State v. Freeman

STATE OF CONNECTICUT v. JASON FREEMAN

AC 32422

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Date: December 13, 2011

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Submitted on briefs September 6—officially released December 13, 2011

(Appeal from Superior Court, judicial district of

Fairfield, Hauser, J.)

Lisa A. Vanderhoof, special public defender, submitted a brief for the appellant (defendant).

Linda Currie-Zeffiro, assistant state's attorney, John C. Smriga, state's attorney, and Pamela J. Esposito,senior assistant state's attorney, submitted a brief for the appellee (state).

Opinion

MIHALAKOS, J. The defendant, Jason Freeman, appeals from the judgment of conviction, rendered following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), assault of a victim sixty years of age or older in the first degree in violation of General Statutes § 53a-59a (a) (1), assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant claims that the trial court (1) abused its discretion by granting the state's motion to reopen pretrial suppression hearing testimony after the defendant identified a possible deficiency in the state's case, and (2) improperly denied his motions to suppress statements and evidence obtained following his arrest by law enforcement officials.

We conclude that the court did not abuse its discretion by reopening pretrial suppression hearing testimony and did not improperly deny the defendant's motions to suppress, and therefore, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of March 31, 2008, the eighty-two year old victim, Eli Caviness, was robbed at gunpoint while seated in his parked vehicle next door to a multifamily home at 1016 Stratford Avenue in Bridgeport. The victim was shot in the shoulder during the course of the robbery. The following day, the victim gave a statement to Ada Curet and Lynn Gorman, detectives with the Bridgeport police department, identifying his assailant as a black male between the ages of twenty-four and twenty-five and approximately five feet, seven inches or five feet, eight inches in height. On the basis of this conversation, Curet and Gorman returned to the scene of the crime to ascertain the identity of the assailant. The detectives spoke with Tiyonna Beckwith, who was a cousin of the defendant, and a resident of the multifamily home at 1016 Stratford Avenue. Beckwith, who had also spoken with Curet on the day of the robbery and shooting, identified the defendant as a possible suspect, and provided the detectives with his name and physical description. On the basis of that information, Curet was able to obtain the defendant's photograph and background information through the police database.

Later that day, law enforcement received another tip: an anonymous call to the police communication center indicated that the person responsible for the robbery and shooting of the victim was en route to the local bus station via taxicab. The caller provided the name of the alleged suspect and indicated that he was wearing a dark colored hooded sweatshirt. On the basis of that information, Curet and Gorman, along with other lawenforcement officers, went to the bus station to intercept the suspect. They observed two black males, who were carrying large duffel bags, exit a taxicab. Curet identified herself as a law enforcement officer, and called out to the men to stop. Both men ignored her command and kept walking. The police then surrounded the two individuals, and asked them to identify themselves. One of the men indicated that his name was James. Curet, however, who was carrying a photograph of the defendant, was able to determine that this man was, in fact, the defendant. Questioning of the two individuals revealed that the other man present with the defendant was his brother, Patrick Freeman. The two were taken into custody.¹ During the course of the arrest, $1236 was recovered from the defendant's person.

At the detective bureau, Curet informed the defendant of his constitutional rights, obtained a written waiver of those rights, and thereafter recorded a statement in which the defendant admitted robbing and shooting the victim. The defendant specifically indicated that he smashed the victim's driver side window, demanded the victim's money at gunpoint, and that when the victim resisted, he reached into the victim's pocket and stole cash from his person, cutting his hand on the window's broken glass in the process. The defendant claimed that his ''gun went off,'' and that he, therefore, inadvertently shot the victim in the right shoulder.

The police also obtained a written statement from Beckwith that detailed her recollection of events immediately following the crime. She indicated that she heard a gunshot, which prompted her to look out her bathroom window at 1016 Stratford Avenue and see a person in a grey, hooded sweatshirt and blue jeans running away from the van that she recognized as belonging to the victim. Ten minutes later, she received a call from the defendant, who requested that she pick him up at a location near the scene of the shooting. Beckwith heeded his request and later drove the defendant to his brother's home. She also indicated that later that evening she overheard the defendant, who was talking on his cell phone walkie-talkie, say that he had shot someone earlier that day.

Prior to the state's case-in-chief, the defendant filed a motion to suppress evidence and a separate motion to suppress statements he made to the police subsequent to his arrest. These motions were based on his claim that law enforcement acted without a reasonable and articulable suspicion to stop him and probable cause to arrest him. On January 13, 2009, the court conducted an evidentiary hearing on those motions. The state called Curet, whose testimony detailed the investigation of the crime, including the defendant's ultimate arrest and admission. At the end of that hearing, the court indicated that it would make a ruling onthe motions either the next day, or shortly thereafter; however, the following day, the state made an oral motion to reopen the testimony on the suppression hearing. That motion to reopen was in response to the defendant's argument that the state had failed to produce sufficient evidence to establish how law enforcement developed the defendant as a suspect. On January 15, 2009, the court granted the state's motion to reopen and subsequently heard testimony from Gorman. Gorman's testimony provided additional information explaining how the police developed the defendant as a suspect. The next day, the court denied the defendant's motions to suppress. The matter then proceeded to trial. This appeal followed.

I

On appeal, the defendant claims that the court abused its discretion by granting the state's motion to reopen pretrial suppression hearing testimony, and, that it improperly denied his motions to suppress statements and evidence. We address whether the state abused its discretion by reopening pretrial suppression hearing testimony before considering the propriety of the court's decision to deny the defendant's motions to suppress. In regard to the former, we ''recognize the wide discretion enjoyed by the trial court to permit the reopening of a case after either side has rested. . . . The reopening of a criminal case either to present omitted evidence or to add further testimony after either of the parties has rested is within the sound discretion of the [t]rial [c]ourt. . . . [T]he trial court must be vested with discretion to permit reopening when mere advertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur.'' (Citations omitted; internal quotation marks omitted.) State v. Allen, 205 Conn. 370, 380, 533 A.2d 559 (1987); see also State v. Brigandi, 186 Conn. 521, 546, 442 A.2d 927 (1982).

The following additional facts are necessary for the resolution of this claim. After the state presented its evidence at the hearing on the motions to suppress, the defendant argued that the state had failed to meet its burden of proof with regard to establishing reasonable suspicion and probable cause. Specifically, the defendant argued that the state offered no testimony as to how law enforcement developed him as a suspect. The defendant argues that at that juncture in the case, the record was devoid of testimony indicating ''what prompted . . ....