State v. Johnson

171 Conn.App. 328

157 A.3d 120

STATE of Connecticut

v.Rashid A. JOHNSON

AC 39290

Appellate Court of Connecticut.

Argued November 17, 2016

Officially released March 7, 2017

Daniel J. Foster, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, Rocky Hill, assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Michael A. Pepper, New Haven, senior assistant state's attorney, and Lisa M. D'Angelo, assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Keller and Bear, Js.

DiPENTIMA, C. J.

The defendant, Rashid A. Johnson, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a–54a (a), felony murder in violation of General Statutes § 53a–54c, robbery in the first degree in violation of General Statutes § 53a–134 (a) (2) and carrying a pistol without a permit in violation of General Statutes § 29–35.¹ The defendant claims on appeal that the trial court erred in (1) admitting hearsay testimony into evidence and (2) excluding evidence that the police failed to properly investigate another party whom they considered a suspect. We disagree. Accordingly, we affirm the judgment of conviction.

The evidence at trial revealed the following facts. On October 21, 2012, at 7:50 p.m., patrol officers of the New Haven Police Department responded to a 911 call reporting that a person had been shot at Brendan Towers, an apartment complex located at 461 Whalley Avenue. Upon arrival, police officers located the victim, Christian Garcia, who resided at an apartment on the second floor of Brendan Towers and was a known marijuana dealer. Garcia was pronounced dead at the scene; the cause of death was a gunshot wound. The area was secured and detectives processed the crime scene in which, among items of physical evidence, they located and seized four spent .40 caliber cartridge casings, all of which had been fired from the same handgun. They also located and seized three fired bullets, one of which was embedded in a door frame and the other two bore traces of what appeared to be wallboard and/or paint; they observed walls that bore indications of bullet damage.

On the same date, at approximately 8:02 p.m., police received a report that the defendant walked into Yale–New Haven Hospital, Saint Raphael Campus, with a gunshot wound to his left knee.² At the hospital, the defendant told responding Officer Jason Jackson of the New Haven Police Department that while he was walking on Whalley Avenue he heard three to four gunshots and felt a pain in his leg and "took off" to the hospital. Acting on this information, Jackson went to canvass the area for a blood trail or spent shell casings, but found neither. He found no evidence indicating that a shooting had occurred at that location.

Detective Nicole Natale of the New Haven Police Department, who had been investigating the death of Garcia, went to the hospital to determine if the shootings of Garcia and the defendant were related. The defendant told Natale that he had been shot in front of the Southern Hospitality Soul Food restaurant on the corner of Whalley and Ellsworth Avenues, and that he had decided to travel on foot to the hospital because he had no cell phone to call for assistance. Detectives, however, examined the hospital surveillance camera footage, which showed the defendant arriving at the emergency room in an automobile. A subsequent investigation led police to the automobile owner, Tywan Samuels, who acknowledged that he had picked up the defendant on Norton Street and had driven him to the hospital on the evening of October 21, 2012.

On October 22, 2012, detectives interviewed Fernando Perez Morales (Perez), a resident of Brendan Towers, who was with Garcia moments before his death. During that interview, Perez provided the following information. On the morning of October 21, 2012, Perez bumped into Garcia in Brendan Towers at which time Garcia told him that he would call him later to come upstairs to his apartment to smoke marijuana together. When Garcia later called Perez, Perez left his first floor apartment and met Garcia in the hallway of the second floor. When Perez arrived, Garcia told him that he was meeting someone who was coming to purchase marijuana from him. Garcia explained that he wanted to have someone with him because he was concerned. When the customer arrived, Garcia was talking to someone who had called his cell phone. Perez described the customer as a young black man who was in his late teens to mid-twenties, stood several inches taller than Perez' height of five feet ten inches and was wearing a black hooded sweatshirt with a Monster Energy drink logo, black sweatpants and a "do rag" on his head. After Garcia hung up the phone, the man said he wanted eight bags of marijuana and asked Garcia to show him the product. Garcia handed the man seven bags of marijuana, the man handed them all back to Garcia and then pretended that he was going to take out money but instead pulled out a handgun. Garcia shoved the man into a corner. Perez fled down the stairwell to the first floor when he heard four or five gunshots.

During the interview, police showed Perez a photographic array to see if he could identify the man with the gun. Perez said he was not certain which photograph showed the man with the gun, but that photograph number three, which was a photograph of the defendant, looked most like him. During his trial testimony, Perez was also unable to say whether the defendant was the man he had seen with the gun and testified that he did not see the man fire the gun.

On October 23, 2012, after being released from the hospital, the defendant voluntarily went to the police station with detectives who conducted a video recorded interview. During the interview, the defendant was shown a photograph of Garcia in response to which he denied knowing Garcia and having any dealings with persons in the Brendan Towers. Next, the defendant denied having a cell phone, but provided the police with a number after telling them that he had lost the phone on the morning of October 21, 2012. Shortly after the defendant left the police station at noon, his cell phone, which had been inactive during his hospitalization, was activated and used to place a call to a phone that was registered to the mother of a female acquaintance of the defendant. In addition, the police obtained cell phone records from the defendant's cell phone that revealed several outgoing and incoming calls throughout the entire day of October 21, 2012. The cell phone records also confirmed that there was a cell phone call between the defendant and Garcia moments prior to the murder. Moreover, detectives interviewed Garcia's father who, after being shown seven photographs, identified the photograph of the defendant as a person who had stayed at Garcia's apartment in Brendan Towers in the past.

After further investigation, on May 6, 2013, the police arrested the defendant pursuant to a warrant charging him with Garcia's murder. In February, 2014, an intelligence officer employed by the Department of Correction reviewed a letter that had been handwritten by the defendant while he was incarcerated at the Northern Correctional Institution. The letter was dated February 6, 2014, and addressed to Christopher Graham by his street name "Ugg" and was contained in an envelope addressed to Graham's girlfriend in New Haven. The letter provided in pertinent part: "They don't got shit. It's just this one dumb ass Poppy³ that live in them buildings where the freaking shit went down. His name Fernando Perez. His brother stay up there, he live wit[h] him. Ro might know what door he live at, but be smart bro, because wit[h]out him, they hit,⁴ because wit[h] him they all set ...." The defendant put his correct name and inmate number on the letter. The parties stipulated that this letter had been written by the defendant.

Following a trial, the jury returned a verdict finding the defendant guilty of murder, felony murder, robbery in the first degree and carrying a pistol without a permit.⁵ The court sentenced the defendant to forty years of incarceration, followed by ten years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court committed harmful error in admitting hearsay testimony into evidence. Specifically, the defendant challenges the admission of certain portions of Jackson's testimony in which he stated that no one in the Southern Hospitality Soul Food restaurant reported hearing or seeing gunshots. The defendant claims this statement suggested to the jury that one or more restaurant patrons communicated to Jackson, whether verbally or nonverbally, that they had not heard or seen gunshots fired, which was offered to prove that these patrons had not, in fact, heard or seen gunshots fired.

The following additional facts are relevant to our analysis. As previously noted, Jackson was the police officer who responded to the hospital to investigate the report of a gunshot victim, namely, the defendant. After speaking with the defendant, who reported being shot on Whalley Avenue near the Southern Hospitality Soul Food restaurant, Jackson left the hospital to canvass Whalley Avenue between Ellsworth Avenue and Norton Street in an attempt to locate the crime scene, whether it be "any shell casings from a weapon ... a blood scene ... and [to] ... try to interview any people that may have witnessed something."

During direct examination of Jackson, the prosecutor asked whether he had received any information while canvassing in and around the Southern Hospitality Soul Food restaurant. In response, Jackson began to testify: "The only information I got was somebody put" before he was interrupted by defense counsel's objection. In considering defense counsel's objection, the trial court stated: "Well, I think the answer—the question put...