State v. Milner

197 Conn.App. 763

232 A.3d 1

STATE of Connecticut

v.Chiffon MILNER

AC 40322

Appellate Court of Connecticut.

Argued January 23, 2019

Officially released June 2, 2020

Richard E. Condon, senior assistant public defender, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Sheldon and Moll, Js.^*

SHELDON, J.

The defendant, Chiffon Milner, appeals from the judgment of conviction, following a trial to the court, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). On appeal, the defendant claims that the evidence was insufficient to sustain his conviction because (1) the court improperly relied on his inculpatory statements to a former friend, Kevin Barco, in the absence of substantial independent evidence corroborating the trustworthiness of those statements, in violation of the corpus delicti rule, and (2) even if the state satisfied the requirements of the corpus delicti rule with respect to the defendant's statements to Barco, Barco's testimony and that of the state's other witnesses was too unreliable to support the defendant's conviction. We affirm the judgment of the trial court.

The state presented the following evidence. In the early morning hours of July 12, 2014, a group of people were drinking alcohol, playing music, and gambling in the parking lot/courtyard of a U-shaped apartment complex located at 30 Auburn Street in Hartford. A three-family residence located at 18 Auburn Street was adjacent to the parking lot/courtyard and driveway of 30 Auburn Street. Rhonda Burney, who lived on the second floor of 18 Auburn Street, was awakened at approximately 4:30 a.m. on July 12, 2014, by the sound of "[a]rguing." When Burney went to the front porch of her apartment to investigate, she saw two individuals arguing. She then saw one of the two individuals (the shooter), whom she could not later identify or describe, shoot at the other individual (the victim) with a gun, four or five times in rapid succession, from where he was standing by a mailbox in front of 30 Auburn Street. Immediately thereafter, she heard the victim, who was later identified as Tyshawn Crawford, yell out that he had been shot, then saw him fall to the ground where he had been standing, directly across the street from the shooter, in front of 17 Auburn Street. Burney promptly dialed 911 on her cell phone, then went outside to assist the fallen victim. She never saw a weapon on or near the victim at any time. Burney later told the police that she had seen someone running away from the scene of the shooting but she "didn't give any description because there was a bunch of people that ran."

Melanie Solis, who lived on the third floor of the three-family residence at 18 Auburn Street, also was awakened in the early morning hours of July 12, 2014, by the sound of arguing outside the building. When she looked out of a window in the front of the building, she saw a man with braided hair, who was wearing a white tank top, standing by the mailbox in front of 18 Auburn Street and pointing a gun in the air. She then heard the man ask: "What [are] you going to do? What [are] you going to do?" After running away from the front window toward the back of the residence, Solis heard five gunshots ring out in rapid succession. She then looked out of her kitchen window in the front of the building and saw the shooter, who was still wearing a white tank top, run to and enter a black car, in which he drove away in the direction of Winchester Street. At that time, as the victim lay on the ground across the street, Solis saw several people "fleeing into their houses." She then directed her mother to call 911. While her mother was on the phone with the 911 dispatcher, Solis informed her mother that the shooter had been shirtless when he fled the scene.¹ She did not talk to the detectives herself because she "was scared."

Officer Michael Dizaar of the Hartford Police Department responded to the scene. He first examined the victim, who was still lying on the ground in front of 17 Auburn Street and could not speak. Dizaar noticed a small hole in the victim's neck and a hole in the lower back of his shirt. The victim was transported to the hospital, where he was pronounced dead.

Dizaar then canvassed the neighborhood for information about the shooting, but encountered "some resistance" to his investigative efforts. He spoke with Burney, however, who reported that she had seen a shirtless man running away from the scene toward Westland Street. Officers found blood near a dumpster on the pavement of the driveway of 30 Auburn Street and on the front yard of 17 Auburn Street. They also found five .40 caliber shell casings on the driveway of 30 Auburn Street and a white shirt with bloodstains on it, size XXL, in the northwest corner of the courtyard/parking lot of 30 Auburn Street.

An autopsy later revealed that the cause of the victim's death was a single gunshot wound to the chest by a bullet that penetrated his right lung before exiting his body through the middle of his back. No bullet was recovered from the victim's body during the autopsy.

Forensic testing of blood samples recovered from the driveway of 30 Auburn Street and from the large bloodstain on the front of the white shirt recovered from the courtyard at that address revealed that both samples had been left by a person whose DNA profile was consistent with the defendant's profile but inconsistent with that of the victim. The expected frequency of such a DNA profile in the general population was less than one in seven billion. By contrast, forensic testing of a different blood sample taken from a separate bloodstain on the interior collar and right shoulder area of the same white shirt revealed that it contained a complex mixture of DNA profiles, potentially including the victim's profile, but definitely not including the defendant's, thereby eliminating the defendant as a possible contributor to that sample. Furthermore, separate forensic testing of a mixed sample of DNA removed postmortem from the fingernails of the victim's left hand revealed multiple DNA profiles consistent with the profiles of both the defendant and the victim, thus making each of them a possible contributor to that sample. Finally, forensic testing of a particle removed from the bloodstained white shirt found in the courtyard of 30 Auburn Street revealed the presence of antimony and barium, two of the three essential elements necessary to establish the presence of gunshot residue. Testing of that particle did not reveal the presence of lead, the third essential element of gunshot residue.

The investigation caused the lead investigator, Michael Rykowski, a detective with the Hartford Police Department, to suspect that the defendant was the person who had shot and killed the victim. He subsequently interviewed the defendant, who denied any involvement in the shooting but admitted that in the overnight hours of July 11 and July 12, 2014, he had been smoking marijuana and drinking alcohol at 30 Auburn Street when he and the victim had a physical altercation, during which the defendant's white V-neck T-shirt had been removed. Although the defendant initially told Rykowski that he had left 30 Auburn Street on foot in the early morning hours of July 12, 2014, he stated later in the interview that he had left 30 Auburn Street that night in his uncle's black Mercedes sports utility vehicle. Rykowski noticed signs of a recent physical altercation on the defendant's person, including stitches on his lip, scratches on his throat, bandages on his knees, cuts on the back of his head, and a bandage on his right hand.

Kevin Barco, who was once a friend of the defendant, testified at trial that while he was incarcerated on unrelated charges, he contacted the police to give them information about the July 12, 2014 shooting. Barco and his family had received threats after the incident due to his friendship with the defendant. Barco testified that he had learned on Facebook that the victim had been shot. Thereafter, having received several phone calls reporting that the defendant was responsible for the shooting, he called the defendant to ask him what had occurred. When they later met, the defendant admitted to Barco that he had "fucked up," explaining that, "[w]hen [the defendant and the victim were] on Auburn Street, drinking, [the defendant] had a gun. He said [the victim] wanted his gun. [The defendant] wasn't trying to give it up. So, they started arguing ... because they was both drunk. [The victim] started to fight him. They fought. [The defendant] got knocked out. [The victim] walked off. [The defendant] got up, I guess, tried to go in his aunt's house. When he turned around [the victim] was coming back. [The defendant] said that he wasn't going to fight [the victim] again and [the defendant] shot [the victim]."

The defendant was arrested in connection with the incident and charged with murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of § 53a-217 (a) (1). He pleaded not guilty to both charges, elected a jury trial on the charge of murder, but waived his right to a jury trial on the charge of criminal possession of a firearm and elected a trial to the court. Following a jury trial on the charge of murder, the jury found the defendant not guilty. Thereafter, the court conducted a separate trial on the charge of criminal possession of a firearm based on the same evidence that the parties had presented to the jury on the murder charge,² and found the defendant guilty. The court reported its findings as follows: "Court exhibit number six, which was the stipulation that the defendant is a convicted felon, in that he was convicted of burglary in the second degree on August 2,...