State v. Bethea

187 Conn.App. 263

202 A.3d 429

STATE of Connecticut

v.Jemal E. BETHEA

AC 40429

Appellate Court of Connecticut.

Argued October 22, 2018

Officially released January 15, 2019

Jemal E. Bethea, self-represented, the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Kelly Davis, deputy assistant state's attorney, for the appellee (state).

Lavine, Sheldon and Bright, Js.

SHELDON, J.

The self-represented defendant, Jemal E. Bethea, appeals from the judgment of conviction that was rendered against him, upon the verdict of a jury, on the charge of falsely reporting an incident in the second degree in violation of General Statutes § 53a-180c (a) (1). The defendant was tried under an amended information dated March 2, 2017, in which the state alleged, inter alia,¹ that on or about April 8, 2014, in Wallingford, while knowing the information he reported was false or baseless, he reported to law enforcement an incident that did not in fact occur involving the alleged theft of his motor vehicle, and then, with the intent to injure, defraud or deceive Omni Insurance Group, Inc. (Omni), presented a statement of material fact in support of an insurance claim knowing that the statement contained false or misleading information. Although the defendant's appellate brief is not a model of clarity, we construe his claims on appeal to be (1) that the evidence at trial was insufficient to support his conviction of falsely reporting an incident, (2) that the verdicts in his case, finding him guilty of falsely reporting an incident but not guilty of insurance fraud, were legally inconsistent, (3) that neither the warrant to search and seize the cell phone records of the defendant's girlfriend, who was allegedly driving the defendant's vehicle at the time it was reportedly stolen, nor the warrant for the defendant's arrest in this case was supported by probable cause, (4) that the trial court erred in admitting a first time in-court identification of his girlfriend by an eyewitness, Jacqueline Pecora, (5) that the trial court erred in admitting impermissible hearsay testimony by Pecora that was more prejudicial than probative, (6) that the trial court erred in admitting the defendant's out-of-court statements to the police that were impermissible hearsay, and (7) that the prosecutor committed a Brady² violation by withholding the exculpatory testimony of an eyewitness, Allen Murchie. We affirm the judgment of the trial court.³

The jury was presented with the following evidence upon which to base its verdict. On April 8, 2014, at approximately 6 p.m., Pecora was jogging near the intersection of Hartford Turnpike and Ridge Road in Hamden when she witnessed a white Chrysler 300 drive through the intersection and crash into a "silver blue" Subaru wagon. The driver of the Chrysler, a Caucasian female with blonde hair, who was approximately forty-five to fifty-five years old, pulled over to the shoulder of the road momentarily before leaving the scene. As the Chrysler drove away, Pecora was able to get the number of its license plate. Pecora then ran to get help at a nearby fire station, where she relayed a description of the vehicle that had left the scene and its license plate number to authorities.

Hamden Police Officer Mark Gery subsequently responded to a dispatch concerning the automobile accident at the intersection of Hartford Turnpike and Ridge Road, where he arrived at approximately 6:10 p.m. Upon his arrival, he observed a single vehicle, a Subaru, which was heavily damaged on its passenger side, stopped in the middle of the intersection. He noted that there appeared to be white paint transfer on the right side of the vehicle. While at the scene, Gery spoke to witnesses who reported to him the license plate number of a second vehicle that had been involved in the accident, but had left the scene. When he traced the license plate number, it came back to a pickup truck registered to the state of Connecticut. Realizing that the license plate number he had been given for the evading vehicle was not correct, he attempted to trace permutations of the reported number in a futile attempt to identify the evading vehicle.

Later that evening, at approximately 9 p.m., the defendant contacted the Wallingford Police Department to report that his vehicle, a white Chrysler 300, had been stolen. He spoke with Officer Coleman Turner, who immediately went to a residence on Wharton Brook Drive in Wallingford to take the defendant's report. There, the defendant told Turner that when he went outside at approximately 9 p.m. to drive to the store to purchase lottery tickets, he found that his vehicle was missing. The officer also spoke with the defendant's girlfriend, Amy McVey, a Caucasian middle-aged female with blonde hair who resided at the Wharton Brook residence outside of which the car was reportedly stolen. The defendant told the officer that McVey was the last person to use his car before it was stolen. She reportedly had driven the vehicle to Walgreens earlier that evening.

The following day, at approximately 1:37 p.m., Officer Abel Gonzalez of the Wallingford Police Department was dispatched to recover a stolen motor vehicle that had been found on Quigley Road in Wallingford, approximately three miles from McVey's residence on Wharton Brook Drive. When he arrived on Quigley Road, Gonzalez discovered the defendant's white Chrysler 300 parked on the roadside with damage to its front end. The officer also noted what appeared to be black paint transfer on the front right corner of the vehicle. Inside the vehicle, which he found to be unlocked, Gonzalez found a wallet containing credit cards and identifying information that matched the name of the registered owner of the vehicle, defendant Jemal Bethea. He found the keys to the vehicle on the back seat. The license plate number of the defendant's vehicle was one digit different from the number Pecora had reported to authorities as the license plate number of the car involved in the evading incident on April 8.

On April 9, 2014, the defendant returned a phone call from Officer Gery. He told the officer that on the previous night he had been sleeping from 6 p.m. to 9 p.m. before he went outside and discovered that his vehicle was missing. He added that he might have dropped the keys to the vehicle without knowing it while he was bringing packages into his girlfriend's home.

The following day, April 10, 2014, the defendant filed an affidavit of vehicle theft with his insurance company, Omni. In his affidavit, the defendant indicated that the "exact location of the theft" was his residence at 57 Chidsey Drive in North Branford. He then explained the circumstances of the theft, however, as follows: "After coming back from Walgreens [and] picking up meds, at about 6:10 p.m. we went into my girlfriend's house with many bags from [the] store. Put everything away [and] I went upstairs [and] I took a nap. Waking up at about 9 p.m. I decided to go to the store [and] play my numbers. When I went outside I noticed the car was gone. I immediately called 911."

Later that same day, a claims representative from Omni took a recorded statement from the defendant regarding the theft over the telephone. In that statement, the defendant stated that the last time that he had driven his vehicle was at approximately 5:45 p.m. on April 8, when he and his girlfriend had gone to pick up a prescription. He noted that he had a receipt for the prescription and that it was time stamped at 6 p.m. The defendant stated that they came home, unloaded the vehicle, then went into the house, where McVey began to do laundry. The defendant continued: "I went upstairs ... about an hour and [a] half or even later ... I got up. I don't know what time, but looked at my phone calls and noticed, you know, what time I was up and everything. And that's when I decided like at 9:30 to go out to the store and play my lottery numbers. And when I went to go look outside, the vehicle was gone ...." He reiterated that the car was stolen from in front of his girlfriend's home.

On April 15, 2014, Officer Turner contacted the defendant with follow-up questions regarding the reported theft. The defendant told Turner that on the day his vehicle was stolen, he went to sleep at approximately 6:15 p.m. and woke up at 8:30 p.m. He said that McVey had taken the vehicle to Walgreens shortly before his nap to pick up a prescription and that he had a receipt from that errand, although he did not provide the receipt to Turner. Several days later, the defendant returned to the police station to meet with Turner. During that meeting, the defendant first stated that he alone was responsible for the vehicle and that he was the only one who ever drove it. Then he asked the officer to delete his previous report. The defendant further stated that he was mistaken about the visit to Walgreens, as McVey had used the car to run that particular errand on a different day.

On April 16, 2014, Officer Gery again spoke to the defendant in furtherance of the evading investigation. This time the defendant told the officer that his girlfriend had not been driving his car at the time of the evading incident and neither had he. In fact, he said, his girlfriend was at home taking a phone call on the date and time in question.

On September 11, 2014, the defendant was deposed by an attorney representing Omni. During the deposition, the defendant agreed that his affidavit of vehicle theft had been completed by an insurance agent in his presence and that he had had the opportunity to review the document for its accuracy before signing it. During the deposition, however, he noted that there were inaccuracies in the affidavit. Specifically, he stated that McVey did not go to Walgreens on the day his car was stolen. He explained that he had completed the affidavit three or four days after the incident occurred when...