State v. Benefield

153 Conn.App. 691

103 A.3d 990

STATE of Connecticut

v.Kevin M. BENEFIELD.

No. 36438.

Appellate Court of Connecticut.

Argued Sept. 10, 2014.

Decided Nov. 18, 2014.

Daniel J. Krisch, assigned counsel, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, was Michael Dearington, state's attorney, for the appellee (state).

LAVINE, MULLINS, and BORDEN, Js.

Opinion

LAVINE, J.

This case requires us to apply the fourth amendment's prohibition against unreasonable search and seizures in light of steady advances in modern day scientific technology, particularly STR DNA testing.¹ Specifically, we must determine whether the defendant's 1986 unqualified consent to a complete search of his saliva sample permitted DNA testing to be performed in 2009. We conclude that the defendant surrendered any expectation of privacy in the sample in 1986, regardless of how or when the sample was to be tested.

The defendant, Kevin M. Benefield, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a–54a (a) and felony murder in violation of General Statutes § 53a–54c. On appeal, the defendant claims that the trial court improperly (1) concluded that the scope of the consent he gave the police in 1986 to test a sample of his saliva included a DNA test of that sample conducted in 2009, and (2) merged his convictions for murder and felony murder instead of vacating his conviction for felony murder.² We affirm in part and reverse in part the judgment of the trial court.

The following facts, as reasonably found by the jury, are relevant to our resolution of the appeal. At all times relevant, the victim, Barbara Pelkey, was employed as a machine operator at R.S. Moulding & Manufacturing Company (business), where she worked the night shift alone from 10:30 p.m. until 6:30 a.m. The business is located in a Wallingford industrial park that houses a number of businesses, including at the time a catering concern and a “car” boutique. On September 3, 1986, Ernest Hernandez, another machine operator, reported for work at 6:30 a.m. and discovered the victim's naked body lying face down in an office at the rear of the business.³ Hernandez immediately summoned the Wallingford police.

Jeryll Lee McGrath, a Record Journal reporter, arrived at the scene at approximately 8:45 a.m. and interviewed the employees of nearby businesses who had gathered outside the business, which had been cordoned off by the police. The defendant, who was then employed at the catering concern,⁴ was interviewed by McGrath. He told her that he knew the victim well enough to say “hello” to her. At the time McGrath interviewed the defendant, the police had not yet released the victim's identity.

Edward T. McDonough, a forensic pathologist and then the state's deputy chief medical examiner, conducted an autopsy of the victim's corpse and testified at trial. The autopsy revealed that the victim had been bludgeoned about the head and neck, and suffered several skull and facial fractures and hemorrhaging over the entire surface of her brain. The injuries to the victim's neck were consistent with manual strangulation, and the wounds to her head were consistent with being struck with a mallet found near her body.⁵ There were bruises and lacerations to her torso, hands and arms, which were indicative of defensive wounds. The victim also suffered a violent sexual assault, resulting in an anal tear and hemorrhaging in her pelvic area. There was sperm in her vagina and anus. McDonough was unable to determine the exact time of the victim's death, but he estimated that it occurred between 2 and 4 a.m. on September 3, 1986. He opined that the victim was alive when the injuries to her head were inflicted and that she died as a result of blunt force trauma to her head and neck.

During their investigation, the police identified several possible suspects, including the defendant. On September 7, 1986, the defendant consented to be interviewed by the police. During the interview, the defendant discussed the victim by name and told the police that he had met her once and knew that she worked alone at night. In a subsequent interview, the defendant again stated that he had met the victim only once and had never gotten closer to her than four feet. Other witnesses, however, recalled seeing the defendant in the victim's company on at least four occasions.

During the September 7, 1986 interview, the defendant provided police with a detailed alibi of where he claimed to have been on the night of the victim's death. He told the police that on September 2, 1986, he was with his girlfriend, Fradrika Hardy, in New Haven from 4 or 5 in the afternoon until midnight. After he took his girlfriend home, he went to the home of his cousin, Felicia Wells. He and Wells went to a bar until closing time. The two then went to an after-hours club, drank beer, and left after twenty minutes to search for Wells' boyfriend. The defendant stated that, after he left Wells, he went home to bed at 1:45 a.m. The defendant also told the police that he went to work at the catering company at 10 a.m. the next day, September 3, 1986. When questioned by the police, Hardy stated that the defendant was with her until 3 a.m. on September 3, 1986. Although the police recognized discrepancies in the defendant's and Hardy's accounts, he did have an alibi.

On September 12, 1986, the defendant permitted the police to obtain samples of his hair⁶ and saliva.⁷ Prior to providing the saliva samples, the defendant signed a consent form authorizing the police to “conduct a complete search” of the three saliva samples taken by buccal swab. Soon thereafter, personnel at the state forensic science laboratory (laboratory) conducted an absorption-inhibition test⁸ that revealed that the defendant's saliva contained antigenic substance H and amylase. Those test results were of little evidentiary value.

Although the police had identified several suspects, they made no arrests in 1986. In September, 1987, however, John Card and Marilu Flaler provided “statements to the police that included unpublished details of the crime....” State v. Ireland, 218 Conn. 447, 449, 590 A.2d 106 (1991). They identified several men who had made incriminating remarks indicating their involvement in the victim's death. Id. Kenneth F. Ireland, Jr., subsequently was arrested and convicted of the victim's murder, sexual assault, and burglary. Id., at 448, 590 A.2d 106. In 2009, however, Ireland was exonerated of those crimes on the basis of DNA evidence. See Skakel v. State, 295 Conn. 447, 706, 991 A.2d 414 (2010) (Palmer, J., dissenting).

In 2009, the police reopened the investigation into the victim's murder, but found no new witnesses. Instead, the police asked personnel at the laboratory to use DNA testing to reexamine some of the evidence the police had gathered in 1986. The results of the DNA testing demonstrated that the defendant could not be eliminated as a contributor of the sperm found in the victim's vagina.⁹ On the basis of the DNA results, Lieutenant Robert Fils of the Wallingford Police Department obtained an arrest warrant for the defendant, who was then living in Bronx, New York.

In December, 2009, Fils and two other officers traveled to the Bronx to interview the defendant. Prior to interviewing the defendant, the police advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The police showed the defendant the arrest warrant, which included a charge of sexual assault. The defendant stated to Fils that “it wasn't sexual assault, that it was consensual,” that “she took her own clothes off,” and that he and the victim had “regular sex” on the floor of the business. The defendant stated that, as he was departing from the business, he saw the victim get dressed and move toward the bathroom. Fils asked the defendant why he killed the victim if the sexual encounter was consensual.

The defendant denied killing the victim, but stated that his memory of what took place that night was a bit blurry because he had smoked phencyclidine, commonly known as PCP, that night. He also stated that “it was something that should not have happened,” but he did not explain what it meant. The police obtained a search warrant to obtain another buccal swab of the defendant's saliva, which was sent to the laboratory for DNA testing. That testing confirmed that the defendant was the source of sperm in the victim's vagina.

The defendant was arrested, returned to Connecticut, and tried to a jury in 2012. The state placed the results of the 2009 DNA testing into evidence over the defendant's objection. The jury found the defendant guilty of murder and felony murder. The court merged the two convictions and sentenced the defendant to sixty years incarceration. The defendant filed motions for a judgment of acquittal and for a new trial; the court denied both motions, and the defendant appealed.

I

The defendant first claims that the court improperly concluded that the scope of the consent he gave the police in 1986 to obtain and test the saliva samples he provided included the DNA testing conducted in 2009. We disagree.

“Our standard of review of a trial court's findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record.... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision....” (Internal quotation marks omitted.) State v. Gonzalez, 278 Conn. 341, 347–48, 898 A.2d 149 (2006). When an appeal raises questions of law, as this case does, our review is plenary. Id., at 348, 898 A.2d 149.

The following facts underlie the defendant's claim. In ...