State v. Cecil

194 Conn.App. 446

221 A.3d 481

STATE of Connecticut

v.Lashawn R. CECIL

AC 42097

Appellate Court of Connecticut.

Argued September 11, 2019

Officially released November 19, 2019

Christopher Y. Duby, North Haven, assigned counsel, with whom was Robert L. O'Brien, assigned counsel, for the appellant (defendant).

Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Michael L. Regan, New London, state's attorney, and Stephen M. Carney, senior assistant state's attorney, for the appellee (state).

Keller, Bright and Bear, Js.

KELLER, J.

The defendant, Lashawn R. Cecil, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and the judgment of conviction, rendered following a trial to the court, of criminal possession of a firearm in violation of General Statutes § 53a-217. On appeal, the defendant claims that the trial court erroneously (1) admitted video recorded statements into evidence under State v. Whelan , 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and, simultaneously, admitted those same statements as impeachment evidence without instructing the jury how to evaluate that evidence, and (2) admitted into evidence a handgun magazine that was irrelevant, highly prejudicial, and misleading. We affirm the judgment of the trial court.

From the evidence adduced at trial, the jury reasonably could have found the following facts. At the time of the events underlying this appeal, the victim, Jaclyn Wirth, resided at the Mohegan Apartments located in Norwich. On the evening of December 13, 2011, the defendant was at the Mai Thai bar in Norwich with William Collelo and Harold Butler. Also present at the bar was an individual named Ezekial "Junie" Boyce. Boyce owed Butler a debt of approximately $160 for a prior sale of narcotics. The defendant, Collelo, and Butler left the bar at approximately 1 a.m. on December 14, 2011. The three men left in Collelo's rental car, a black Chrysler 300 with Florida license plates.

After leaving the bar, Collelo drove the three men to the Mohegan Apartments because Collelo had informed Butler that Boyce often spent time at the apartments, and Butler wanted to collect the money owed to him by Boyce. Collelo parked his vehicle outside the Mohegan Apartments, and Butler told the defendant to go see Boyce to collect the money that he owed Butler. The defendant exited the vehicle and approached the Mohegan Apartments.

At approximately 1:30 a.m., the defendant entered the building of the apartment complex in which the victim resided. Seconds after the defendant entered the building, a neighbor, Arthur Murray, heard a gunshot, a woman scream, and then four or five more gunshots.

Subsequently, the victim placed a 911 call, reporting that she had been shot. Norwich police received a call from dispatch at approximately 1:40 a.m. and responded to the scene. En route to the scene, responding Police Officer Mark Dean observed a dark colored Chrysler 300 with Florida license plates parked in a driveway on Boswell Avenue. At the scene, officers found the victim bleeding while lying on the floor of the main hallway of her apartment. The victim told a responding officer that, prior to the shooting, she had been lying in bed, heard a loud bang, and left her bed to investigate. She further said that when she entered the hallway from her bedroom, she "kept getting hit." An ambulance transported the victim to Backus Hospital where she was pronounced dead at 2:50 a.m. on December 14, 2011, as a result of multiple gunshot wounds.

Immediately following the shooting, the defendant, out of breath from running, returned to Collelo's vehicle. The defendant told Collelo and Butler that he "handled it" and they should leave. Collelo drove the three men from the scene, and on Boswell Avenue they saw a police cruiser approaching from the opposite direction with its lights on. At the defendant's direction, Collelo parked the vehicle in a driveway as the police cruiser passed. While the vehicle was parked in the driveway, the defendant "said something about shooting a gun" and told Butler that "something went wrong ...." Collelo then drove the vehicle to the defendant's residence on Shetucket Avenue. Butler walked to his residence and Collelo and the defendant entered the defendant's residence. The defendant went upstairs with Evette Nieves, with whom he shared the residence. The defendant and Nieves then left the residence at approximately 2 a.m. and Collelo slept on the couch.

During an investigation of the scene, law enforcement found nine bullet holes in the victim's apartment door and six corresponding defects caused by bullets in the victim's apartment. Investigators also found nine spent shell casings, one live shell, and five brass colored projectiles. Gregory Klees, a firearms and tool mark examiner from the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives Laboratory (ATF), testified that the same firearm had fired all recovered ballistics evidence and that the firearm was likely a Beretta nine millimeter semiautomatic pistol.

Following the victim's murder, at approximately 2 a.m. on December 14, 2011, Luis Burgos, the defendant's neighbor, was sitting in front of his house when the defendant approached him, asked whether he was interested in purchasing a firearm, and sold him a nine millimeter firearm. Later that morning, Burgos learned that the victim had been shot and killed. Burgos, who was on parole, feared that his residence would be searched and the possession of the firearm would place him in violation of his parole. Burgos drove to a fishing area on the Thames River, dismantled and unloaded the firearm, and threw the pin, magazine, slider, and bullets into the river.

Burgos later was convicted and sentenced for an unrelated armed robbery committed on March 30, 2013. Hoping to reduce his own sentence and eliminate any personal affiliation with the victim's murder, Burgos contacted law enforcement in 2014 and shared the information he knew about the victim's murder. After he provided the information to police, law enforcement transported Burgos to the area near the Thames River where he claimed to have disposed of the firearm pieces. The Connecticut state police dive team performed a five day search of the Thames River and recovered a handgun magazine. The dive team found the magazine in approximately ten feet of water and approximately sixty-four feet from railroad tracks that ran alongside the shore. At trial, when asked about any markings on the gun the defendant had sold him, Burgos responded, "I think it said Llama; I think that's what it said."

Klees examined the magazine, which was heavily corroded due to water exposure, and determined that it was either an aftermarket or a replacement magazine that, prior to being submerged in the Thames River, likely could have fit a nine millimeter Beretta handgun.

Klees also concluded that the magazine would not have likely fit a Llama handgun.

Following the victim's murder, the defendant disclosed his involvement in the shooting to multiple parties. Prior to the shooting, on December 13, 2011, the defendant asked Jeremy Dawson if he wanted to participate in a robbery of Boyce. Dawson declined, and on the day after the shooting had occurred, the defendant told Dawson that he had gone to the Mohegan Apartments to find Boyce. Further, the defendant told Dawson that he had knocked on a door and a female asked who was there. When the defendant could not enter the apartment, he shot through the door. When Dawson later learned of the victim's death, he thought that the victim was the female to whom the defendant earlier had referred.

The defendant also made a reference to the victim's murder to his former girlfriend, Samantha Whitcher. In Whitcher's words, during an argument, the defendant told her that if she ever left him "he'd kill [her] like he supposedly killed the girl in Norwich." After the defendant and Whitcher ended their relationship, the defendant also told Whitcher that he kept a firearm at Nieves' residence.

In 2015, the defendant was in a prison transport van when a prisoner, Jesse Kamienski, overheard the defendant telling another prisoner "about how he was arguing with a woman to get into a door, and he couldn't get in so he fired shots through the door." The prisoner to whom the defendant was speaking refused to confirm Kamienski's account, instead stating, "I'm not going to tell on my friend."

Additionally, the defendant told his friend, Andrew Aviles, that he had "hit" the victim by mistake. The defendant further explained, "[Collelo] drove me to the spot on Baltic Street. I knocked on the door a few times.

I thought I heard someone [cocking] back a hammer, so I shot like nine shots through the door and took off .... I guess she was just unlocking the door or something."

Finally, in an interview with the lead investigator on the case, the defendant revealed that he knew the victim's killing involved shooting through a door, despite the fact that the police previously had not alerted the defendant to this detail of what had occurred during the shooting.

The defendant was arrested on February 4, 2015, and subsequently charged with murder in violation of General Statutes § 53a-54a (a), and criminal possession of a firearm in violation of General Statutes § 53a-217. Following a jury trial, the jury found the defendant guilty of murder, and the court found him guilty of criminal possession of a firearm. The defendant received a total effective sentence of fifty-eight years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erroneously admitted video recorded statements into evidence under State v. Whelan , supra, 200 Conn. 743, 513 A.2d 86, and, simultaneously, admitted those same statements as impeachment evidence without...