State v. Bember

316 A.3d 297

349 Conn. 417

STATE of Connecticut

v.Tyhitt BEMBER

(SC 20708)

Supreme Court of Connecticut.

Argued October 27, 2023

Officially Released June 25, 2024

James B. Streeto, senior assistant public defender, for the appellant (defendant).

Meryl R. Gersz, assistant state’s attorney, with whom were John P. Doyle, Jr., state’s attorney, and Melissa Holmes, assistant state’s attorney, for the appellee (state).

Robinson, C. J., and McDonald, D’Auria, Mullins, Ecker, Alexander and Dannehy, Js.

ALEXANDER, J.

₄₂₁Following a jury trial, the defendant, Tyhitt Bember, was convicted of felony murder in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35.¹ On appeal,² the defendant claims that (1) the trial court abused its discretion in permitting the state to question two of its witnesses about their cooperation agreements with the state during direct examination and that this questioning amounted to prosecutorial impropriety, (2) the trial court abused its discretion in concluding that the testimony of the cooperating witnesses was reliable and admissible pursuant to General Statutes § 54-86p,³ and (3) the trial ₄₂₂court’s denial of his motion to suppress the recording of a jailhouse phone call and the .22 caliber revolver seized by the police as a result of information acquired from that recording violated his rights under the fourth amendment to the United States constitution. We reject the defendant’s claims and affirm the judgment of the trial court.

The following facts are relevant to our analysis of the defendant’s claims. On the evening of December 27, 2013, the defendant was driving around New Haven with John Helwig and Melvin Younger in Helwig’s car. The three men were friends and often spent time together smoking, drinking, and engaging in criminal activity. On the night of the murder, the defendant was armed with an older model .22 caliber revolver that had black duct tape wrapped around the grip. Sometime around mid- night, Helwig drove the men to a Taco Bell restaurant near exit 8 on Interstate 91. While parked at the restaurant, the defendant saw the victim, Javier Martinez, walking nearby. The defendant mistook the victim for someone he did not like and with whom he previously had fought. The defendant told Helwig to follow the victim so that he could confront him. At some point, the defendant and Younger exited Helwig’s car to pursue the victim on foot. When the defendant caught up to him, he realized that the victim was not the person he thought he was but decided to rob him anyway. When the victim resisted, the defendant shot him five times. The victim died at the scene. Upon returning to Helwig’s car, the defendant told Helwig that he had shot the victim because the victim disrespected him during the robbery by pushing his gun out of the way.

A nearby resident found the victim’s body in the street and summoned the police. Five .22 caliber bullets were later removed from the victim’s body. Investigators were able to determine that four of the bullets had been ₄₂₃fired from the same weapon. The remaining bullet was too damaged for an accurate comparison.

In 2017, after a lengthy investigation, the state charged the defendant with several offenses relating to the victim’s death. The state’s case turned primarily on the testimony of two cooperating witnesses, Otis Burton, a close friend of the defendant to whom the defendant had confessed after the murder, and Helwig, who was with the defendant on the night of the murder. The state also presented cell site data and analysis placing the defendant near the crime scene close to the time that the victim was shot, and a .22 caliber revolver with black duct tape wrapped around its grip, which the defendant had given to his girlfriend for safe keeping. The bullets recovered from the victim’s body and crime scene were too damaged to be directly connected to the defendant’s .22 caliber revolver.

I

The defendant first claims that the trial court abused its discretion in permitting the state to question Helwig and Burton regarding the specific terms of their cooperation agreements with the state⁴ during direct examination.₄₂₄ The defendant contends that the state should have been precluded from introducing the bolstering aspects of the agreements, particularly the truthfulness provisions, until after Helwig’s and Burton’s credibility was attacked by the defense. The defendant further contends that the state’s use of the cooperation agreements during its direct examination, and the testimony elicited as a result, amounted to prosecutorial impropriety because it impermissibly vouched for the witnesses’ credibility.

The state argues that the defendant waived this claim because defense counsel affirmatively agreed that the state could question Helwig and Burton about their cooperation agreements during direct examination. The state further argues that, even if the claim was not waived, the trial court did not abuse its discretion in ₄₂₅allowing the challenged testimony under State v. Calhoun, 346 Conn. 288; 289 A.3d 584 (2023), and State v. Flores, 344 Conn. 713, 281 A.3d 420 (2022), because defense counsel informed the court, prior to the start of trial, that Helwig’s and Burton’s expectations under their cooperation agreements would be "front and center" in his cross-examination of them. The state further argues that, because the trial court did not abuse its discretion in permitting the state to introduce the cooperation agreements, there was no prosecutorial impropriety.

The following additional facts are relevant to the resolution of this claim. Prior to trial, the defendant moved to preclude the state "from offering [Helwig’s and Burton’s] cooperation agreement[s] in its case-in-chief." Defense counsel argued that the state should be precluded from presenting the agreements because the prosecutor trying the case was the sole signatory on the agreements, which was inherently bolstering of the witnesses’ credibility. Defense counsel further argued that, because "[t]he expectations of the witnesses under [the cooperation] agreement[s] [would] be front and center of some portion of … [his] cross-examination … [he] should have the right to introduce [the agreements] … if [he] choose[s] to go down that road."

In making this argument, defense counsel acknowledged that, under State v. Gentile, 75 Conn. App. 839, 851–52, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003),⁵ the trial court had discretion to admit ₄₂₆the cooperation agreements during the state’s direct examination, before the cooperating witnesses’ credibility was attacked. Defense counsel maintained, however, that, because Helwig’s and Burton’s credibility was pivotal to the success of the state’s case, "this [was] the very sort of case [that] Gentile may have had in mind, [in which] the court ha[s] the ability to exercise its discretion and [to] say to the state, no, you don’t get to offer [the agreements] in your case-in-chief. You can certainly mention [them]. … I don’t think that’s improper. But to … offer the document[s] [themselves] … especially when the [person who signed them] on behalf of the state … is the very [person] trying the case … [that is a bridge too] far. … [T]hat’s implicit vouching that this court should prohibit …."

The trial court thereafter granted the defense’s request to preclude the state from introducing copies of the cooperation agreements during its direct examination. At that time, the court asked defense counsel if it correctly understood the defense’s objection to the introduction of the agreements, stating in relevant part: "The [defense] has requested that the written agreement[s] be disallowed as … exhibit[s], but, as I understand the record, and I can be corrected shortly if I’m wrong … [the defense] has no objection to thorough and specific testimony by each witness as to the exact contents of the agreements and their understanding [of the agreements]. … There’s no objection, as I understand it, to the [state’s] examining the ₄₂₇witnesses from a document not in evidence. … [Therefore], the state will be permitted leading questions on direct [examination] to fully [flesh] out the terms of the agreement[s]. The documents will be marked for [identification] purposes only."⁶ When the trial court finished speaking, it asked defense counsel whether it had accurately conveyed for the record the defense’s objection to the state’s use of the cooperation agreements. Defense counsel responded, "Yes, I believe … that [the court has] stated [the defense’s] position correctly …. "

[1–3] Given this procedural history, we agree with the state that the defendant has waived the right to challenge the trial court’s evidentiary ruling as it relates to the admission of the terms of the cooperation agreements on direct examination.⁷ See, e.g., State v. Hampton, 293 Conn. 435, 449, 988 A.2d 167 (2009) ("[w]hen a party [or his counsel] consents to or expresses satisfaction with an issue at trial, claims arising from that issue are ₄₂₈deemed waived and may not be reviewed on appeal" (internal quotation marks omitted)). The record leaves no reasonable question that defense counsel assented to the very procedure of which the defendant now complains. Defense counsel expressly agreed that the state could use "leading questions on direct [examination] to fully [flesh] out the terms of the agreement[s]" and the witnesses’ understanding of them, which is exactly what occurred. Furthermore, even if the claim was not waived, it still would fail because defense counsel informed the trial court, prior to the start of trial, that Helwig’s and Burton’s expectations under their cooperation agreements would be "front and center" in his cross-examination of them. See, e.g., State v. Calhoun, sup...