State v. Lebrick

• Decision Date: 28 January 2020
• Docket Number: SC 20083
• Parties: STATE of Connecticut v. Horvil F. LEBRICK
• Court: Connecticut Supreme Court

334 Conn. 492

223 A.3d 333

STATE of Connecticut

v.Horvil F. LEBRICK

SC 20083

Supreme Court of Connecticut.

Argued January 23, 2019

Officially released January 28, 2020

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, John F. Fahey and Robert Diaz, senior assistant state's attorneys, and Allen M. Even, certified legal intern, for the appellee (state).

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins and Ecker, Js.

ECKER, J.

The defendant, Horvil F. Lebrick, claims in this certified appeal that the Appellate Court improperly affirmed his judgment of conviction because the trial testimony of two witnesses should have been excluded from evidence under the Connecticut Code of Evidence and the confrontation clause of the sixth amendment to the United States constitution.¹ Specifically, the defendant contends that (1) the state failed to establish adequately that a nonappearing witness named Keisha Parks was unavailable to testify at trial, and, therefore, her former testimony improperly was admitted under § 8-6(1) of the Connecticut Code of Evidence² and in violation of the confrontation clause, and (2) the testimony of James Stephenson, the state's expert witness on firearm and tool mark identification, was predicated on inadmissible hearsay and, therefore, improperly was admitted in violation of the confrontation clause. We agree with the defendant that the admission of Parks' former testimony violated his constitutional right of confrontation, but we disagree that the admission of Stephenson's testimony was unconstitutional. We therefore reverse the judgment of the Appellate Court and remand the case for a new trial.

The jury reasonably could have found the following facts. During the early morning hours of May 6, 2010, the defendant and his cousins, twin brothers Andrew and Andraw Moses, traveled from New York to East Hartford in a Ford Econoline van driven by a fourth, unidentified man. At approximately 8 a.m., the van arrived at an apartment complex located at 115 Nutmeg Avenue, where a purported drug dealer, Omari Barrett, rented an apartment on the third floor. The plan was to rob Barrett of money and/or drugs. In order to gain entry into the apartment, the Moses twins dressed as workmen and armed themselves with guns. The defendant accompanied the Moses twins to Barrett's apartment, where they knocked on the door multiple times. When no one answered, the defendant kicked the door open, and the three men entered the apartment.

The victim, Shawna Lee Hudson, was alone in the apartment at the time. The victim telephoned Barrett when the three men initially knocked on the door, and Barrett informed her that he had not requested any maintenance at the apartment. Shortly thereafter, the victim called Barrett a second time and told him that the three men were "breaking down the door to get in the apartment." Barrett informed the victim that he was on his way and instructed her to arm herself with a .357 magnum revolver located inside the apartment. Soon thereafter, the victim called Barrett a third time and whispered to him that the men were inside the apartment and that she was hiding in a closet. At this point, Barrett had arrived at the apartment complex and was on his way up to the third floor. Barrett could hear a voice in the background on the open phone line of someone saying, " ‘[w]here's the money? Shut the fuck up,’ " and then the phone line went dead.

Barrett, who was armed with a nine millimeter revolver, arrived outside the apartment and noticed that the door was ajar and looked "like somebody [had] kicked it in ...." After entering the apartment, Barrett encountered the Moses twins, whom he fatally shot. Barrett then called out to the victim to ask how many people were left in the apartment, and she responded that there was one more. Barrett and the defendant then exchanged gunfire, and Barrett was shot twice—once in the leg and once in the arm. Barrett retreated from the apartment to an alcove down the hallway by the elevators. He then heard a single gunshot and saw someone exit the apartment and flee in the opposite direction down the hallway. Barrett returned to the apartment, where he found the victim, who had been shot fatally once in the chest. Additional facts will be set forth as necessary.

Following a jury trial, the defendant was convicted of felony murder in violation of General Statutes (Rev. to 2009) § 53a-54c, home invasion in violation of General Statutes §§ 53a-8(a) and 53a-100aa(a)(2), conspiracy to commit home invasion in violation of General Statutes §§ 53a-48(a) and 53a-100aa(a)(2), burglary in the first degree in violation of General Statutes §§ 53a-8(a) and 53a-101(a)(1), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-134(a)(2), and assault in the first degree in violation of General Statutes §§ 53a-8(a) and 53a-59(a)(5).³ The trial court sentenced the defendant to a total effective sentence of ninety years of imprisonment.

The Appellate Court affirmed the defendant's judgment of conviction. See State v. Lebrick , 179 Conn. App. 221, 246, 178 A.3d 1064 (2018). As relevant to the issues before us, the Appellate Court determined that the trial court had not abused its discretion in admitting the former testimony of Parks, a witness who did not appear at trial but who reluctantly testified at the defendant's probable cause hearing, because the state had made a diligent and good faith effort to secure her attendance at the defendant's trial. Id., at 229–36, 178 A.3d 1064. The Appellate Court held, for this reason, that Parks' former testimony was admissible under both § 8-6(1) of the Connecticut Code of Evidence and the confrontation clause. Id., at 233, 236, 178 A.3d 1064. The Appellate Court also determined that the admission of Stephenson's expert testimony did not violate the defendant's sixth amendment right of confrontation because, even if Stephenson had relied on testimonial hearsay in formulating his expert opinion, he was "fully available for cross-examination at trial regarding his own scientific conclusions and the factual basis underpinning his opinion."⁴ Id., at 245, 178 A.3d 1064. This certified appeal followed.⁵

I

The defendant's first claim of error involves the admissibility of the former testimony of Parks, who was Andrew Moses' fiancée at the time of the underlying events. The following additional facts and procedural history are relevant to our review of this claim.

After hearing a rumor on May 6, 2010, that the Moses twins had been killed in Connecticut, Parks contacted the East Hartford Police Department to find out if the rumor was true. Two days later, Parks provided the East Hartford police with a written statement, and, after the defendant's arrest, she reluctantly testified at his probable cause hearing pursuant to a court order.

Parks testified to the following facts at the defendant's probable cause hearing. On the evening of May 5, 2010, Parks observed the Moses twins enter the defendant's Ford Econoline van in Brooklyn.⁶ The next day, after learning that the twins had been killed, Parks and Andraw Moses' wife spent several hours searching for the defendant. The defendant finally contacted Parks and Andraw Moses' wife, and they then met the defendant in Brooklyn. The defendant explained at the meeting that he had traveled to Connecticut with the twins and the unidentified driver of the van to commit a robbery. After knocking on an apartment door and receiving no answer, the defendant kicked the door open and found a girl inside the apartment with a gun. The defendant grabbed the gun from the girl and made his way to another room of the apartment. The defendant heard gunshots while he was in the other room, and one of the Moses twins went to investigate. The defendant heard another shot, and the other twin followed his brother to investigate. The defendant then heard another shot, followed by the shooter's asking the girl how many people were left in the apartment. The defendant proceeded to shoot his way out of the apartment using the gun he had taken from the girl, observing the twins' bodies lying on the floor as he left. He then exited the building, told the driver of the van that the twins were dead, and fled to New York.

In late August or early September of 2014,⁷ around the time that jury selection in the defendant's trial commenced, the state began to search for Parks in order to secure her in-court testimony at the defendant's trial. Emory L. Hightower, a police inspector with the state's criminal justice division in the Hartford state's attorney's office, first attempted to contact Parks at her last known address and phone number. When that effort proved unsuccessful, Hightower conducted an electronic search for Parks in the Hartford Police Department's local in-house computer database. The search yielded no results. Hightower next searched the National Crime Information Center (NCIC) database, a national database administered by the Federal Bureau of Investigation and utilized by law enforcement to search for an individual's prior criminal records. After discovering no criminal record for Parks in the NCIC database, Hightower used a search engine called CLEAR, operated by the Thomson Reuters Corporation, which aggregates publicly available data. Through the CLEAR search, Hightower obtained two addresses for Parks in New York and several phone numbers. Hightower called the phone numbers, but two were not in service, and one was not receiving phone calls.

An interstate summons was prepared to compel Parks' attendance at the defendant's trial. Hightower e-mailed the interstate summons to the Kings County District Attorney's Office and requested service on Parks. The same e-mail included a memorandum containing the addresses and phone numbers that Hightower had...