State v. Davis

• Decision Date: 14 May 2002
• Docket Number: 21965
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. SAMUEL DAVIS21965 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

STATE OF CONNECTICUT v SAMUEL DAVIS

No. AC 21965

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued February 15

May 14, 2002

(Appeal from Superior Court, judicial district of Hartford, Wollenberg, J.)

Alice Osedach-Powers, assistant public defender, for the appellant (defendant). Harry Weller, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Dennis O'Connor, senior assistant state's attorney, for the appellee (state).

Foti, Flynn and Daly, Js.

Flynn, J.

Opinion

The defendant, Samuel Davis, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2) and carrying a pistol or revolver without a permit in violation of General Statutes § 2935. On appeal, the defendant claims that the court improperly (1) denied his motion to suppress oral and written statements made to the police, (2) denied his motion to suppress the identification testimony of two witnesses, (3) failed to submit to the jury the findings required to enhance his sentences pursuant to General Statutes § 53-202k and imposed three separate enhancements under the statute, (4) violated his due process rights when it instructed the jurors to consider each other's feelings while deliberating and (5) gave a ''Chip Smith'' instruction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early morning hours of August 17, 1997, the defendant was a passenger in a vehicle in Hartford with two other individuals. The three men decided to rob a drug dealer and the defendant drove one of the occupants to his car so that he could retrieve his gun. The three men drove around Hartford but could not find a drug dealer to rob. At one point in their travels, the men unsuccessfully attempted to rob a man at a pay telephone near Prospect Avenue. Eventually, the defendant and one of the other men exited the car and came upon the victim, James Boland, who had just been dropped off in front of his house. Boland, a member of the neighborhood block watch program, was armed and proficient in the use of firearms. As the defendant and one of the other men approached Boland, a gunfight ensued in which Boland returned fire. Boland and the defendant both suffered gunshot wounds.

A neighbor, Lillian Ferdinand, heard the gunshots from her second floor apartment. She saw a motorcycle with two men on it stop in the vicinity of Boland's house. She heard someone say ''get lost'' or ''get the 'f' out of here,'' and the men on the motorcycle rode away. From a different vantage point, she saw Boland crouched and leaning against a fence. He was holding his chest and said to her, ''Lily, I've been shot . . . call the police.'' She called the police, went downstairs and saw Boland lose consciousness and fall to the ground.

Another neighbor, Nicholas Couloute, heard the gunshots from his third floor window. He saw the defendant lying in the driveway apron next to Boland's home. Couloute went outside and approached the defendant.

As Couloute approached, the defendant propped up on his elbow, pointed a gun at him and said ''get the f--out of here.'' Couloute retreated to his house and saw a motorcycle with two men on it approach the defendant. The defendant pointed a gun at the driver and said ''get the f--out of here.'' Couloute returned to his house and both he and his wife saw that the defendant was wounded in the leg. Both Couloutes watched as a red, four door Buick pulled up to the defendant. Two individuals helped the defendant into the backseat and drove away.

Hartford police arrived at the scene and Boland was pronounced dead at 1:32 a.m. from a gunshot wound to the chest. Hartford police informed other local police departments that a suspect in a homicide had sustained a gunshot injury and had left the scene in a red vehicle. At about 4 a.m. Middletown police informed Hartford police that an individual had arrived at Middlesex Hospital with gunshot wounds to his leg and arm. The defendant was subsequently transported to Hartford Hospital by the Life Star helicopter.

Nicolas Couloute and Thomas Staunton, the passenger on the motorcycle, were taken to Hartford Hospital to identify the defendant. Both Couloute and Staunton positively identified the defendant as the man they saw lying in the driveway area. Couloute also identified the red Buick, owned by the defendant's brother, as the vehicle that drove the defendant from the scene of the shooting. Based on the hospital identification, an arrest warrant was issued for the defendant.

The defendant was admitted to Hartford Hospital after undergoing surgery for bullet wounds to his left leg and arm. Two uniformed Hartford police officers guarded the defendant's hospital room and he was restrained to his bed by a leg shackle. After his surgery, the defendant requested to speak with the officers who had applied for the warrant for his arrest. Two detectives interviewed the defendant and he gave an oral statement inculpating himself in the victim's death. The defendant was discharged from the hospital and transported to the Hartford police station and placed under arrest. While at the police station, the defendant also gave a written statement inculpating himself.

At trial, Benjamin Brown, one of the occupants of the vehicle on the day of the murder, testified for the state. He confirmed that the defendant and the other individual left the vehicle and confronted the victim, and that the defendant was wounded in the confrontation. Brown further testified that when he helped rescue the defendant from the victim's driveway, the defendant stated that he thought he shot the victim.

Following a jury trial, the defendant was found guilty of felony murder, attempted robbery in the first degree, conspiracy to commit robbery in the first degree and carrying a pistol or revolver without a permit. The defendant was sentenced to a total effective term of 100 years in the custody of the commissioner of correction. ¹ Pursuant to § 53-202k, the court also sentenced the defendant to five additional years imprisonment, consecutive on each of the charges of felony murder, attempt to commit robbery in the first degree and conspiracy to commit robbery in the first degree for a total enhancement of fifteen years. This appeal followed.

I.

The defendant first claims that the court improperly denied his motion to suppress his oral and written statements to the police. Specifically, he claims that because of his physical and mental condition, his statements were involuntary in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. ² We do not agree.

The following additional facts are relevant to our resolution of this claim. After his surgery, the defendant told the Hartford police officer guarding his door that he wanted to speak with the officers who had obtained the warrant for his arrest. The police officer called the Hartford police station twice to inform detectives that the defendant wanted to speak with them. During the second call, the defendant got on the phone and Detective Rovella asked him if he felt well enough to talk to the police. The defendant responded that although he thought he was under medicated, he wanted Rovella to come to the hospital to speak with him.

When Rovella and another detective arrived at the hospital, they read the defendant his rights, provided him with a waiver of rights form and asked the defendant to read it aloud. The defendant initialed each section of the waiver form and signed on the bottom. The defendant also stated that he understood his rights because he had been arrested before. At the defendant's request the detectives loosened his leg shackle to make him more comfortable. After signing the waiver form, the defendant asked, ''How would somebody catch a warrant for murder if he was shot in Middletown, Connecticut?'' Rovella told the defendant that he would terminate the interview if that is all the defendant wanted to ask him. The defendant indicated that he wanted to continue and proceeded to give his statement to the detectives.

''We review a trial court's findings and conclusions regarding a motion to suppress using a well established standard. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record ....[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... ''(Internal quotation marks omitted.) State v. Miller, 67 Conn. App. 544, 547, 787 A.2d 639, cert. denied, 259 Conn. 923, 792 A.2d 855 (2002).

''Because the defendant was in custody and was properly advised of his Miranda ³ rights, our resolution of his claim requires us to determine whether he made a valid waiver of his rights. Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda].... To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the...