State v. Otto

• Decision Date: 05 June 2012
• Docket Number: No. 18353.,18353.
• Citation: 305 Conn. 51,43 A.3d 629
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth John OTTO, Sr.

305 Conn. 51

43 A.3d 629

STATE of Connecticut

v.Kenneth John OTTO, Sr.

No. 18353.

Supreme Court of Connecticut.

Argued Jan. 13, 2012.

Decided June 5, 2012.

Adele V. Patterson, senior assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.

NORCOTT, J.

Following a jury trial, the defendant, Kenneth John Otto, Sr., was convicted of the murder of the victim, Shamaia Smith, in violation of General Statutes § 53a–54a,¹ and two counts of tampering with evidence in violation of General Statutes § 53a–155 (a)(1),² in connection with his subsequent attempts to conceal the crime. The defendant appeals ³ from the trial court's judgment of conviction of murder, claiming that: (1) there was insufficient evidence to prove the element of specific intent necessary to support the murder conviction; and (2) the prosecutor's argument that the jury should find the defendant guilty of murder because he destroyed evidence that would have been probative of his intent deprived him of a fair trial by impermissibly shifting to him the burden of proof regarding intent. Guided by, inter alia, State v. Sivri, 231 Conn. 115, 646 A.2d 169 (1994), we conclude that the jury reasonably could have inferred the defendant's specific intent from the evidence presented at trial, and we further conclude that the statements made by the prosecutor in closing arguments did not improperly shift the burden of proof. Accordingly, we affirm the judgment of the trial court.

The record reveals the following facts that the jury reasonably could have found, and procedural history. The victim, who was last seen on the afternoon of March 14, 2007, worked as a dancer at Kahoots, an exotic dance club located in Vernon, where the defendant was a frequent patron up until the time that the victim disappeared.⁴ Beginning several weeks prior to the victim's disappearance, the defendant and the victim initiated a personal relationship outside of her work at Kahoots. The defendant and the victim spoke on the telephone several times in February, 2007, and, on one occasion prior to her disappearance, on March 9, 2007, the defendant gave the victim a ride to various places in his truck.⁵ On the afternoonof March 14, 2007, the victim left her parents' house, where she and her boyfriend lived, indicating to her boyfriend that she was going to work and meeting up with a client who owned a large parcel of property and drove a black truck. The victim did not show up for work that evening, nor did she return home that night, and no one from her family had any further contact with her after she left the house that afternoon.

The victim's family, after becoming concerned about the lack of contact from her, filed a missing persons report with the East Hartford police department on March 16, 2007. Upon investigation of the missing persons report, the police identified the defendant as an individual who potentially had information regarding the then missing victim, on the basis of a voice mail that the defendant had left for the victim prior to her disappearance, and a telephone call that the defendant had made to the victim's house telephone number after her disappearance. First, the victim's family discovered a voice mail on the victim's cell phone from “Kenny” that was left on the morning of March 14, 2007, stating that the caller wanted to get together with the victim. Second, the defendant had telephoned the victim's house telephone on March 17, 2007, and when the victim's mother answered, the defendant said: “Shamaia, call your mom and dad. They [are] worried about you.” He would not identify himself and hung up when the victim's mother asked who was calling, but the defendant did identify himself when the victim's father returned the call to the number revealed by the caller identification feature on the house telephone.⁶ The defendant also spontaneously, and without explanation, stated to the victim's father during this call that he had a physical problem that rendered him unable to be sexually active.

The victim's family provided the police with the information about these calls placed by the defendant, and Raymond Cheverier, an East Hartford police officer, followed up with the defendant to see if he had any information about the then missing victim. After being informed that the victim had been reported missing, the defendant told Cheverier that he had given the victim a ride to another Kahoots exotic dance club located in East Hartford ⁷around 4:30 p.m. on March 14, 2007, but had not seen her since, and that he was sick that evening and had stayed in bed for the next three days. ⁸ The defendant also stated that the victim had told him that she intended to stay with a female friend for a few days.

On March 21, 2007, investigators from the East Hartford police department went to the defendant's house and asked to speak with the defendant inside his home about the victim in order to continue the investigation of the missing persons report. The defendant indicated that he preferred not to disturb his wife, and asked to talk to the investigators at the police station instead. Prior to leaving for the police station, unprompted by the investigators, the defendant stated to Donald Olson, an investigator: “It's sad ... about Mya,” but did not elaborate further on that statement. During the subsequent interview at the police station, the defendant gave the investigators an account of his personal relationship with the victim and his interactions with her on the night of March 14, 2007, which was memorialized in a sworn statement that eventually was read to the jury at trial. In that statement, the defendant again indicated that he had picked up the victim in the afternoon of March 14, 2007, and had dropped her off at the Kahoots in East Hartford at her request, but denied any knowledge of what had happened to her after that time.

On March 21, 2007, the police also discovered that the defendant owned a seventy-five acre parcel of undeveloped land in Stafford (Stafford property). Thereafter, on March 23, 2007, the East Hartford police traveled to the Stafford property to search for the missing victim, during which time detectives entered the property and searched an unlocked ⁹ camper/trailer (trailer) and the other unsecured areas they discovered on the property that were large enough to conceal a body. The police also conducted a helicopter flyover of the Stafford property at that time, during which they photographed the site and observed the trailer, two sheds, a fire pit, some tractors, and footprints and tire tracks in the snow that had fallen on March 16, 2007. The police did not find the victim on the property, but observed that the fire pit was not snow covered.

Continuing their investigation, the police again sought to speak with the defendant at his house on April 7, 2007, but the defendant suggested meeting with the officers at a Dunkin' Donuts in East Windsor to talk, instead. After arriving at the Dunkin' Donuts, but before the officers asked the defendant any questions regarding his interactions with the victim, the defendant volunteered information about a moral turpitude clause in his employment contract, which provided that he could not do anything to damage his company'sreputation, and stated that, if he violated the clause, he “could be out a lot of money.” Shortly after arriving at Dunkin' Donuts, which was busy with Saturday morning customers, the defendant suggested that they go somewhere more private to continue talking, and further suggested the parking lot of another exotic dance club located on the same street as the Dunkin' Donuts.

When they arrived at the parking lot, the defendant entered the police cruiser with the officers to continue the conversation. After engaging the defendant in a casual conversation about his interactions with the victim, the officers suggested that they visit some of the places the defendant had visited with the victim on March 9, 2007. The defendant remained in the police cruiser while guiding the officers to a convenience store and Asnuntuck Community College,¹⁰ and informed the officers that, on March 9, 2007, the victim had expressed a desire to obtain her high school equivalency diploma and to attend cosmetology school. The defendant indicated that he had given the victim $500 on that date to help her attain this goal. He also informed the officers that he had discussed his erectile dysfunction with the victim on March 9, 2007, and that he was unable to perform sexually with her.

Although the defendant seemed to be forthcoming with information requested by the officers up to that point in the conversation, when the officers began asking the defendant about his interactions with the victim on March 14, 2007, he became “slightly agitated.” Additionally,when confronted with information concerning the victim's cell phone records, the defendant acknowledged that he owned property in Stafford, but continued to maintain that he had never brought the victim there. The police then asked to perform a consent search of the truck the defendant had used when driving the victim around, to which the defendant agreed.

The officers and the defendant then returned to the defendant's house, where the truck was located, performed the consent search of the truck, and found .40 caliber ammunition, .357 caliber ammunition and .38 caliber ammunition in a locked gun safe located between the two front seats.¹¹ After completing the consent search of the truck, the officers discussed arrangements for a consent search of the defendant's Stafford property, which was ultimately scheduled for April 8, 2007, the following day. On April 8, 2007, officers from the East...