State v. Tomlinson

• Decision Date: 08 September 2021
• Docket Number: SC 20192
• Citation: 264 A.3d 950,340 Conn. 533
• Parties: STATE of Connecticut v. Deonte O. TOMLINSON
• Court: Connecticut Supreme Court

340 Conn. 533

264 A.3d 950

STATE of Connecticut

v.Deonte O. TOMLINSON

SC 20192

Supreme Court of Connecticut.

Argued November 18, 2020

Officially released September 8, 2021^*

Erica A. Barber, assigned counsel, for the appellant (defendant).

Kathryn W. Bare, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Colleen P. Zingaro and Michael A. DeJoseph, Jr., senior assistant state's attorneys, for the appellee (state).

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

D'AURIA, J.

The principal claims in this appeal concern the propriety of the trial court's admission of evidence regarding a criminal defendant's alleged gang affiliation and, specifically, whether the prejudicial nature of this evidence outweighed its relevance. The defendant, Deonte O. Tomlinson, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), for the shooting death of the victim, Kahlil Diaz, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court improperly admitted the following evidence: (1) expert testimony regarding gangs because it was irrelevant and violated his right to confrontation under the federal constitution; (2) a rap music video because its highly prejudicial nature rendered his trial fundamentally unfair; (3) police photographs that depicted writing on a mirror in a bedroom of his apartment—arguably reflecting gang membership—because the photographs constituted inadmissible hearsay; and (4) portions of a recorded phone conversation that was contemporaneous with the murder because it constituted hearsay and did not fall under the excited utterance exception to the rule against hearsay. Although we recognize that evidence regarding a defendant's gang affiliation may prejudice a jury against a defendant, on the facts of this case, we affirm the judgment of conviction.

Specifically, we conclude that the defendant did not preserve at trial his claim regarding expert testimony on gangs and that, even if the testimony was improperly admitted, it was harmless beyond a reasonable doubt. We also conclude that the defendant has failed to establish that the allegedly erroneous admission of the rap music video was of constitutional magnitude. Finally, we conclude that the trial court did not abuse its discretion in admitting either the photographs of the mirror or the recorded conversation.

Relevant to our review of these claims is the following procedural history, along with the following facts the jury reasonably could have found from the evidence admitted at trial. At approximately noon on May 13, 2016, the day of the shooting, Detectives Theodore Montagna, Edward Martocchio and Albert Palatiello of the Bridgeport Police Department were driving northbound in an unmarked police vehicle on Madison Avenue in Bridgeport. At the intersection of Madison Avenue and Frank Street, Montagna saw a tall, thin, light-skinned black male wearing a black hooded sweatshirt standing in the middle of the street firing a gun with his right hand into a silver-colored vehicle. After firing three gunshots, the shooter turned away and ran eastbound down an alleyway between two residences. Palatiello exited the vehicle and ran northbound on Madison Avenue, where he discovered the victim sitting in a silver-colored Audi, bleeding from his neck. The victim exited his vehicle and died at the scene from multiple gunshots wounds.

Meanwhile, Montagna drove down Madison Avenue, dropped Martocchio off halfway down the block, and parked on the corner of Grand Street and Madison Avenue, about one block from the crime scene, hoping to flush out the shooter. As Montagna proceeded on foot on Grand Street, he saw a tall, thin, black male, later identified as the defendant, exit an alleyway that ran behind a church and led to the backyard of a residence at Madison Avenue and Grand Street. The defendant was no longer wearing a black sweatshirt. Montagna yelled, "[s]top! Police!" The defendant stopped. Montagna grabbed the defendant, and, unsolicited, the defendant said, "I didn't do nothing." Montagna patted the defendant down, searching for a weapon but did not find one. Although the temperature was 61 degrees Fahrenheit and the defendant was wearing only a T-shirt and jeans, he was sweating and his heart was beating rapidly.

While Montagna detained the defendant, Officer Paul Nikola of the Bridgeport Police Department, who had been dispatched to assist in the investigation, found a knit hat, black hooded sweatshirt, and a silver-colored, semiautomatic handgun under a wooden deck in the backyard of a residence that abutted the alleyway from which the defendant had emerged onto Grand Street.

Two witnesses to the shooting were not police officers: Francisco Rivera and Alexis McIntosh. McIntosh had known the defendant since middle school and identified him as the shooter in a phone conversation recorded within moments of the shooting. Rivera, who had been waiting for a bus on Madison Avenue, witnessed the shooting but did not see the shooter's face and could describe the shooter only as tall and dressed entirely in black.

The state's theory of the case was that the defendant was a member of the "150 gang" and that the victim was a member of a rival gang known as the "Green Hollow Boyz." The victim recently had been acquitted after a trial of the murder of a member of the defendant's gang, Ryan Hernandez, and the state contended that the defendant murdered the victim in retaliation. Following a jury trial, the defendant was convicted of murder and carrying a pistol without a permit. The trial court imposed a total effective sentence of fifty-three years of incarceration. The defendant now appeals to this court. Additional facts will be set forth as necessary.

I

The defendant claims that the trial court violated the rules of evidence and his sixth amendment right to confrontation by improperly admitting expert testimony from Sergeant Jason Amato of the Bridgeport Police Department regarding local street gangs. As to his evidentiary claim, the defendant argues that, because no direct evidence established that he was a member of a gang, and, thus, no evidence established that the shooting was associated with gang violence, expert testimony regarding gangs was irrelevant. As to his confrontation clause claim, the defendant argues that Amato's testimony was a conduit for inadmissible, testimonial hearsay obtained from contacts in the community and informants who were not subject to cross-examination. The defendant contends that the state cannot demonstrate that this error was harmless beyond a reasonable doubt. The defendant's failure to brief the issue of harmfulness renders it unnecessary for us to review that claim.

As to the defendant's constitutional claim, which he did not preserve at trial, on the record before this court, we conclude that either a majority of Amato's testimony did not improperly parrot testimonial hearsay statements or the record is inadequate to make that determination. We further conclude that any error by the trial court in permitting Amato to serve as a conduit for testimonial hearsay was harmless beyond a reasonable doubt.

A

The following additional facts and procedural history are necessary to our review of these claims. Prior to trial, the defendant filed a motion in limine to exclude evidence of his association with the 150 gang pursuant to the fifth, sixth and fourteenth amendments to the federal constitution, as well as §§ 4-1, 4-3, 4-5 and 8-2 of the Connecticut Code of Evidence. His supporting memorandum of law, however, contained no constitutional analysis, arguing only that Amato's expert testimony regarding gangs was irrelevant because there was no evidence that the defendant belonged to a gang.

Before the start of evidence, the trial court held a hearing on the defendant's motion in limine. Amato testified that he was the gang intelligence sergeant for the city of Bridgeport. After testifying as to his experience and training, Amato explained that his duties required him to acquire information provided by community members and gang members. When talking to gang members, he would meet with them in an isolated area to obtain pertinent information about gangs, the meaning of signs and symbols that they use, areas of the city that they control, and crimes that had been committed.

Amato also testified that he was familiar with both the 150 gang and the Green Hollow Boyz, as well as with the defendant and Hernandez. He testified that Hernandez had been a member of the 150 gang and that the basis for his opinion included Hernandez’ portrayal of himself in videos and other materials, along with information from sources in the community.¹ The victim and Fabian Francis, who were members of the Green Hollow Boyz, had been arrested and charged with Hernandez’ murder but were acquitted after trial. Amato also was familiar with Tajvon Ferris and Kevin Beason through "several contacts," including "[i]nformation provided through people on the street that they were a part of a—they were part of the 150 [gang]. And we had made contacts on the street with them." Amato learned through informants and social media that the defendant was associated with Ferris and Beason, and with the 150 gang.

Amato then testified that, as part of his duties, he monitored social media to keep an eye on the gangs and to learn more about them. This was how he discovered a rap music video depicting the defendant, Ferris, and Beason. Based on what others had told him, Amato was able to interpret the video's lyrics, including that the use of "G" in the video meant the Green Hollow Boyz.

Based on his experience as a gang intelligence sergeant and his investigation of shootings in the city, including that of the victim, Amato opined that, at the time of...