State v. Sivri

• Decision Date: 23 August 1994
• Docket Number: No. 14561,14561
• Citation: 231 Conn. 115,646 A.2d 169
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Tevfik SIVRI.

Page 169

646 A.2d 169

231 Conn. 115

STATE of Connecticut v. Tevfik SIVRI.

No. 14561.

Supreme Court of Connecticut.

Argued May 10, 1994.

Decided Aug. 23, 1994.

John R. Gulash, Jr., with whom were Margaret M. Wynne and, on the brief, Charles W. Fleischmann, Bridgeport, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Jonathan C. Benedict, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

BORDEN, Associate Justice.

The defendant, Tevfik Sivri, appeals ¹ from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a. ² The defendant claims that the trial court improperly: (1) determined that the evidence was sufficient to establish beyond a reasonable doubt that he intended to cause the death of the victim; (2) declined to instruct the jury on lesser included offenses; (3) denied his motion to suppress evidence seized from his home pursuant to a search warrant; (4) denied his motion to suppress evidence obtained as a result of a warrantless search of his automobile; and (5) admitted into evidence expert testimony regarding population frequency calculations employed in the analysis of DNA typing evidence. ³ We agree with the defendant's claim regarding the necessity for instructions on the lesser included offenses. Accordingly, we reverse the judgment and remand the case for a new trial.

The state produced the following evidence. ⁴ At 7 a.m. on April 18, 1988, the victim, Carla Almeida, drove her boyfriend, Gerard Patano, to his job in her Volkswagen van. He expected her to pick him up by 5 p.m. that afternoon. The victim, who was twenty-one years old, had been living with Patano in Meriden for more than one year. That morning she also drove their son, who was less than one year old, to the home of Eunice McGuire, her aunt, for day care. McGuire expected the victim to pick up her child at approximately 5 p.m. that day. McGuire had been taking care of the child five days a week for approximately ten weeks, since the victim had started a new job. The victim picked up the child every day between approximately 5 and 5:30 p.m. The victim did not pick up Patano from work or their son from McGuire's home on April 18, 1988, however, and neither Patano nor McGuire has seen her again.

The victim worked five days a week for Andre's Massage (Andre's), which promoted "full body massage" services. Andre's did not maintain a massage parlor, but instead provided for house calls and retained a hotel room at the Hostways Motel in East Haven that was available for business twenty-four hours a day. An employee of Andre's, Paula Doak, received telephone orders for massage services at the home of one of the owners of Andre's, Gabriel Gladstone, in Hadlyme. According to Doak, the service offered was a choice of a one hour or a two hour full body massage. The fees for the employee's services were generally divided equally between Andre's and the employee. Doak denied any knowledge that any services other than massage services were being provided by employees of Andre's. She acknowledged, however, that Gladstone had previously been arrested for promoting prostitution.

The defendant lived with his mother in a house in northern Trumbull near the Monroe border at 37 Kitcher Court (Kitcher Court). At the time of the victim's disappearance, the defendant had been employed by a painting contractor, Patrick Burdo, for approximately eighteen months. On April 18, 1988, he went to work on an exterior job in New Haven in the morning, but because it began to rain at approximately 10 a.m., the defendant was sent home. At 2 p.m., he telephoned Andre's. Doak answered the telephone and wrote down the defendant's name, age, telephone number, and the fact that he was a painter who had been sent home from work. Doak told him, as she routinely had told other customers, that he would be required to show the masseuse photographic identification, and that the masseuse would not take off her clothes or go to bed with him. The defendant did not request any particular masseuse.

After servicing her second customer of the day at the motel in East Haven, the victim telephoned Andre's and Doak told her that the defendant would be her next customer for a one hour appointment. Doak gave the victim the defendant's telephone number, and told her to telephone the defendant and obtain directions. Doak also believed that the victim was supposed to meet Gladstone at some point and give Gladstone his share of the receipts for the previous two days. The victim telephoned Doak and stated that she was going to the defendant's house. At 3:40 p.m., the victim telephoned Doak from Kitcher Court, and told Doak that she had checked the defendant's identification and verified his identity. A newspaper carrier noticed the victim's Volkswagen van in the driveway of the house at Kitcher Court between 3:30 and 4 p.m. while he was riding his bicycle past the house.

Andre's had a strict policy requiring each employee to call in at the beginning and conclusion of each appointment, and the victim had always adhered to this policy. When the victim had not called in by 4:40 p.m., Doak waited ten minutes, and then called the defendant's house. There was no answer. She called twice more without success, and then called the Trumbull police, told them of the situation and asked them to drive by Kitcher Court to see if the victim was still there. At 5 p.m., the newspaper carrier delivered a newspaper to the defendant's residence and noticed that the victim's van was no longer in the driveway.

At 6 p.m., Gladstone's wife, Rosanna Silva, arrived home and Doak expressed her concern about the victim to her. Silva called the defendant's residence repeatedly and finally got a busy signal, which she had the operator interrupt. A male voice then answered the telephone, and Silva asked if the victim was there, and if not, where was the victim. She repeated her questions, but received no response.

In response to Doak's telephone call, Lieutenant Henry DiJulio and Officer James Arlio of the Trumbull police department were dispatched to the defendant's residence. DiJulio arrived at Kitcher Court between 5:45 and 6 p.m. There was a young girl at the front door of the residence and, in the driveway, an automobile occupied by two high school age children. DiJulio asked the girl if anyone was home and she said no. The defendant's automobile, a 1987 Mitsubishi Tredia, was not in the driveway. DiJulio subsequently patrolled the area looking unsuccessfully for the victim's van.

Bridgeport police officer Paul Wargo, however, had noticed the victim's van parked on Waterview Avenue just north of the I-95 overpass while he was on routine patrol between 4:30 and 5 p.m. This location is approximately eight to ten miles from the defendant's home. There was nobody in the van, and its doors were unlocked. Wargo was unaware of the ongoing police investigation in Trumbull. When Wargo drove by approximately one-half hour later, the van was still there, and he had it towed to prevent it from being stolen.

Arlio patrolled the defendant's neighborhood in an attempt to discover any information regarding the victim's disappearance. At 6:15 p.m., Arlio met DiJulio at the defendant's residence, and Arlio observed that the defendant's automobile was still not in the driveway. At that time, DiJulio spoke with the defendant's mother and one of her sons, and explained the investigation, but did not enter the house.

Arlio continued to patrol the neighborhood. At approximately 7:30 p.m., while Arlio was across the street from the defendant's residence, he observed the defendant drive his automobile into his driveway. Arlio approached the defendant, ascertaining his identity by addressing him by name, and asked the defendant if he had been with a woman earlier in the day. The defendant answered yes. Arlio told the defendant that DiJulio wanted to speak with him. The defendant then entered the house and telephoned DiJulio, who asked him to come to the police station. The defendant exited the house, in the same clothing he had worn into the house, and told Arlio that he was going to the station to talk with DiJulio. At the station, the defendant told DiJulio that the victim had been at his house, that he had paid her $88, and that she had left at approximately 3:30 p.m.

On the day of the victim's disappearance, Refik Sivri, the defendant's brother, was working at a restaurant. He abruptly left work several hours early, at 7 p.m., after receiving a telephone call from a person whom his employer described as having a male voice.

The Trumbull police did not discover the victim's van until April 20, two days after her disappearance, when they became aware that it was in the custody of the Bridgeport police. At this point, according to Captain Frederick Nacovitch of the Trumbull police department, the police believed that there was probable cause to search the defendant's house, and they subsequently obtained a search warrant to do so.

The Trumbull police and the state police, with the assistance of Henry Lee, the director of the state forensic laboratory, began to search the defendant's residence on Thursday morning, April 21, continuing until approximately 3 a.m. the next morning. Lee and state police Detective James Craig testified regarding a number of blood stains and blood spatters ⁵ that were found in the house, many of which were identified through chemical analysis as being human blood of the victim's blood type. There was a tissue with a blood-like stain in a garbage can in the garage. There were multiple blood droplets in the doorway that serves as an entrance to a hallway leading from the garage to the lower level family room of the house. On the bottom portion of the south wall of the hallway there were blood...