State v. Boyd, (SC 17719) (Conn. 4/27/2010)

• Decision Date: 27 April 2010
• Docket Number: (SC 17719).
• Parties: STATE OF CONNECTICUT, <I>v.</I> SOLOMON BOYD.
• Court: Connecticut Supreme Court

Page 1

STATE OF CONNECTICUT,v.

SOLOMON BOYD.

(SC 17719).

Supreme Court of Connecticut.

Argued October 21, 2009.

Officially Released April 27, 2010.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Raheem L. Mullins, deputy assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Paul Ferencek, senior assistant state's attorney, for the appellee (state).

Rogers, C. J., and Norcott, Palmer, Vertefeuille, Zarella and McLachlan, Js.

Opinion

ROGERS, C. J.

After a jury trial, the defendant, Solomon Boyd, was convicted of murder in violation of General Statutes § 53a-54a. The trial court rendered judgment in accordance with the verdict, and the defendant now appeals¹ from the judgment of conviction. The defendant claims that the trial court improperly: (1) denied his motion to suppress certain evidence on the ground that it was seized in violation of his rights under the fourth amendment to the United States constitution² and article first, § 7, of the Connecticut constitution;³ (2) admitted evidence of uncharged misconduct; (3) admitted evidence that the defendant had invoked his right to remain silent in violation of his rights under the fifth amendment to the United States constitution;⁴ and (4) failed to give a special credibility instruction on the testimony of an informing witness. We conclude that, although the defendant had a legitimate expectation of privacy in his cell phone, the automobile exception to the constitutional requirement for a search warrant applied under New York law. We also reject the defendant's other claims. Accordingly, we affirm the judgment of conviction.

The jury reasonably could have found the following facts. In 2001 and early 2002, the defendant lived in Mamaroneck, New York, with his girlfriend, Melissa Gagliardi. The defendant was a drug dealer. Carlos Barradas, the victim, spent a large amount of time at the defendant's apartment, where he helped the defendant with his drug business. In return, the defendant provided drugs to the victim. The victim also purchased drugs from the defendant on an almost daily basis.

In early January, 2002, a gold bracelet belonging to the defendant was missing from the apartment. The defendant believed that the victim had stolen the bracelet and became upset with him. On the night of January, 16, 2002, at approximately 10 p.m., the defendant told Gagliardi that he and the victim were going to go to Mount Vernon, New York, to buy drugs. The defendant and the victim took the victim's car. Instead of driving to Mount Vernon, however, they drove to Norwalk. They arrived at an area near the intersection of Merritt Street and Chestnut Street at approximately 11:48 p.m. The defendant then shot the victim with a .45 caliber semiautomatic gun. The victim exited from the car and tried to flee, but a fence blocked his way. The defendant, who also had exited the car, shot the victim again. The victim then entered and exited the car again in an attempt to escape from the defendant. The defendant ultimately shot the victim several times in front of the car, where the victim fell. Police arrived at the scene within minutes of the shooting and found the victim still alive. They took him to Norwalk Hospital where he was pronounced dead at 12:15 a.m.

Later that morning, when the defendant arrived back at his apartment in Mamaroneck, he was wearing a woman's sweatshirt. Gagliardi asked him where he had acquired it, and the defendant told her that he had needed to change his clothes in order to get rid of " `evidence' " or " `gun's powder.' " At some point, Gagliardi asked the defendant where the victim was and the defendant told her that he had killed him by shooting him multiple times. He also indicated that his cousin, Kevin Thomas, had been present during the murder.

In March, 2004, the defendant was arrested and charged with murder. After a trial, the jury found him guilty of murder and the trial court rendered judgment in accordance with the verdict. This appeal followed.

I

We first address the defendant's claim that the trial court improperly denied his motion to suppress certain evidence that he claims was seized without a valid search warrant in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution. We conclude that the evidence was admissible under the automobile exception to the constitutional requirement for a search warrant.

The following undisputed facts are relevant to this claim. In January and February, 2002, the Mamaroneck police department was investigating the defendant for suspected drug sales. On February 1, 2002, Joseph Comblo, a detective with the Mamaroneck police department, executed a search warrant in connection with the investigation. Both the warrant and the affidavit attached to the warrant were captioned: "FOR THE PREMISES AND PERSONS OF: SOLOMON BOYD, 627 MAMARONECK AVENUE, MAMARONECK, NEW YORK, APARTMENT # 3 . . . AND FOR THE PERSON OF SOLOMON BOYD AND ANY PERSON THEREIN." The body of the search warrant stated: "You are therefore commanded . . . to make an immediate search of 627 Mamaroneck Ave. . . Mamaroneck, New York. . . for crack cocaine and cocaine, narcotics paraphernalia, including but not limited to plastic bags, records of ownership or use of this location, including trace evidence, records of narcotics transactions, any safe and its contents, computers, computer programs, computer data, and [United States] [c]urrency used to purchase crack cocaine and cocaine . . . ."

Because the Mamaroneck police were aware that the Norwalk police department was investigating the defendant in connection with the victim's murder, Robert Holland, a sergeant with the Mamaroneck police department, invited Arthur Weisgerber and Charles Chrzanowski, detectives with the Norwalk police department, to accompany the Mamaroneck police during the search of the defendant's apartment. The Mamaroneck police department executed the warrant at approximately 7:45 p.m. on February 8, 2002. Weisgerber and Chrzanowski arrived at the apartment after the search had begun. They did not participate in the search, but remained in the kitchen of the apartment.⁵ They attended the search in the hope that, while the Mamaroneck police were searching for drugs, they would find in plain view evidence related to the victim's murder, such as a gun, ammunition or bloody clothes. The Mamaroneck police found crack cocaine, drug paraphernalia, a scale, a razor blade and a computer in the apartment. Gagliardi was present during the search and the police arrested her on drug charges. The police found no evidence related to the murder.

During the search, Holland received a radio call that other Mamaroneck police officers had stopped the defendant nearby as he was returning to the apartment in his car. Holland and Weisgerber went to the location where the defendant had been stopped. By the time they arrived, the other police officers already had arrested the defendant for drug offenses on the basis of the evidence seized at the apartment. Holland and Weisgerber noticed a cell phone on the passenger seat of the car that the defendant had been driving.

Later that night, Weisgerber and Chrzanowski went to the Mamaroneck police station to interview Gagliardi about the murder. While they were waiting to interview Gagliardi, Andy Genovese, a detective with the Mamaroneck police department, was at his desk nearby, scrolling through the numbers on the cell phone that had been taken from the defendant's car.⁶ Genovese announced several telephone numbers that he had found on the cell phone, including the cell phone's subscriber number. Chrzanowski recorded the number in his notes.

Thereafter, Weisgerber prepared and executed a search warrant on Sprint Spectrum L.P., the wireless telecommunications company that serviced the cell phone for the telephone records related to the cell phone. The cell phone records revealed that the account for the cell phone was in the defendant's name. The records also showed that, in the hour before the victim's murder, calls from and to the cell phone had been routed through a series of telecommunications towers progressing in a northeasterly direction from Mamaroneck to Norwalk. A number of cell phone calls that had been made and received minutes before the murder had been routed through a tower located approximately five blocks north of the murder scene. The cell phone records further showed that, beginning minutes after the murder, a number of calls from and to the cell phone had been routed through a series of towers progressing in a southwesterly direction from Norwalk to Mamaroneck.

In addition, the cell phone records revealed that, shortly after the murder, several calls originating with the cell phone had been made to the telephone of Sally Williams, who is Gagliardi's mother. Gagliardi's cousin, Joanne Gentile, who was one of the defendant's drug customers, was living with Williams at that time. Gentile testified at trial that the defendant had called her in a panicked state on the night of the murder and had asked her to go to his apartment to tell Gagliardi to call him or to answer his telephone calls. Gagliardi testified that, after Gentile came to the apartment, she answered the telephone and the defendant asked her to call his sister to ask her to provide him with an alibi. The defendant also asked Gagliardi to say that he had been at his sister's house getting his hair done or that he had been at home with Gagliardi. Gagliardi refused and hung up the telephone.

Before trial, the defendant filed a motion to suppress the cell phone records and any other evidence to which the police had been led as the result of seizing the cell phone. At the suppression hearing, Holland testified that, although the warrant did not specifically authorize the police to seize cell phones, the...