State v. Andino

• Decision Date: 20 June 2017
• Docket Number: AC 38475
• Citation: 173 Conn.App. 851,162 A.3d 736
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Victor ANDINO

173 Conn.App. 851

162 A.3d 736

STATE of Connecticut

v.Victor ANDINO

AC 38475

Appellate Court of Connecticut.

Argued February 14, 2017

Officially released June 20, 2017

Daniel J. Krisch, Hartford, assigned counsel, for the appellant (defendant).

Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Brett J. Salafia, senior assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Keller and Prescott, Js.

KELLER, J.

The defendant, Victor Andino, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes § 53a–59 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a–217 (a) (1). Additionally, following a plea of nolo contendere, the trial court found the defendant guilty of being a persistent serious felony offender under General Statutes § 53a–40 (c).¹ The defendant claims (1) that the court improperly denied his motion to suppress an inculpatory oral statement that he provided to the police and (2) that the evidence did not support his conviction of criminal possession of a firearm. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On September 29, 2010, the defendant and the victim,² Jorge David Aponte, were arguing with one another in the parking lot of an apartment complex on South Whiting Street in New Britain. The argument between the two men, portions of which were overheard and witnessed by residents who lived nearby,³ was related to the victim's illegal drug selling activities in the neighborhood. At one point during the argument, the victim was holding a large stick and the defendant was holding what appeared to be a machete or a knife. The defendant threatened to shoot the victim, and, ultimately, he shot the victim in his left shoulder before fleeing the scene. Gunshots were overheard by multiple witnesses around the time of the defendant's argument with the victim and in the vicinity of where the defendant and the victim were arguing.

The victim drove away from the scene and received medical treatment for his injury, which was not life threatening, at Hartford Hospital.

A bystander notified the police that a shooting had occurred and, following an investigation of the shooting, New Britain police obtained an arrest warrant for the defendant. On October 18, 2011, the police located the defendant and executed the arrest warrant. The defendant waived his Miranda rights⁴ and, during an interview conducted by Jonathan Webster, then a detective with the New Britain Police Department, the defendant stated that, during an argument with the victim related to money and the sale of drugs in the neighborhood, he shot the victim. The defendant stated that he was unhappy that the victim was selling drugs in an area that he and others controlled. He stated that he shot the victim after the victim charged at him with a large stick. Because the defendant did not want others to know that he had provided a statement to the police, however, he declined to provide the police with a written statement. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court improperly denied his motion to suppress the oral statement that he provided to the police. We disagree.

The following additional facts are relevant to the present claim. By written motion filed on August 6, 2014, the defendant moved to suppress "any and all statements made by [him] ... including, but not limited to, statements made regarding his alleged involvement in a shooting in September, 2010." In relevant part, the defendant alleged in the motion to suppress that he had been subjected to custodial interrogation by Webster and that "Webster never notified [him] ... of his constitutional rights as required by Miranda v. Arizona , [384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ]." On September 2, 2014, the court held a hearing on the motion during which it received documentary evidence and heard testimony from both Webster and the defendant.

In relevant part, Webster testified that, on October 18, 2011, he and another detective observed the defendant enter a building in New Britain. After the defendant exited the building, the defendant laid down in the backseat of a truck. The police stopped the truck as it was being driven away. The police placed the defendant under arrest and transported him to the police department. The defendant was taken to an interview room in the detective bureau, where he met with Webster. During the interview, the defendant was restrained in leg shackles. Webster testified that he began his conversation with the defendant by advising him of his Miranda rights. He testified that, initially, his advisement was verbal in nature, but that he subsequently had the defendant complete a Miranda rights advisement form. Webster testified that he communicated with the defendant in English, and that he wrote the defendant's name, address, date of birth, educational information, and information about the defendant's reading and writing skills on the form. Webster read each right listed on the Miranda rights advisement form to the defendant, and the defendant wrote his initials next to each listed right.

Webster testified that, thereafter, he asked the defendant if he was willing to speak to him. Webster testified that the defendant stated that he was willing to talk to him, and that, in Webster's presence, the defendant signed the bottom portion of the Miranda rights advisement form, thereby indicating that he had been advised of, understood, and freely waived his Miranda rights.⁵ Webster testified that he did not write the defendant's initials on the form or sign the defendant's name on the form. Webster testified, however, that he signed his own name on the form.⁶ The court admitted the signed Miranda rights advisement form into evidence.

During the interview, in Webster's presence, the defendant also signed a uniform arrest report that, among other things, reflected personal information about the defendant as well as the charges being brought against him. Webster signed the uniform arrest report, as well. The court admitted the signed report into evidence.

Webster testified further that, after the defendant waived his Miranda rights, the defendant told him that on the day of the shooting he had gotten into an argument with the victim about drug sales and money. According to Webster, the defendant related to him that the argument escalated, the victim was armed with a machete and an item that the defendant described as a long board and, ultimately, the defendant shot the victim. During the interview, the defendant was provided with food and water, and he was permitted to use the bathroom. At the conclusion of the interview, the defendant stated that the information that he provided was true and accurate.

At the suppression hearing, the defendant testified that his Miranda rights were not explained to him and that he did not initial or sign the Miranda rights advisement form or the uniform arrest report. The defendant testified that he did not sign any paperwork at the police department on October 19, 2011. The court admitted into evidence two examples of the defendant's signature. One example came in the form of an identification card that he claimed to have signed five years prior to his testimony. The other example came in the form of a blank sheet of paper that he signed during his testimony at the suppression hearing. The defendant testified that, in relation to the events at issue, he was not questioned until he arrived at the police headquarters and that nobody had advised him of his Miranda rights. Moreover, the defendant testified that he did not make the statements that Webster attributed to him, and that he had not stated that he shot anyone. Instead, the defendant testified that, while he was in police custody, he merely asked Webster why he had been arrested.

During argument on the motion to suppress, defense counsel argued that the evidence demonstrated that the police had not advised the defendant of his Miranda rights, either orally or in writing, prior to his interrogation. Defense counsel argued that the defendant's signatures on the Miranda rights advisement form and the uniform arrest report, both of which, Webster testified, had been signed by the defendant in his presence, did not appear to match the defendant's signature on his identification card, the signature that he provided during his testimony, or the defendant's signatures that appeared on two other uniform arrest reports that were introduced into evidence by the state. Defense counsel argued that the defendant had not been advised of his rights as Webster testified, the defendant had not been afforded an opportunity to sign the documents at issue, and the documents at issue had been "signed by somebody else." Defense counsel argued that the signatures appeared to have been written by the same person, namely, Webster, and that this had been done because the police had an interest in filling up "this hole" in their case against the defendant.

The prosecutor argued that Webster credibly testified at the suppression hearing that he had advised the defendant of his Miranda rights, that the Miranda rights advisement form memorialized that the defendant was so advised, and that the form reflected that the defendant waived his Miranda rights. The court asked the prosecutor to comment on defense counsel's argument that the signatures on the forms at issue in the present case were dissimilar to the other examples of the defendant's signature that were in evidence. The prosecutor acknowledged that the signatures appeared to be "somewhat different," but argued that, in light of Webster's testimony, any dissimilarity did not support a conclusion that the...