State v. Fleury

135 Conn.App. 720

42 A.3d 499

STATE of Connecticut

v.Rinaldo FLEURY.

No. 32183.

Appellate Court of Connecticut.

Argued Jan. 31, 2012.

Decided May 22, 2012.

Michael Zariphes, special public defender, for the appellant (defendant).

Adam E. Mattei, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and C. Robert Satti, Jr., supervisory assistant state's attorney, for the appellee (state).

LAVINE, ALVORD and FLYNN, Js.

ALVORD, J.

The defendant, Rinaldo Fleury, appeals from the judgment of conviction, rendered after a jury trial, of illegal sale of a pistol or revolver in violation of General Statutes § 29–33(c) and carrying a pistol or revolver without a permit in violation of General Statutes § 29–35. On appeal, the defendant claims that (1) the trial court violated his constitutional right to an impartial jury when it improperly severed the charges alleged in the original four count information and (2) the state failed to provide sufficient evidence that the defendant committed the crimes for which he was convicted. We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Detective Arthur Huggins of the Milford police department had been working in an undercover capacity as part of a federal Drug Enforcement Administration (administration) investigation led by Agent Dana Mofenson. In his undercover role, Huggins had been communicating with Scott Similien and had met with him approximately a dozen times. On June 27, 2008, Huggins arranged to purchase a handgun from Similien and told Similien that he believed that he would be able to resell the handgun at the Pilot truck stop in Milford. After speaking by cell phones, Huggins and Similien agreed to meet on Linwood Avenue in Bridgeport for the exchange. Similien and Huggins agreed on a price of $500. The administration provided Huggins with $500 divided into five bundles of $100 each in varying denominations. In anticipation of the meeting, Mofenson positioned agents and Milford police detectives in six or seven unmarked cars around the Linwood Avenue area. The officers and agents were equipped with binoculars with which to view Similien and any other persons accompanying him for the transaction.

At approximately 5:45 p.m., Huggins parked his truck on Linwood Avenue to wait for Similien to arrive with the gun. Huggins had two different recording devices in his vehicle, a Kel monitoring device and a digital recorder. One recording device was located in the dashboard of the truck and the other was attached to the sun visor on the driver's side of the vehicle. Huggins would speak into the Kel monitoring device in order to communicate with the other members of the investigation team prior to the transaction. He also communicated with Mofenson via cell phone.

Later that afternoon, a black 1998 Infiniti sedan bearing license plate number 558UZP pulled up on the left side of Huggins' truck, in the middle of the road. Huggins stated aloud the license plate number of the Infiniti for the benefit of the other team members who could hear him over the Kel device. Similien exited the Infiniti and came up to the driver's side door of Huggins' truck. Another person later identified as the defendant exited the Infiniti and came around to the passenger side, opening the door. A third man later identified as Fritze Dorce stayed in the driver's seat of the Infiniti with the engine idling. Special Agent Rodney George had a clear view of the transaction and the defendant through his binoculars. Huggins provided the money to Similien as the defendant took a brown bag from the waistband of his pants, throwing the bag on the passenger seat of Huggins' truck. Huggins picked up the bag, looked inside, saw the gun and told Similien and the defendant “it looks good.” The brown bag contained a .22 caliber handgun which laboratory tests later showed was fully operational.

During the exchange, the defendant, Similien and Huggins had a brief conversation at which time their voices were caught on the recording devices in Huggins' truck. While speaking to the defendant, Huggins noticed a green tattoo featuring lettering on the left side of the defendant's neck. Similien and the defendant then returned to the Infiniti which drove to the end of the street and turned left. Huggins brought the handgun in the brown bag to Mofenson and then entered George's vehicle.

Special Agent Daniel Dobas followed the Infiniti as it turned left on Norman Street, as it turned left on Beechwood and then as it turned left on Wood where it stopped at 5 Elmwood, an address that the agents had monitored many times before. None of the three men exited the Infiniti at 5 Elmwood, but a man identified as Junior Etienne came out of the house and approached the vehicle on the passenger side. Dobas continued to follow the Infiniti after it left 5 Elmwood and continued to 123 Center Street, another location that the agents had been monitoring. None of the men exited the Infiniti at that location and no one entered the vehicle. The Infiniti then drove up Center Street toward Washington Avenue.

Dobas used a two-way radio to communicate with Bridgeport police Officer Jason Amato, who was in an unmarked police car on the east side of Bridgeport, and asked Amato to stop the Infiniti. Amato crossed the East Washington Bridge and observed the Infiniti traveling from Center Street onto Washington Avenue. Amato followed the Infiniti as it proceeded onto Main Street and, after the Infiniti failed to use a turn signal, Amato stopped the vehicle at the VIP Car Wash on Main Street.

After it was confirmed that the vehicle had been stopped, George and Huggins drove past the car wash. On the basis of this drive-by viewing, Huggins identified the car and the men as those involved with the gun sale. It was sunny that afternoon, so Huggins was able to get a good view of Similien and the defendant standing outside the vehicle at the car wash. Amato recognized all three of the men in the Infiniti, including the defendant, but also viewed each man's state issued identification card. Amato then allowed the vehicle to leave the scene. The police later secured a warrant for the defendant's arrest, and he arranged with the police to turn himself in. At no time did the defendant ever apply for or possess a permit to carry a pistol nor is there any record that he ever applied to the state for permission to sell a pistol.

The state charged the defendant in a four count information with violation of the Corrupt Organizations and Racketeering Activity Act (act) pursuant to General Statutes § 53–395(c),¹ conspiracy to violate the state dependency producing drug laws pursuant to General Statutes §§ 53a–48, 21a–277 (a) and 21a–279 (a), illegal sale of a pistol or revolver in violation of § 29–33(c) and carrying a pistol or revolver without a permit in violation of § 29–35. On November 16, 17 and 18, 2009, the state and the defendant conducted voir dire. During voir dire, the court informed the venirepersons that the trial would be held December 14 through 18, 2009, and would not interfere with the holidays. All four counts of the information were read to the venirepersons and the venirepersons heard mention of the Stack Boys, a gang to which the defendant allegedly belonged.

Due to a prior trial that lasted longer than expected, however, the court was not able to commence the trial until December 16, 2009. On the day before trial began, the court sua sponte determined that severing the charges and holding separate trials for the gun charges and drug charges would ensure that the jury selected in November would be able to hear at least one trial in its entirety. At least two of the jurors were not able to continue service beyond the original time represented to them by the court. The defendant had filed a speedy trial motion, and the court expressed the belief that severing the charges was the only way to ensure that at least one of the trials would be concluded before the end of the year.

The state objected to severance, arguing that the conspiracy was the reason that the defendant was involved in the gun sale. Defense counsel stated that he approved of severance because it would avoid any spillover prejudice between the gun and drug charges. Defense counsel noted, however, that the defendant himself objected to severance. Defense counsel told the court: “As the defense counsel in this matter who is charged with the responsibility of defense trial strategy, I can tell the court that I, the defense has no objection to bifurcation and is in favor of it for reasons in addition to what the court indicated but for principal reasons to attempt to preclude spillover prejudice. I've explained this to [the defendant]. [The defendant] on the other hand wants to have everything tried together.... I've explained to him, however that—at the beginning of my representation of him, I told him that there are about two things or three things he absolutely controls; whether to plead guilty or not, whether to have a jury election or whether or not to testify. I also explained to him that within the confines of our legal system, since I determine trial strategy in the matter that I thought that bifurcation would be in his best interest. And so as a consequence of that or in conclusion, I'm telling the court that even though [the defendant] doesn't agree with me, the defense, on the other hand, believes that bifurcation is the best way to proceed.”

The court then explained to the defendant why it would be severing the charges because the defendant told the court he did not understand the purpose of the severance. The defendant continued to object to severance despite the court's explanation and his counsel's approval. The court then severed the charges and granted the defendant's motions in limine to preclude evidence tha...