State v. Gray-Brown

188 Conn.App. 446

204 A.3d 1161

STATE of Connecticut

v.Dovante GRAY-BROWN

AC 41385

Appellate Court of Connecticut.

Argued October 10, 2018

Officially released March 12, 2019

Pamela S. Nagy, assistant public defender, for the appellant (defendant).

Laurie N. Feldman, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Colleen P. Zingaro, senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Flynn, Js.

PRESCOTT, J.

The defendant, Dovante Gray-Brown, appeals from the judgment of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant claims on appeal that (1) the trial court improperly denied his motion to suppress several items of evidence taken from his bedroom because his mother lacked authority to consent to a search of his bedroom, (2) the court abused its discretion by admitting those same items into evidence because they were not relevant and were more prejudicial than probative, (3) there was insufficient evidence to prove, as required for the crime of carrying a pistol without a permit, that the defendant possessed a firearm that had a gun barrel less than twelve inches in length, (4) the court improperly denied the defendant's request for a third-party culpability instruction, and (5) the court improperly refused to question a juror regarding an issue of juror partiality that was raised after conviction. We agree with the defendant that there was insufficient evidence to prove, as required by § 29-35 (a), that the length of the barrel of the firearm used to commit the crime was less than twelve inches. Accordingly, we reverse the judgment of conviction as to that count with direction to render a judgment of acquittal on the charge of carrying a pistol without a permit. We are not persuaded, however, by the remainder of the defendant's claims and, accordingly, affirm the judgment of conviction in all other respects.

The facts, as could have been reasonably found by the jury, and procedural history, are as follows. The defendant and his friend, Dominick Gonzalez, arranged a drug deal with the victim, Dewayne Gardner, Jr., in order to rob him of drugs and money. Gonzalez knew the victim because the victim regularly supplied him with drugs that he then resold. Gonzalez asked the victim to meet him at 178 Poplar Street in Bridgeport so that he could purchase drugs from him.

In the early morning of December 16, 2013, the victim, believing he was going to sell narcotics to Gonzalez, drove a rental car to 178 Poplar Street. Prior to the meeting, the victim had exchanged text messages with Gonzalez. Gonzalez texted the victim that he was on his way to make the purchase and later texted that he had arrived at 178 Poplar Street. Gonzalez, however, had sent these text messages from several miles across town. Gonzalez, who was unable to get a ride to the agreed upon location, did not want to inform the victim that the defendant would be engaging in the transaction because the victim trusted Gonzalez more than the defendant.

In addition to exchanging text messages with the victim, Gonzalez was also in contact with the defendant.

Gonzalez exchanged more than one dozen calls with the defendant between 12:30 a.m. and 3 a.m. The defendant was at his home on 1022 Hancock Avenue in Bridgeport during these calls. Hancock Avenue runs parallel to Poplar Street, with direct access to 178 Poplar Street through a vacant lot. The victim was in his car when the defendant arrived, with a firearm, to carry out the robbery. During the robbery, the defendant fired multiple gunshots into the car from the front passenger side, striking the victim.

Gonzalez later called the defendant to see if he had succeeded in the robbery. The defendant admitted to Gonzalez that he had shot the victim. The defendant also told Gonzalez that, after shooting the victim and fleeing the scene, he returned to take the victim's phone in order to dispose of it.

The police were called to the scene to respond to a report of a car accident. After being shot, the victim apparently attempted to flee the scene, but his vehicle hit a parked car at 211 Poplar Street. The police found an unspent nine millimeter bullet and two spent shell casings in the street at 178 Poplar Street. In the victim's car, they found bulletholes, bullets, and shell casings showing that a gunman had shot into the car from the passenger side. The victim sat dead in the driver's seat, with multiple gunshot wounds.

Although the victim habitually carried a cell phone and money with him, no wallet, money, cell phone, or drugs, other than a small amount of marijuana, were found in the car. A pocket of the victim's pants was turned inside out.

After obtaining the victim's phone records, the police spoke with Gonzalez and seized his phone for evidence. The police arrested Gonzalez on a charge of felony murder on December 21, 2013. Gonzalez initially lied to the police to protect himself and the defendant, but eventually cooperated with police and testified at trial pursuant to a plea deal.

Gonzalez told police that they could find ammunition that he and the defendant had been trying to sell in the basement of the multifamily house in which the defendant lived on the third floor. After obtaining consent from the owner of the house, the police searched the basement and did, in fact, find ammunition, as well as the sawed off barrel of a gun. A few days later, after obtaining consent from the defendant's mother to search the defendant's bedroom, the police found, inter alia, an electronic scale, rubber gloves, and a Remington ammunition tray for nine millimeter bullets in his room.

Forensic testing of the bullets and casings found at the crime scene indicated that they were fired from the same firearm. The bullets and casings were manufactured, however, by three different companies and differed in metal, shape and stampings.

The defendant eventually was charged with felony murder, robbery in the first degree and carrying a pistol without a permit. On November 30, 2016, the jury found the defendant guilty of all charges. On the conviction of felony murder, the court, Kahn, J. , sentenced the defendant to forty-five years of incarceration and five years of special parole. Additionally, the court sentenced the defendant to a concurrent ten year term of incarceration on the count of robbery and a concurrent five year term of incarceration for carrying a pistol without a permit. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence collected from his bedroom because the police illegally had searched his room without a search warrant. Specifically, the defendant contends that the trial court improperly concluded that his mother had the authority to consent to the search of his bedroom and that she did so voluntarily. According to the defendant, the warrantless entry by police into his bedroom violated his constitutional rights, and, therefore, the evidence seized from this search should have been suppressed. We disagree.

In its oral decision on the defendant's motion to suppress, the court found the following additional facts. At approximately 6 a.m. on January 11, 2014, police officers arrived at the defendant's residence to execute an arrest warrant for the defendant charging him with felony murder. Approximately eight detectives and four uniformed officers arrived at the residence.

The defendant's mother, Claudette Brown, opened the door. The officers advised her that they had a warrant to arrest the defendant on the charge of felony murder. Brown told them that he was not home and gave the officers verbal consent to search the home for him. After searching the apartment and not locating the defendant, many of the law enforcement officers departed in an attempt to find the defendant at his girlfriend's house, where Brown said he might be. The only officers who remained at the defendant's residence were Lieutenant Christopher Lamaine and two police detectives.

Brown identified the defendant's bedroom to the officers. Lamaine noticed that the door was open and that the inside of the room was visible.¹ Brown was cooperative and gave permission to the officers to search the bedroom. Brown was calm and did not have difficulty communicating with the officers. Brown was aware that the police were investigating the homicide for which they had obtained an arrest warrant for her son. Although the officers carried weapons at the time of the search, at no point did they unholster their weapons during their initial search for the defendant or during the subsequent search of his bedroom.

After Brown gave verbal consent to search the defendant's bedroom, Lamaine left the apartment to retrieve a consent form from his vehicle, which Brown subsequently signed.² After reviewing the form with Brown, and observing her reading and signing it, the officers began to search the defendant's bedroom. The detectives seized a number of items from the bedroom, including an ammunition tray, gloves, and an electronic scale.

We turn next to the well established law and standard of review that governs the defendant's claim. "A warrantless search is not unreasonable under either the fourth amendment to the constitution of the United States or article first, § 7, of the constitution of Connecticut if a person with authority to do so has freely consented to the search.... The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so.... The state must affirmatively establish that the consent was voluntary; mere acquiescence to a claim of lawful authority is not...