermore, the defendant cross-examined Thomas, and the court was fully aware that much of her testimony was not based on firsthand knowledge.
Most importantly, in rendering its decision, the court stated that it found the defendant's testimony to be most relevant to its determination of whether he was a persistent dangerous felony offender. The court proceeded to review the defendant's testimony before concluding: ...
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