State v. Foreman

• Citation: 288 Conn. 684,954 A.2d 135
• Decision Date: 16 September 2008
• Docket Number: No. 17697.,17697.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Clifton FOREMAN.

954 A.2d 135

288 Conn. 684

STATE of Connecticut v. Clifton FOREMAN.

No. 17697.

Supreme Court of Connecticut.

Argued May 21, 2008.

Decided September 16, 2008.

Deborah G. Stevenson, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, was Michael Dearington, state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and SCHALLER, Js.

NORCOTT, J.

The defendant, Clifton Foreman, appeals¹ from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the first degree as a principal and accessory in violation of General Statutes §§ 53a-70(a)(1) and 53a-8(a), and one count each of kidnapping in the first degree with a firearm as a principal or accessory in violation of General Statutes §§ 53a-92a(a) and 53a-8(a), conspiracy to commit kidnapping in the first degree with a firearm in violation of General Statutes §§ 53a-48(a) and 53a-92a(a), attempted assault in the first degree as a principal or accessory in violation of General Statutes §§ 53a-49(a)(1), 53a-59(a)(1) and 53a-8(a), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59(a)(1), and robbery in the first degree as a principal or accessory in violation of General Statutes §§ 53a-134(a)(4) and 53a-8(a). On appeal, the defendant claims that the trial court improperly: (1) denied his motion to suppress certain DNA evidence in violation of, inter alia, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988); (2) granted the state's motion to compel the defendant to provide a second DNA sample; and (3) admitted computer generated fingerprint and DNA evidence without an adequate foundation, because, inter alia, the expert witnesses did not have sufficient knowledge about the applicable software. We disagree with each claim, and, accordingly, we affirm the judgment of conviction.

The record reveals the following relevant facts, which the jury reasonably could have found, and the procedural history of this case. At approximately 12:30 a.m. on September 26, 2003, the victim² was driving home in the city of West Haven when she stopped her vehicle at a red stoplight at the intersection of First Avenue and Spring Street. The defendant, who was driving a stolen car in which Alazaron Sargeant, Nathaniel Roberts and Earl Banks were passengers, stopped alongside the victim's vehicle. The defendant and Sargeant, both of whom were wearing ski masks, exited the vehicle and ordered the victim out of her car at gunpoint. The victim complied, and then, at the direction of the defendant, climbed into the trunk of her vehicle. After closing the lid of the trunk, the defendant drove off in the victim's vehicle with Banks, while Sargeant and Roberts followed in the stolen car.

The defendant and Sargeant eventually stopped the stolen vehicles in an isolated, wooded section of Northrop Road in the town of Woodbridge. At gunpoint, the victim was then ordered to exit the trunk, walk into the woods and remove her clothing. Although the victim attempted to comply, the defendant and Sargeant ripped the remainder of her clothing off, and each then had forced oral and vaginal sex with the victim. After the multiple sexual assaults, Sargeant tried to snap the victim's neck by violently twisting it to the left. The victim fell to the ground, and the defendant then repeatedly struck the back of her head with a sharp rock. The victim successfully feigned death, and the defendant, Sargeant, Banks and Roberts then fled the scene.

The defendant subsequently was arrested and charged with four counts of sexual assault in the first degree as a principal and accessory in violation of §§ 53a-70(a)(1) and 53a-8(a), and one count each of kidnapping in the first degree with a firearm as a principal or accessory in violation of §§ 53a-92a(a) and 53a-8(a), conspiracy to commit kidnapping in the first degree with a firearm in violation of §§ 53a-48(a) and 53a-92a(a), attempted assault in the first degree as a principal or accessory in violation of §§ 53a-49(a)(1), 53a-59(a)(1) and 53a-8(a), conspiracy to commit assault in the first degree in violation of §§ 53a-48(a) and 53a-59(a)(1), and robbery in the first degree as a principal or accessory in violation of §§ 53a-134(a)(4) and 53a-8(a).

Before trial, the defendant moved to suppress the DNA evidence that the police had obtained from him during the interview at the police department on July 16, 2004. On the basis of the testimony adduced during the suppression hearing, the trial court reasonably could have found the following additional facts. On July 16, 2004, four detectives from the New Haven police department went to the defendant's home to inquire about a series of shootings that had occurred in the early summer of 2004 (shootings).³ The defendant voluntarily accompanied the detectives to the police department. At the time the defendant went to the police department, the police were not aware of his involvement in the crimes of which he was convicted in this case, and the shootings were, at that point, their sole focus of inquiry. Once at the police department, the defendant was taken to an interview room, told that he was not under arrest, and informed of his Miranda rights. The defendant waived his Miranda rights, in writing, and then proceeded to confess to his involvement in the shootings.

While the police were questioning the defendant, they were also separately questioning another suspect in the shootings. The other suspect provided information that led the police to believe that the defendant may have been involved in the crimes at issue in this case. On the basis of that information, the police sought the defendant's consent to obtain a DNA sample. The defendant provided written consent, and Detective Michael Quinn of the police department took a DNA sample from the defendant via an oral swab.

The defendant claimed at the suppression hearing that the DNA evidence should be suppressed because: (1) he was subjected to a custodial interrogation and his three requests for counsel were denied in violation of Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602; and (2) the police improperly prevented an attorney from speaking with him in violation of State v. Stoddard, supra, 206 Conn. 157, 537 A.2d 446. After the six day suppression hearing, the trial court issued an oral memorandum of decision denying the motion on the basis of its conclusions that: (1) the defendant expressly understood and validly waived his right to counsel; (2) the defendant had not requested the assistance of counsel; and (3) there was no Stoddard violation because the attorney's efforts to contact the defendant were not diligent, timely or pertinent.

A subsequent jury trial resulted in a guilty verdict on all counts, and the trial court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective sentence of eighty-five years imprisonment. This direct appeal followed. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the trial court improperly: (1) denied his motion to suppress the DNA evidence in violation of, inter alia, Miranda and Stoddard; (2) granted the state's motion to compel him to provide a second DNA sample; and (3) admitted computer generated fingerprint and DNA evidence without an adequate foundation.⁴ We address each claim in turn.

I

We first address the defendant's claim that the trial court improperly denied his motion to suppress the DNA evidence. Specifically, the defendant claims, inter alia, that the trial court's denial was improper because: (1) the DNA evidence was the product of an illegal warrantless arrest that was not supported by probable cause — in violation of the fourth amendment to the United States constitution and article first, § 7, of the state constitution; (2) he failed to make a voluntary, knowing and intelligent waiver of his rights under Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602; and (3) the police improperly denied an attorney access to him in violation of State v. Stoddard, supra, 206 Conn. 157, 537 A.2d 446. The defendant also claims that the trial court's factual findings, which supported its conclusion to deny the motion to suppress, were clearly erroneous, and that the misconduct of the police and the improprieties of the trial court resulted in structural error. We disagree with each of the defendant's claims.

"As an initial matter, we note that [o]ur standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [When] the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the court's memorandum of decision...." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 514, 903 A.2d 169 (2006). "Because a trial court's determination of the validity of a ... search [or seizure] implicates a defendant's constitutional rights, however, we engage in a careful examination of the record to ensure that the court's decision was supported by substantial evidence.... However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses." (Citation omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 43, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). We now examine, in turn, each of the defendant's arguments proffered in support of his...