State v. Pierre, No. 17227.

Decision Date31 January 2006
Docket NumberNo. 17227.
Citation890 A.2d 474,277 Conn. 42
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Gregory PIERRE.

Jeremiah Donovan, Old Saybrook, with whom was William T. Koch, Jr., for the appellant (defendant).

Peter A. McShane, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and Michael L. Regan, supervisory assistant state's attorney, for the appellee (state).

SULLIVAN, C.J., and BORDEN, KATZ, VERTEFEUILLE and ZARELLA, Js.

BORDEN, J.

The defendant, Gregory Pierre, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the judgment of the trial court convicting the defendant of two counts of kidnapping in the first degree, and one count each of felony murder, robbery in the first degree and manslaughter in the first degree. The defendant raises two issues on appeal, the first of which contains several subparts. First, the defendant claims that the Appellate Court improperly concluded that the trial court's admission of a third party's prior inconsistent statement pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986):(1) did not violate Whelan's requirement of personal knowledge; (2) satisfied the requirements of the dual inculpatory statement and adoptive admission exceptions to the rule against hearsay; and (3) did not abridge the defendant's state and federal constitutional rights to confrontation. State v. Pierre, 83 Conn. App. 28, 33-42, 847 A.2d 1064 (2004). Second, the defendant claims that the Appellate Court improperly concluded that his right to counsel failed to attach upon the signing of an information by the state. Id., at 32, 847 A.2d 1064. We affirm the judgment of the Appellate Court.

As part of a six count information, the defendant was charged with capital felony in violation of General Statutes § 53a-54b, murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c,1 two counts of kidnapping in the first degree in violation of General Statutes § 53a-92,2 and robbery in the first degree in violation of General Statutes § 53a-134.3 Prior to trial, the defendant moved to suppress written and oral statements obtained by the police on June 14 and 24, 1999, based upon the argument that his right to counsel had attached upon the state's signing of an information on May 13, 1999. Additionally, during the state's case-in-chief, the defendant objected to the admission for substantive purposes, pursuant to State v. Whelan, supra, 200 Conn. 743, 513 A.2d 86, of a prior inconsistent statement from a third party witness containing out-of-court statements that incriminated the defendant in the alleged crimes. The trial court denied the defendant's pretrial motion to suppress statements he had made to the police, and overruled his objection to the admissibility of the prior inconsistent statement of the third party. The jury subsequently found the defendant not guilty of the capital felony and the murder charges. It found the defendant guilty, however, of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55,4 and also found the defendant guilty of felony murder, kidnapping and robbery. The trial court rendered a judgment of conviction in accordance with the jury's verdict. The defendant appealed from the judgment of his conviction to the Appellate Court. The Appellate Court rejected the defendant's claims and affirmed the trial court's judgment of conviction on all counts. State v. Pierre, supra, 83 Conn.App. at 42, 847 A.2d 1064. This certified appeal followed.5

The jury reasonably could have found the following facts. On August 22, 1998, at approximately 11 p.m., the victim, James Conner, visited his parents on their boat located at the Essex Marina. A short time later, the victim borrowed his father's car, a light colored Saab, and informed him that he was going to the Black Seal, a restaurant and bar located near the marina. The victim left the Black Seal prior to 1:30 a.m., at which point he placed a telephone call from his father's place of business to Lucky's Cafe (Lucky's), a bar located in New London. Between the hours of 1:30 a.m. and 2 a.m., the victim arrived at Lucky's and sought to purchase a small quantity of crack cocaine from the defendant. The defendant had arrived at Lucky's at approximately 10 p.m. with two friends, Abin Britton and Jeffrey Smith, as well as Smith's friend, Junito Jarvis. The defendant informed the victim that he did not have any drugs with him, but that he could get some from his home, which was located on Michael Road in New London. The victim offered to drive the defendant to the defendant's home in order to obtain the cocaine and then to drive him back to Lucky's once the transaction was complete. The defendant agreed, and instructed Smith and Britton to wait for him at Lucky's.

Shortly after the victim and the defendant left the bar, at Smith's request, Jarvis drove Britton and Smith to the defendant's home. Upon parking at the defendant's apartment building, Jarvis observed the defendant exit the building and approach another vehicle that appeared to be a light colored Saab. The defendant stood next to the driver's side window and proceeded to have a conversation with the driver of the vehicle. A short time later, Smith and Britton exited Jarvis' vehicle and joined the defendant's conversation. The defendant, Smith and Britton then entered the Saab, and a struggle ensued. Jarvis observed the defendant, Smith and Britton pull the driver out of the vehicle, then punch and kick him for several minutes. All three individuals loaded the driver of the Saab into the backseat, at which point they reentered the vehicle, and the defendant drove the Saab out of the housing development. Jarvis did not see the defendant, Britton or Smith again that evening and subsequently drove his own vehicle home. When Jarvis visited Smith at his apartment several days later, Smith revealed several additional details about the incident. Specifically, Smith stated that the individual whom Jarvis had observed in the Saab died after Britton had choked him and hit him in the face with a pipe. Smith also expressed concern to Jarvis over where he, the defendant and Britton had buried the body and asked for assistance from Jarvis in buying concrete in order further to conceal any evidence of the incident. Jarvis refused to provide Smith with any assistance, and never spoke about the incident with him again.

On August 23, 1998, at approximately 6:30 a.m., Harrison Fortier, a sergeant with the Waterford police department, was called upon to investigate a Saab that was partially submerged in the town's duck pond. When Fortier arrived at the scene, the driver's side door of the car was open, the transmission was in neutral, the keys were missing, and the parking brake was disengaged. In addition, there were bloodstains throughout the interior of the vehicle. A search of motor vehicle records revealed that the Saab was registered to Donald Conner, the victim's father. Upon further examination of the vehicle, the police also discovered two palm prints, which Christopher Grice, a criminalist for the state forensic laboratory, later identified as matching Britton's palms. Additionally, a further review of the vehicle's contents revealed that four chrome plated brass pipes were missing from the Saab's trunk. Among the items found in the car was a card for Lucky's, with the handwritten number that the victim had called the previous evening.

On January 10, 1999, the badly decomposed remains of a body were found in Bates Woods, a recreation area in New London located across from Michael Road, where the defendant lived. Upon examining the skull found at the scene, Harold Wayne Carver, chief medical examiner for the state of Connecticut, identified the remains as belonging to the victim and classified the manner of death as a homicide.

On two separate occasions, one in the fall of 1998, and the other in the late winter of 1999, Amanda Blackmon, a friend of the defendant, Britton and Smith, overheard conversations in which the defendant made incriminating statements regarding the victim's death. Specifically, on October 31, 1998, Blackmon attended a party with all three individuals, and during an unrelated disturbance at the party, she heard the defendant say, "Fuck them niggers. We'll kill them and bury them too." Similarly, in February, 1999, at a birthday party that Blackmon attended with the defendant, Britton and Smith, she observed that at one point during the party Britton looked as if he were depressed and had been crying. She then overheard the defendant tell Britton that "if he keep[s] his mouth shut, the cops had nothing on them."

During the course of their investigation into the victim's death, the police questioned the defendant several times and obtained several written and oral statements from him. Initially, the defendant met with Detective Anthony Buglione, of the Connecticut state police, on February 10, 1999, and provided a written statement after being advised of and waiving his rights under Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As part of this statement, the defendant denied playing any role in the incident or having any information regarding involvement by Britton or Smith. Buglione met with the defendant once again on March 1, 1999, at which point Buglione advised the defendant of his Miranda rights. The defendant provided a second written statement to police, now acknowledging that he had met the victim at Lucky's with Britton and Smith, and that he had agreed to sell the victim crack cocaine. The defendant stated that the victim...

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