State v. Smith

• Decision Date: 14 April 2015
• Docket Number: No. 32803.,32803.
• Citation: 156 Conn.App. 537,113 A.3d 103
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kendall O. SMITH, Sr.

156 Conn.App. 537

113 A.3d 103

STATE of Connecticut

v.Kendall O. SMITH, Sr.

No. 32803.

Appellate Court of Connecticut.

Argued Oct. 16, 2014.

Decided April 14, 2015.

Pamela S. Nagy, assigned counsel, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, was Matthew C. Gedansky, state's attorney, for the appellee (state).

Paul S. Bailin and John T. Walkley, Milford, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Glenn W. Falk and Hanni M. Fakhoury, pro hac vice, filed a brief for the Electronic Frontier Foundation as amicus curiae.

DiPENTIMA, C.J., and SHELDON and FLYNN, Js.

Opinion

SHELDON, J.

The defendant, Kendall O. Smith, Sr., appeals from the judgment of conviction, rendered against him after a jury trial, on charges of robbery in the first degree in violation of General Statutes § 53a–134 (a)(4), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 (a) and 53a–134 (a)(4), as enhanced by General Statutes § 53–202k for having committed a class A, B or C felony with a firearm, and his posttrial plea of nolo contendere to the charge of being a persistent serious felony offender in violation of General Statutes § 53a–40 (c). The defendant was sentenced on those charges to a total effective term of fifty-five years in prison. On appeal, the defendant claims that the trial court erred by (1) denying his pretrial motion to suppress historical cell site location information (CSLI) from his cell phone records, which police obtained without a warrant from his cellular service provider, in alleged violation of his state and federal constitutional rights against unreasonable searches and seizures; (2) failing to instruct the jury, as he had requested, as to how it should consider and evaluate the testimony of expert witnesses; (3) instructing the jury, prior to a midtrial recess, that it could discuss its impressions of the trial during that recess; (4) admitting for substantive purposes, 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), the signed, written statement of a material witness, Henry Lanier; and (5) acting as an advocate for the state by so questioning Lanier in the presence of the jury as to suggest that it did not believe Lanier's partial recantation of his written statement that was admitted under Whelan. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 23, 2008, at approximately 11:45 a.m., two men entered the front door of the Workers' Federal Credit Union in Stafford Springs wearing ski masks, gloves and dark clothing. The first man to enter, while carrying a gun in his left hand, jumped over the counter into the teller area, where three tellers were then working. He ordered the tellers to put up their hands and asked them where the money was. After taking the money from the tellers' cash drawers and putting it in a bag, the man jumped back over the counter into the lobby area of the bank.

While the first man was taking money from the tellers' cash drawers, the second man, who also was carrying a gun, ran toward the back of the bank to the desk of Stacey Fisher, another bank employee. On reaching Fisher's desk, the second man forced her at gunpoint to lead him into the vault area behind her so he could access the bank's safes. As the first man jumped back over the counter into the lobby area, the second man emerged from the vault area carrying four or five cash drawers¹ from one of the bank's two safes. Upon meeting near the front door of the bank, the two men exited and got into a small or medium sized, silver or light colored car that had been parked in front of the building. The second man, who had been carrying the cash drawers, threw them into the backseat of the car and got into the passenger seat while the first man got into the driver's seat. The men then drove the car away, turning immediately into the driveway of Bravo's restaurant, next door to the bank. Although the tellers quickly lost sight of the car, two of them saw it long enough to see and write down its license plate number. Although none of the bank employees could identify the robbers because their skin was fully concealed by their clothing, they believed, based upon their speech and the sounds of their voices, that the men were African–American. After the robbers left the bank, Fisher locked the doors and called 911. The assistant manager of the bank later determined that the robbers had stolen a total of $150,714.94 from the bank.

State police Sergeant Thomas Duncan and Stafford police Officer James Desso arrived at the bank within five to ten minutes of Fisher's 911 call. Upon their arrival, they were told by one of the bank employees that the robbers had driven into the parking lot behind Bravo's. Duncan thus went outside to look for the robbers while Desso remained in the bank. Duncan and state police Trooper Colleen Anazewski found an unoccupied silver Volkswagen in the parking lot behind Bravo's, parked diagonally across the lines marking the parking spaces, with its driver's door open and its engine running. It was later learned that the Volkswagen had been reported stolen from a Hartford residence on January 5, 2008. Because there was snow on the ground but there were no footprints in it to suggest that the robbers had fled on foot, the responding officers concluded that they had probably left the area in a second getaway vehicle. Duncan so notified his dispatcher, and called in the state police helicopter, Trooper One, to assist in searching for the robbers.

State police Trooper Bruce Taylor was in the resident trooper's office in Somers when he first heard a report about the bank robbery over the radio. Upon hearing the report, he got into his vehicle and began to drive eastbound toward Stafford on Route 190. While en route, Taylor heard additional radio broadcasts reporting that the robbers, then described only as two black males, had abandoned their initial getaway vehicle and were probably fleeing the area in another vehicle. Based upon that report, Taylor continued to drive toward Stafford, looking for anything that might appear suspicious, and particularly for two black males. At some point he observed two black males in a black pickup truck heading westbound on Route 190. Taylor did not turn around immediately or try to stop the pickup truck, but radioed his observations to the other troopers who were coming along behind him so they could stop the truck and investigate.

State police Sergeant Jose Claudio was also in the resident trooper's office in Somers when he heard the initial radio transmission about the bank robbery in Stafford. Claudio did not know what type of vehicle the robbers were using to make their getaway, but he, too, had learned from the radio transmissions that they were two black males. Because Claudio thought it likely that the robbers would try to reach an interstate highway to flee the area, he presumed that they would be travelling westbound from Stafford toward Interstate 91. He thus drove eastbound toward Stafford on Route 190, at a very slow speed, approximately ten miles per hour, so he could look closely at the occupants of all westbound vehicles. He, too, was looking for a vehicle occupied by two black males who might appear to be suspicious.

As Claudio approached the Stafford town line, he noticed a newer looking black pickup truck coming toward him. Because Claudio was driving so slowly, the operators of most oncoming vehicles regarded him closely, with evident curiosity. He noticed, however, that the black male operator of the pickup truck was acting very differently, staring rigidly straight ahead of him, seemingly in an effort to avoid Claudio's gaze. Claudio also noticed that the black male passenger in the pickup truck had ducked down low in his seat and was peering up over the dashboard. Upon making these observations, Claudio decided to follow the truck so he could see and run its license plate number, and get a closer look at its oddly behaving occupants. Accordingly, after waiting for several westbound cars to pass by him, Claudio made a U-turn so he could follow the truck. Once he did so, however, he discovered that the truck was no longer in sight, so he activated his cruiser's emergency lights and accelerated in an effort to overtake it. When, eventually, he caught sight of the truck ahead of him, he could see that it was being driven erratically, passing cars in a no passing zone. Claudio thus turned on his siren, increased his speed to catch up to the truck and tried repeatedly to stop it, but it further accelerated at each of his attempts, maneuvering through busy traffic and going through a red traffic signal. At that point, Claudio was confident that he was in pursuit of the robbers, and he relayed that information to his dispatcher.

Claudio continued to follow the truck through Enfield, first heading south on Route 191, then west on Route 140. As he did so, he saw the passenger of the truck start to duck up and down and then, while the two vehicles were travelling at approximately 100 miles per hour, saw him hang out the passenger's side window and start to throw things at his cruiser. First, the passenger threw out several rolls of coins. Shortly thereafter, he threw out the cash drawers. Claudio reported the thrown objects to his dispatcher so that other troopers could find and retrieve them. Meanwhile, the chase continued.

State police Trooper Richard Cournoyer had been issuing a ticket to a motorist when he heard a report about the robbery and the ensuing chase over his radio. Because he was in the area through which the suspects were expected to pass, he rushed to the intersection of Route 140 and Route 5 with the intention of deploying stop sticks to disable their truck. Upon arriving at that...