State v. Jackson, 35294.

• Decision Date: 20 May 2014
• Docket Number: No. 35294.,35294.
• Citation: 150 Conn.App. 323,90 A.3d 1031
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Tirea JACKSON.

150 Conn.App. 323

90 A.3d 1031

STATE of Connecticut

v.Tirea JACKSON.

No. 35294.

Appellate Court of Connecticut.

Argued Nov. 22, 2013.

Decided May 20, 2014.

John L. Cordani, Jr., assigned counsel, for the appellant (defendant).

Robin S. Schwartz, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Margaret E. Kelley, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and KELLER and MIHALAKOS, Js.

KELLER J.

The defendant, Tirea Jackson, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a–49 and 53a–54a (a), and assault in the first degree in violation of General Statutes § 53a–59 (a)(1). Also, the defendant appeals from the judgment of conviction, rendered after a court trial, of criminal possession of a firearm in violation of General Statutes § 53a–217 (a). The defendant claims that (1) the trial court improperly admitted into evidence a letter that had not been authenticated; (2) the court improperly admitted certain uncharged misconduct evidence, namely, testimony that he had sold illegal drugs to the victim prior to the events at issue; (3) evidence of statements made by an anonymous witness violated his confrontation clause rights; (4) the court improperly admitted evidence related to recorded prison telephone conversations of his in violation of his confrontation clause rights; and (5) the prosecutor deprived him of his right to due process by introducing evidence that he invoked his right to remain silent after he had been advised of his Miranda rights.¹ We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 20, 2011, at or about 4 p.m., the victim, Maria Guadalupe Upchurch, was in Bridgeport to visit with her stepfather, who lived in Marina Village. While walking to her stepfather's residence, the victim was approached by the defendant and his girlfriend, Shaneeka Durham. The victim knew the defendant and Durham well. On several occasions, beginning in the summer of 2011, the victim bought illegal drugs from the defendant, including heroin and marijuana. She considered the defendant a friend. Approximately one week earlier, the victim purchased marijuana from the defendant. The defendant and Durham accused the victim of paying for the marijuana with a counterfeit $10 bill. To assuage the defendant, the victim gave him a $10 bill that she had in her pocket. She then proceeded to walk away.

As the victim walked away, she felt something behind her. She turned to find the defendant pointing a shotgun, which was wrapped in a garbage bag, at her head. The defendant smirked at the victim and said, “I'm going to shoot you, [b]itch, you're dead....” The victim put her hand up, and the defendant discharged the shotgun in close proximity to her head, causing substantial injury to the right side of her face, her right eye, and her right hand. The victim fell to the ground. The defendant stood above her, raised his shotgun, and said that if she “said anything” she was “gonna be done.” While the victim lay injured on the ground, the defendant walked away from the scene. Thereafter, the victim crawled to her stepfather's residence, where she summoned police and medical assistance. The victim told the police that the defendant, whom she identified as “Real,” was the shooter.

After the jury returned its finding of guilt with regard to the charges of attempt to commit murder and assault in the first degree, the court addressed the criminal possession of a firearm count. Referring to the evidence presented during the trial as well as evidence related to the defendant's criminal history, the court found that the defendant, a convicted felon, possessed a firearm at the time of the commission of the crime. Accordingly, the court found the defendant guilty of criminal possession of a firearm as charged. Following a sentencing hearing, the court imposed a total effective sentence of twenty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

First, we address the defendant's claim that the court improperly admitted into evidence a letter that had not been authenticated. We disagree.

The following additional facts are relevant to this claim. During its case-in-chief, the state presented testimony from Unique Lopez. Lopez testified that, in 2011, she lived in Marina Village in Bridgeport and that she was familiar with a person she identified as “Rell.” She said she knew “Rell” by way of his former girlfriend, Latoya Murray. During Lopez' testimony, she identified the defendant as the man she knew as “Rell.”

Lopez testified that, approximately one week following the shooting involving the victim, she spoke with the police. Specifically, she testified that she was asked by the police about her familiarity with “Rell,” and that, among other things, she indicated to the police that she knew him by way of his former girlfriend; that he “used to hang out at Marina Village;” and that he had given her his telephone number, which she shared with the police.

Thereafter, the prosecutor asked Lopez whether she had received any letters from the defendant. Lopez replied that she had received four such letters. Lopez testified that she read the first letter before discarding it, but that she had marked the other letters with the notation, “return to sender.” Outside of the presence of the jury, the state marked a handwritten letter and an envelope with handwritten markings as exhibits for identification purposes.

The letter is dated October 5, 2012, and states in relevant part: “Pay for me [.] Dear Unique[.] Unique what's going on with u and Rod. Well I went to court and I started picking out jury and I think they want u show up in court but don't go ok you can't get in trouble for that. Ur name was on my paper and they trying to make you come and go on the stand. They don't have no evidence on me at all[.] The day I go to court 10–11–12 and maybe Monday is unreason ur [wrapped] in this[.] U told the investigat[ors] I be with her baby dad. Don't be [scared] ever things going be ok it going be over real soon if see my baby mom stay low because her mom said some bulshit to investigat[ors] when they call her house in Stamford[.] Im trying come home please do this keep it real[.] Tell A–V I said whatup I hope the kid[s] doing good[.] Tell Latoya bulshitting ass when I come home I'm not fucking with u and u shited on me and we friends[.] Tell her what kill me make me stronger[.] I know she got a man that fuck up you did not write. You did not write the 10 month I was here at all. Everybody gave me there ass to kiss. Know I can shake the dirt off my shoulder LOL one love ps Hope see you soon/Booker[.]” The envelope is addressed to Lopez and the return address is from “Tirea Jackson 259678# , 1106 North Ave., BCC Bpt Ct 06604 CONN. 37A1–10 Cell.” The envelope bears a postmark stamp from Stamford on October 4, 2012.

By way of an offer of proof, which occurred on the first day of trial, October 10, 2012, Lopez testified that she had received these items at her home within the preceding few days. She informed an inspector in the prosecutor's office that she had received a letter from the defendant, and provided the letter and the envelope to the prosecutor. She testified that the letter arrived in a sealed envelope and that she believed the letter was from “Rell.” Lopez testified that she did not know a person by the name of “Booker,” and that she did not know if any of the letters at issue, despite bearing the defendant's return address, truly were from the defendant because she “[was] just going by what the envelope says.”

The defendant's attorney argued that the evidence did not demonstrate that either the letter or the envelope originated from the defendant. The defendant's attorney noted that the letter was not signed by the defendant and that Lopez was unable to do more than speculate as to its origin. The defendant's attorney argued, as well, that the letter was “highly prejudicial” to the defense. The prosecutor asserted that the envelope bore the defendant's name and return address; the letter was mailed to Lopez' home; the letter was dated October 5, 2012, and referred to the status of the present trial, specifically, jury selection; and the letter referred to Lopez' anticipated appearance at trial. On the basis of the foregoing, the prosecutor argued that the issue of whether the defendant had authored the letter was a question of fact for the jury.

After hearing the offer of proof, the court agreed with the state. The court stated: “We have the return address on the envelope, we have the address on the envelope ... addressed to the witness [who] received it sealed, and opened it and brought it in to [the prosecutor's office] and said this is a letter I received. The letter refers to the jury selection process. You know, I think there's sufficient indicia of authorship, so the objection is overruled. It's up to the jury to decide in the end.”

During her subsequent testimony before the jury, Lopez stated that she recognized the letter and the envelope as having been from the defendant, that she had received them three or four days earlier and that, after contacting the prosecutor's office, she brought them with her to court that day. Lopez was asked how she knew that the letter was from the defendant. She testified that it was mailed to her home, in a sealed envelope, and that the envelope bore the defendant's name and return address. The letter was published to the jury. The state relied on the letter as evidence that the defendant had contacted Lopez and had asked her not to testify.²

The defendant does not claim that the letter was not relevant to an issue before the jury. Rather, the defendant claims that the letter was not authenticated because there was...