State v. Collins, 35401.

• Decision Date: 21 January 2014
• Docket Number: No. 35401.,35401.
• Citation: 82 A.3d 1208,147 Conn.App. 584
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Rogeau R. COLLINS.

147 Conn.App. 584

82 A.3d 1208

STATE of Connecticut

v.Rogeau R. COLLINS.

No. 35401.

Appellate Court of Connecticut.

Argued Oct. 16, 2013.

Decided Jan. 21, 2014.

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

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Thomas R. Garcia, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and SHELDON and FOTI, Js.

FOTI, J.

The defendant, Rogeau R. Collins, appeals from the judgment of conviction, rendered following a jury trial, of felony murder in violation of General Statutes § 53a–54c and robbery in the first degree in violation of General Statutes § 53a–134 (a)(2). On appeal, the defendant claims that the trial court improperly: (1) excluded a statement made by another suspect in the crimes of which the defendant was convicted, (2) excluded testimony regarding the defendant's statements to police, and (3) excluded evidence of items seized from the residence of another suspect. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. In March, 2009, Robert Dixon, the victim, resided in Hartford with his girlfriend. Dixon always carried two cell phones. He used one cell phone to sell drugs and the other for personal matters. In addition, he always wore an expensive pair of Cartier glasses. He did not store the drugs he sold at his home, but kept them at a remote location secured in a safe. The key to the safe was on the same key ring as Dixon's car keys.

On March 9, 2009, Dixon exchanged several phone calls with an individual named Adrian Dean, a friend of the defendant. At approximately 9:25 p.m. that night, Dixon left his residence in his vehicle carrying both of his cell phones and wearing his Cartier glasses. Sometime thereafter, Dean joined Dixon in the vehicle. Dean then contacted the defendant, who was driving around the Hartford area in his girlfriend's vehicle. Dean arranged to meet the defendant at a location in Bloomfield and gave the defendant directions to that location. The defendant followed Dean's directions and arrived at the location at approximately the same time as Dean and Dixon. Dixon and the defendant then drove their vehicles toward a cul-de-sac at the end of the road. Dixon turned his vehicle in the cul-de-sac and came to a stop. The defendant pulled up and stopped his vehicle to the left of Dixon's vehicle. The defendant then exited his vehicle. Both the defendant and Dean, who had exited Dixon's vehicle, approached the driver's side door of Dixon's vehicle. Dixon was still sitting in the driver's seat of his vehicle. Dean, with a firearm in one of his hands, opened the driver's side door of Dixon's vehicle and shot Dixon in the head. Dean then asked the defendant to search Dixon's pockets. The defendant began patting Dixon's pockets when Dixon flinched and attempted to escape the vehicle through the passenger side door. Dixon was shot seven times as he attempted to escape and died as a result of the multiple gunshot wounds. The defendant and Dean then left the scene in the defendant's vehicle. The following morning, on March 10, 2009, Dixon was found dead by two fishermen. Dixon's two cell phones, Cartier glasses, and keys were not found at the scene. The defendant was arrested on March 24, 2009.

The state, in a long form information filed on January 11, 2011, charged the defendant with murder in violation of General Statutes § 53a–54a (a), felony murder in violation of § 53a–54c, conspiracy to commit murder in violation of General Statutes §§ 53a–48 (a) and 53a–54a (a), robbery in the first degree in violation of § 53a–134 (a)(2), and conspiracy to commit robbery in the first degree in violation of §§ 53a–48 (a) and 53a–134 (a)(2). The jury found the defendant guilty of felony murder and robbery in the first degree, but not guilty on each of the remaining charges. The court sentenced the defendant to a total effective term of forty-five years of imprisonment.¹ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly excluded testimony of an alleged statement made by Dean to Carlton Martin, Dean's former cellmate in prison, as inadmissible hearsay. Specifically, the defendant contends that Martin's testimony as to Dean's alleged statement was admissible as a statement against penal interest pursuant to § 8–6(4) of the Connecticut Code of Evidence. We disagree.

The following additional facts and procedural history are necessary to resolve this claim. During trial, defense counsel notified the court that he intended to call Martin to testify about a statement made by Dean while the two shared a prison cell. The prosecutor objected to Martin's proffered testimony as inadmissible hearsay. Defense counsel, however, argued that Martin's testimony was admissible as a statement against Dean's penal interest. As part of defense counsel's offer of proof, Martin testified outside the presence of the jury. Martin's testimony revealed that he was serving a ninety-six year term of imprisonment and had shared a prison cell with Dean between May and December, 2010. During this period, Dean and Martin watched an episode of the television show “Cold Case,” which involved betrayal between two codefendants to a crime. The show prompted a discussion about codefendants between Dean and Martin. During their discussion, Dean mentioned that he still had a codefendant on trial. He explained that he originally intended to take his case to trial, but decided to take a twenty-five year sentence plea deal after learning that the defendant had implicated him in the shooting. Dean was apparently upset, according to Martin, that the defendant gave a statement to the police: “[E]specially when [the defendant] didn't know nothing about it ... he didn't even have to go that route, all he had to do was just shut up and go all the way.” The court excluded Martin's testimony of Dean's statement on the basis that it did not constitute a statement against penal interest and, therefore, was inadmissible hearsay.

We begin by setting forth our standard of review. It is well established that “[w]e review a trial court's decision to admit [or exclude] evidence, if premised on a correct view of the law ... for an abuse of discretion.” (Internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 10–11, 1 A.3d 76 (2010). “[A]fter a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, [it is] vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought.” (Internal quotation marks omitted.) State v. Smith, 289 Conn. 598, 617–18, 960 A.2d 993 (2008). Accordingly, “[w]e will make every reasonable presumption in favor of upholding the trial's court ruling and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Snelgrove, 288 Conn. 742, 758, 954 A.2d 165 (2008). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court ... reasonably [could have] conclude[d] as it did.” (Internal quotation marks omitted.) State v. Davis, supra, at 11, 1 A.3d 76.

In the present case, the trial court excluded testimony with respect to Dean's statement because it determined that it did not fall within the statement against penal interest exception to the hearsay rule. It is hornbook law that “hearsay statements may not be admitted into evidence unless they fall within a recognized exception to the hearsay rule.” State v. Smith, supra, 289 Conn. at 618, 960 A.2d 993; see Conn.Code Evid. § 8–2. Section 8–6(4) of the Connecticut Code of Evidence embodies an exception to the hearsay rule for statements against penal interest. Section 8–6(4) applies where a hearsay statement made by an unavailable declarant was “trustworthy ... [and] at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.” Conn.Code Evid. § 8–6(4). In short, the admissibility of Dean's statement to Martin is subject to a binary inquiry: (1) whether Dean's statement to Martin was against Dean's penal interest and, if so, (2) whether the statement was sufficiently trustworthy.² See State v. Pierre, 277 Conn. 42, 67, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.Ct. 2873, 165 L.Ed.2d 904 (2006).

“As to what is against penal interest, quite obviously the essential characteristic is the exposure to risk of punishmentfor a crime .... Moreover, it is not the fact that the declaration is against interest but the awareness of that fact by the declarant which gives the statement significance.” (Citations omitted; internal quotation marks omitted.) State v. Bryant, 202 Conn. 676, 695–96, 523 A.2d 451 (1987). Our review of the evidence before the court reveals that Dean's statement was not against his penal interest because it did not subject him to criminal punishment. Prior to making the alleged statement to Martin, Dean already had pleaded guilty to conspiracy to commit robbery in the first degree, robbery in the first degree, and felony murder on February 3, 2010.³ During the plea canvass, Dean admitted that both he and the defendant had shot and robbed Dixon. Dean was subsequently sentenced to twenty-five years of imprisonment. Dean already was incarcerated when he made the alleged statement as a result of pleading guilty to the crimes that were the subject of his alleged statement. Because Dean could not have been subject to additional punishment as a result his statement to Martin, it cannot function as one against Dean's penal interest.⁴ See State v....