State v. Washington, SC 20495

CourtSupreme Court of Connecticut
Citation345 Conn. 258,284 A.3d 280
Docket NumberSC 20495
Parties STATE of Connecticut v. Jayvell WASHINGTON
Decision Date15 November 2022

Stephen A. Lebedevitch, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Joseph T. Corradino, state's attorney, and Michael A. DeJoseph, supervisory assistant state's attorney, for the appellee (state).

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


The defendant, Jayvell Washington, appeals from the judgment of conviction, rendered after a jury trial, of one count each of intentional manslaughter in the first degree with a firearm, criminal possession of a pistol or revolver, and carrying a pistol or revolver without a permit. On appeal, the defendant claims that (1) the trial court erred when it in admitted into evidence recordings of phone calls that the defendant made while incarcerated, thereby permitting the state to use the defendant's postarrest silence against him, (2) the trial court erred when it instructed the jury regarding adoptive admissions and combat by agreement, respectively, (3) the prosecutor committed improprieties during certain portions of his closing argument, and (4) the trial court erred in denying the defendant's motion for a new trial, in light of fact that the COVID-19 pandemic impacted the jury's deliberations.1 Although we conclude that the majority of the defendant's claims are without merit, we agree with his contention that the trial court improperly instructed the jury on combat by agreement, as there was insufficient evidence presented at trial to warrant the instruction. We nevertheless conclude that the error was harmless and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. In January, 2019, the defendant drove a blue Mini Cooper to a Citgo gas station in Bridgeport. He parked directly in front of the gas station, facing away from the building and toward Reservoir Avenue. Video surveillance showed the defendant enter the gas station, purchase some items, and return to the driver's seat of the Mini Cooper. No one other than the defendant entered or exited the Mini Cooper while it was parked at the gas station.

Shortly after the defendant returned to the vehicle, the victim, Eugene Rogers, walked down Reservoir Avenue toward the gas station. The victim walked along the sidewalk adjacent to the gas station and strode directly toward the Mini Cooper. When he reached the Mini Cooper, the victim stopped briefly and, from a few feet away, attempted to see through the tinted windows of the defendant's car. The surveillance footage then showed the driver's side car door open. The victim drew a gun from the waistband of his pants, and both the defendant and the victim fired shots toward each other. The victim fired one shot toward the defendant. The defendant fired four shots at the victim, one of which proved to be fatal. After the shots were fired, the defendant closed the door of the Mini Cooper and drove away. He was later apprehended by law enforcement in Bridgeport.

The defendant was charged with one count each of murder, criminal possession of a pistol or revolver, and carrying a pistol or revolver without a permit.2 At trial, defense counsel advanced two theories of defense. First, he argued that the defendant was not the shooter; although defense counsel conceded that the defendant was present at the Citgo gas station, in the Mini Cooper, at the time of the shooting, defense counsel argued that the state had failed to adduce sufficient evidence at trial to prove the defendant's identity as the shooter beyond a reasonable doubt. Alternatively, defense counsel claimed that the defendant killed the victim in self-defense. The defendant was found guilty of the lesser included offense of intentional manslaughter in the first degree with a firearm, and of criminal possession of a pistol or revolver and carrying a pistol or revolver without a permit. The trial court sentenced the defendant to a total effective sentence of forty years of incarceration. This appeal followed. Additional facts will be set forth as necessary.


We first consider the defendant's claim that the trial court improperly admitted into evidence recordings of phone calls that the defendant made to his sister, Lorvita Washington, from the holding area of the Bridgeport Police Department after his arrest, thereby permitting the state to use his postarrest silence during those calls against him, in violation of Doyle v. Ohio , 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).

The following additional facts are relevant to our analysis. On the third day of trial, outside the presence of the jury, the trial court heard arguments from both parties regarding the admissibility of two recorded phone calls that the defendant made to Lorvita from a holding cell at the Bridgeport Police Department on the morning after he had been arrested and booked. The recordings of the phone calls captured conversations between the defendant, Lorvita, and two male acquaintances. In the first call, Lorvita and one of the male acquaintances informed the defendant that they were watching video footage of the shooting as they were speaking with him. Lorvita asked the defendant, "that you in the car?" The defendant did not respond but subsequently stated, "yeah, right?" Lorvita then laughed.

During the second call, while Lorvita and one of the male acquaintances described the footage aloud to the defendant—mentioning that the victim approached the Mini Cooper on foot and looked into the car to see if the defendant was in the car, and that the victim then "saw [the defendant] had it" and tried to run away—the defendant intermittently repeated "yeah" and "right" throughout their description. The defendant did not otherwise comment on Lorvita's or the male acquaintance's characterization of the shooting.

Defense counsel made a number of evidentiary objections to the admissibility of the phone call recordings; he argued that the contents of the recordings were irrelevant, their admission would be more prejudicial than probative, and they contained inadmissible hearsay. In response, the prosecutor argued that the contested phone call recordings were admissible because certain portions of the calls, particularly those in which the defendant failed to deny that he was in the car from which shots were fired that killed the victim, constituted adoptive admissions. Furthermore, in response to defense counsel's claim that the statements were more prejudicial than probative, the prosecutor argued: "I am hard-pressed ... to think of something that is more probative than something that places the defendant not only at the scene of the crime, but [also] in the car from which the shots that killed [the victim] were fired."

The trial court agreed with the state. The court first found that the statements were relevant. The court also concluded that the statements constituted adoptive admissions because "[t]he defendant does not deny that [it was he in the Mini Cooper parked in the Citgo gas station parking lot]. Ordinarily, when people are confronted with damaging information either about their criminal involvement or reputation, they ... generally tend to deny it. The defendant ... does not deny it ...." Finally, the court found that the recordings of the phone calls were "highly probative, not only of identification, which has been squarely placed at issue by the defense in this case, but ... [they also illuminate] the question of who fired [the] gun." Accordingly, the court denied the defendant's motion in limine to preclude the recordings of the phone calls.

On appeal, the defendant abandons his evidentiary objections to the admission of the recordings. Instead, for the first time, he argues that, in admitting the recordings, the trial court violated Doyle , insofar as it allowed the defendant's postarrest silence to be used against him as an adoptive admission.3 The state argues that the record is inadequate to review the purported Doyle violation. Specifically, the state argues that the record is devoid of certain factual predicates necessary to permit review of the defendant's Doyle claim, namely, that (1) the defendant had received his Miranda warnings4 before he made the phone calls at issue, and (2) any pauses in the conversation were triggered by an affirmative invocation of the defendant's right to remain silent. We agree with the state.

Although defense counsel objected to the admission of the recordings at trial, the bases of his objection were evidentiary in nature. Counsel did not raise a Doyle violation at trial, and, therefore, the defendant seeks review of this claim pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015).

Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original; footnote omitted.) State v. Golding , supra, at 239–40, 567 A.2d 823 ; see In re Yasiel R. , supra, at 781, 120 A.3d 1188 (modifying third prong of Golding ). It is well settled that it is the defendant's responsibility to provide a record that is adequate for appellate review. See State v. Golding , supra, at 240, 567 A.2d 823.

In Doyle v. Ohio , supra, 426 U.S. 610, 96 S.Ct. 2240, the United States Supreme Court held...

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