State v. Armadore

Decision Date23 March 2021
Docket NumberSC 20248
CourtSupreme Court of Connecticut
PartiesSTATE OF CONNECTICUT v. DARIUS ARMADORE

Argued October 20, 2020

Procedural History

Substitute information charging the defendant with the crime of murder brought to the Superior Court in the judicial district of New London and tried to the jury before A. Hadden J.; verdict and judgment of guilty, from which the defendant appealed to this court; thereafter, the case was transferred to the Appellate Court, which denied the defendant's motions for permission to file a late motion for rectification and to file a supplemental brief subsequently, the Appellate Court, Lavine Sheldon and Harper, Js., affirmed the judgment of the trial court, and the defendant, on the granting of certification, appealed to this court. Affirmed.

Emily Graner Sexton, assigned counsel, with whom were Julia K. Conlin, assigned counsel, and, on the brief, Matthew C. Eagan, assigned counsel, James P. Sexton, assigned counsel, Megan L. Wade, assigned counsel, and John R. Weikart, assigned counsel, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Paul J. Narducci, supervisory assistant state's attorney, for the appellee (state).

McDonald, D'Auria, Kahn, Ecker, Keller and Vertefeuille, Js.

OPINION

D'AURIA, J.

In this certified appeal, we are again required to examine the effect of the United States Supreme Court's recent decision in Carpenter v. United States, U.S., 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), on a pending case. In Carpenter, the court held that, under the fourth amendment to the United States constitution, the government generally must obtain a warrant supported by probable cause before acquiring historical cell site location information (CSLI), which provides a comprehensive chronicle of a cell phone user's past physical movements.

The defendant, Darius Armadore, appeals from the Appellate Court's judgment affirming his conviction of murder, as either a principal or as an accessory, in violation of General Statutes §§ 53a-8 and 53a-54a (a). Specifically, he claims that the Appellate Court abused its discretion by denying him permission to file a supplemental brief to raise a new claim pursuant to Carpenter, which was released while his appeal was pending before that court. He argues that the rule in Carpenter applies retroactively to pending cases, and, thus, his failure to raise this claim before the trial court or in his initial brief to the Appellate Court did not bar review. Additionally, he claims that the Appellate Court incorrectly determined that his hearsay claim regarding the testimony of a key state's witness, Eduardo Guilbert, was unpreserved.

We agree with the defendant that our courts should liberally grant motions seeking to file supplemental briefs to raise claims premised on new constitutional rules announced during the pendency of a case and that the Appellate Court should have granted his motion in the present case. Nevertheless, we conclude that any error was harmless because the defendant's Carpenter claim fails under the fourth prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Additionally, although we agree with the defendant that the Appellate Court incorrectly determined that he did not preserve his hearsay claim regarding Guilbert's testimony, we agree with the state that the trial court properly admitted the testimony as non hear say because it was offered to show its effect on the hearer and that, alternatively, any error was harmless. Accordingly, we affirm the Appellate Court's judgment.

The following facts, which the jury reasonably could have found from the evidence admitted at trial, and procedural history are relevant to our review of the defendant's claims. In December, 2006, Gerjuan Rainer Tyus was involved in an ongoing dispute with the victim, Todd Thomas, regarding a necklace that the victim's brother had given to Tyus but wanted returned. Tyus refused to return the necklace unless the victim paid him $10, 000.

During the course of this dispute, on December 3, 2006, the victim, who was a passenger in a white Lexus registered to his wife, fired several gunshots with a .38 caliber firearm at Tyus, who was outside his apartment on Willetts Avenue in New London, striking him in the leg and the back. Tyus countered by firing five gunshots with a nine millimeter firearm at the victim. Five nine millimeter cartridge casings were recovered from the scene of the shooting. Later that day, Tyus was treated for his wounds at a hospital. The defendant, a close friend of Tyus, whom he considered to be a brother, later went to the hospital to receive news of Tyus' condition.[1] Although the defendant and Tyus were aware that the victim was the shooter, neither relayed this information to the police.

Following the Willetts Avenue shooting, on December 15, 2006, Tyus rented a silver-colored Chevrolet Impala. It was this vehicle that Tyus and the defendant used to travel to Boston, Massachusetts, at approximately 7 p.m. on December 22, 2006. While in Boston, the defendant and Tyus visited family and then picked up three women they wanted to bring back to Connecticut in the Impala. When one of the women refused to return with them, the defendant and Tyus returned to Connecticut with the other two women.

Later that evening, at approximately 11 p.m., the victim arrived at Ernie's Cafe´ on Bank Street in New London. Shortly after midnight, while the victim stood outside the front entrance of Ernie's Cafe´ smoking a cigarette, he was shot in the head. A light-skinned African American male wearing a hooded sweatshirt was observed fleeing the scene of the crime to a municipal parking lot, where he entered the passenger side of a silver-colored vehicle that had been waiting there with its motor running. The vehicle immediately sped away. The victim was transported to Lawrence + Memorial Hospital in New London, where he was pronounced dead upon arrival.

After the shooting, the defendant and Tyus arrived at Bella Notte, a nightclub in Norwich, approximately twelve and one-half miles from Ernie's Cafe´. At trial, the defendant asserted an alibi defense, testifying that he and Tyus were at Bella Notte at the time the victim was shot. Tracking information contained in records produced by their cell service providers, which were admitted into evidence without objection at trial, established that their three cell phones-Tyus had two cell phones in his possession and the defendant had one- had activated cell towers near New London minutes prior to the shooting. One of Tyus' cell phones activated a cell tower in New London near Ernie's Cafe´ approximately eight times in the minutes before and after a 911 call was received reporting the shooting. Additionally, the cell phones activated cell towers north of New

London, toward Norwich, from approximately 12:42 to 12:44 a.m. and activated a cell tower farther north near Bella Notte from approximately 1:12 to 1:55 a.m. A few hours later, Tyus dropped the defendant off at the apartment the defendant shared with his then girlfriend, Ritchae Ebrahimi. At trial, Ebrahimi testified that, after the defendant arrived at the apartment, they argued over his having been with other women that night, and that he told her he had shot someone that night.

In addition to the historical CSLI, Tyus and a man matching the description of the defendant were seen entering Bella Notte by Guilbert while Guilbert was in the nightclub's bar area. Guilbert testified that the two men arrived after he received a phone call informing him that the victim had been shot. Guilbert was not sure of the precise time those events occurred, initially telling the police that it was at about 11 p.m., which would have been before the shooting occurred at Ernie's Cafe´. See part II of this opinion.

Additionally, the police recovered one nine millimeter cartridge casing from the scene of the December 23, 2006 shooting. Ballistics evidence showed that this cartridge casing had been fired from the same firearm as the five nine millimeter cartridge casings that were recovered from the scene of the December 3, 2006 shooting on Willetts Avenue.

In November, 2012, the defendant and Tyus were arrested and charged with murder in violation of § 53a-54a.[2] The state thereafter filed long form informations charging the defendant and Tyus each with murder, both as a principal and as an accessory, in violation of §§ 53a-8 and 53a-54a (a). The state subsequently filed a motion to join the cases for trial, which the trial court granted over the objections of the defendant and Tyus. The defendant and Tyus were tried together before a single jury, which returned guilty verdicts as to both men without specifying whether the verdicts were based on principal or accessorial liability. The court sentenced the defendant to a term of sixty years of incarceration.

The defendant appealed from his conviction to this court, which transferred the appeal to the Appellate Court. See General Statutes § 51-199 (c); Practice Book § 65-1.[3] Before the Appellate Court, the defendant claimed that ‘‘(1) . . . the trial court abused its discretion in granting the state's motion to join his case with the case of his codefendant . . . Tyus; (2) he was deprived of his constitutional right to confrontation when the state's firearms examiner was permitted to testify regarding the findings of another firearms examiner, who was deceased and thus unavailable to testify at trial; (3) . . . he was deprived of a fair trial when he was identified for the first time in court by Cindalee...

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