State v. Guerrera

• Decision Date: 19 July 2016
• Docket Number: No. 37171 , No. 38312.,37171
• Citation: 167 Conn.App. 74,142 A.3d 447
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael Anthony GUERRERA.

167 Conn.App. 74

142 A.3d 447

STATE of Connecticut

v.Michael Anthony GUERRERA.

No. 37171

No. 38312.

Appellate Court of Connecticut.

Argued Feb. 2, 2016.

Decided July 19, 2016.

John L. Cordani, Jr., with whom, on the brief, was Damian K. Gunningsmith, New Haven, for the appellant in both cases and the cross appellee in AC 38312 (defendant).

Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and John H. Malone, supervisory assistant state's attorney, for the appellee in both cases and the cross appellant in AC 38312 (state).

GRUENDEL, BEACH and FLYNN, Js.^*

BEACH

, J.

This decision concerns two appeals, AC 37171 and AC 38312, and a cross appeal in AC 38312 arising from the same underlying criminal case. In a single, consolidated trial, a jury found the defendant, Michael Guerrera, guilty of assault in the first degree in violation of General Statutes §§ 53a–8 (a)

and 53a–59 (a)(1), conspiracy to commit the assault in the first degree in violation of General Statutes §§ 53a–48 (a) and 53a–59 (a)(1), and tampering with physical evidence in violation of General Statutes § 53a–155 (a)(1). The jury found the defendant not guilty of unlawful restraint in the first degree and conspiracy to commit murder. The jury was unable to reach a verdict as to the remaining charges of murder, conspiracy to commit kidnapping in the first degree, felony murder, and kidnapping in the first degree. The defendant moved to dismiss these remaining charges, and the court denied in part and granted in part the motion.

In AC 37171, the defendant claims that the trial court erred by (1) concluding that the state had no Brady¹ obligation to review or to disclose the contents of telephone recordings preserved by the Department of Correction (department) at the state's request; (2) excluding from evidence a recording of a coparticipant's jail visit with his mother; (3) refusing to grant an evidentiary hearing on a possible violation of a sequestration order; and (4) concluding that there was sufficient evidence to sustain the defendant's conviction of tampering with physical evidence. In AC 38312, the defendant claims that the state is collaterally estopped under the double jeopardy clause from retrying him on the charges of murder, kidnapping, and felony murder with the predicate felony of kidnapping. In its cross appeal, the state claims that the court improperly dismissed the charge of conspiracy to commit kidnapping in the first degree. We do not agree with any of the defendant's claims in either of his appeals, nor do we agree with the state's claim in its cross appeal. Accordingly, we affirm the judgments of the trial court.

As an initial matter, the underlying factual and procedural histories of these appeals warrant a thorough recitation and review. The jury reasonably could have found the following facts. The defendant and his brother, Dennis Guerrera, grew up in separate homes, but at some point Dennis Guerrera moved in with the defendant; Naomi Ball, their biological mother; and the defendant's stepfather at their home in Waterbury. Dennis Guerrera had grown up in Bristol, and he eventually introduced the defendant to his friends in the area. These friends included Sarah Boilard and Michael Boilard, as well as Jonathan Wilcox, and Dylan Sherman, the victim. Sarah Boilard had dated both the victim and Dennis Guerrera at different times.

The events surrounding the victim's death began on February 21, 2011. That afternoon, Sarah Boilard and Michael Boilard picked up the defendant and Dennis Guerrera from their apartment in Waterbury, went to a Blockbuster store and then brought the brothers to the apartment the Boilards shared with Michael Boilard's children at 56 Ingraham Place in Bristol. At one point during the evening, the victim called Sarah Boilard and asked if he and his cousin, Josh Desrosier, could come over to the Boilard residence. Sarah Boilard and Dennis Guerrera went to meet the victim and Desrosier at Fast Freddies, a Bristol gas station. The four returned to the Boilards' apartment.

Sarah Boilard, the victim, and Desrosier went into Sarah Boilard's bedroom while Michael Boilard, the defendant, and Dennis Guerrera watched a movie. At one point during the movie, the defendant went into Sarah Boilard's bedroom to retrieve a pair of Michael Boilard's pants, which contained Michael Boilard's wallet, keys, and cigarettes. The defendant gave Michael Boilard his pants. The victim and Desrosier left the apartment shortly thereafter. The defendant and Dennis Guerrera spent the night at the apartment.

The following morning, Michael Boilard claimed that he had discovered that $750 in cash was missing from his wallet. When the defendant and Dennis Guerrera woke up, Michael Boilard demanded that they empty their pockets so that he could see whether either of them had the missing money. Both the defendant and Dennis Guerrera refused to let him search their pockets. Michael Boilard approached the defendant and attempted to frisk him. The defendant replied, “Are you serious? [The victim] was probably the one who stole it, not [me].” Id. Michael Boilard told the brothers “to do what they have to do, just get the money back.”

The defendant, Dennis Guerrera, and Sarah Boilard then spent approximately one hour walking around Bristol in search of the victim. At about noon, Sarah Boilard called Michael Boilard to pick up her, and the defendant and Dennis Guerrera. He brought the three of them back to the Boilards' apartment. Michael Boilard left for work at about 3 o'clock in the afternoon. After Michael Boilard left, Sarah Boilard called the victim. She asked him if he had taken the money, and the victim replied that he had not.

For the next several hours, the defendant, Dennis Guerrera, and Sarah Boilard went to various stores, watched a movie, listened to music, and ate dinner. They were not looking for the victim at that time, but after dinner Dennis Guerrera told Sarah Boilard that he wanted to try to call the victim again. She refused to let him use her cell phone. The defendant used the cell phone he shared with Dennis Guerrera to call the victim himself. The defendant argued with the victim and threatened to “kick his ass.” After five minutes of arguing, the defendant asked the victim to come over to talk about the situation and figure out what had happened to the money. The defendant assured the victim that if he came over, “there won't be any problems.”

While waiting for the victim to arrive, Dennis Guerrera grabbed a wooden baseball bat from the bedroom. He then told Sarah Boilard to “get out,” and she went outside of her apartment building and paced around. She was afraid that the defendant and Dennis Guerrera planned to fight the victim. The victim arrived and went into the Boilards' apartment. A neighbor outside of the apartment overheard arguing, glass breaking, and a man's voice screaming from inside the apartment. The neighbor specifically heard a man yell, “[d]ude, please stop!” The defendant testified that Dennis Guerrera had struck the victim in the head with the baseball bat numerous times. The defendant claimed that he had been injured from attempting to stop Dennis Guerrera from attacking the victim. The state police later obtained blood from inside the apartment matching the victim's and the defendant's DNA.

The defendant, Dennis Guerrera and the victim exited the apartment. The defendant ordered Sarah Boilard to “clean up the mess.” When she refused, the defendant called her an “ungrateful spoiled bitch.” He also told her that if she talked to the police, and he “gets put away or locked up, that when he gets out that [Sarah Boilard was] next.” As Sarah Boilard started to walk away, she overheard the victim say, “I want to go home, please let me go home, I won't tell anybody.” When she finally returned to the apartment, Sarah Boilard observed that the wooden baseball bat had been placed back in the bedroom closet and was stained with blood.

She also noticed that her brother's aluminum baseball bat was missing.

Meanwhile, Wilcox received a telephone call from either the defendant or Dennis Guerrera. The caller—Wilcox could not discern which brother had placed the call—stated that they had fought with the victim at the Boilards' apartment and requested that Wilcox pick them up at Fast Freddies. When Wilcox arrived at Fast Freddies, Dennis Guerrera got in the front seat and the defendant and the victim sat in the back of the car. The defendant held an aluminum baseball bat. The victim asked Wilcox to take him to the hospital, but the defendant told him to be quiet. Wilcox suggested that they take the victim to an area referred to as Buttermilk Falls in Terryville, and the defendant and Dennis Guerrera agreed.

Upon arriving at the trailhead to Buttermilk Falls, Wilcox stopped the car. Dennis Guerrera and the defendant, who was still holding the baseball bat, retreated into the woods with the victim. Several minutes later, the defendant and Dennis Guerrera emerged from the woods without the victim. Getting back into the car, the defendant told Wilcox that he and Dennis Guerrera had used the baseball bat to hit the victim several times and that “blood was going everywhere....” The victim began twitching, and the defendant and Dennis Guerrera resumed beating the victim with the baseball bat until the victim stopped moving completely. Wilcox observed that both Dennis Guerrera and the defendant had blood on their hands and clothing.

On the morning of February 23, 2011, the victim's body was discovered by a hiker in Buttermilk Falls. A state medical examiner concluded that the victim's death had been caused by blunt traumatic head injury

. On February 24, 2011, the police arrested the defendant, Dennis Guerrera, Sarah Boilard, Michael Boilard, and Wilcox for their participation in the various crimes perpetrated against the victim.

The defendant told the police,...