State v. Marrero-Alejandro , 324 Conn. 780 ( 2017 )

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STATE OF CONNECTICUT v. GILBERTO O.
MARRERO-ALEJANDRO
(SC 19559)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued December 13, 2016—officially released March 14, 2017
James B. Streeto, senior assistant public defender,
for the appellant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and John H. Malone, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
PER CURIAM. Following a jury trial, the defendant,
Gilberto O. Marrero-Alejandro, was convicted of mur-
der in violation of General Statutes (Rev. to 2009) § 53a-
54a in connection with a shooting in Bristol in 2010.
He was sentenced to a term of sixty years imprisonment.
The defendant appealed from the judgment of the trial
court to the Appellate Court, claiming, among other
things, that the trial court improperly had failed to sup-
press certain DNA evidence obtained from a buccal
swab of the defendant because the swab was taken after
he had invoked his right to counsel. State v. Marrero-
Alejandro, 159 Conn. App. 376, 396, 122 A.3d 272 (2015).
The Appellate Court affirmed the judgment of the trial
court, holding, inter alia, that the defendant’s claim was
unreviewable because (1) it was not preserved at trial,
and (2) it failed to satisfy the second prong of State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
State v. Marrero-Alejandro, supra, 397–98. In determin-
ing that the claim was not of constitutional magnitude
as required for Golding review, the Appellate Court
reasoned that, because the buccal swab was not testi-
monial evidence, neither the fifth amendment to the
federal constitution nor article first, § 8, of the Connecti-
cut constitution was implicated as those provisions
apply only to testimonial evidence. Id.
Thereafter, this court granted the defendant’s petition
for certification limited to the following issue: ‘‘Did the
Appellate Court properly uphold the trial court’s denial
of the defendant’s motion to suppress DNA evidence
obtained from a buccal swab taken after he invoked
his right to counsel?’’ State v. Marrero-Alejandro, 319
Conn. 934, 125 A.3d 207 (2015). Our review of the record
makes it apparent that this certified question does not
reflect a correct statement of the issue before this court.
The Appellate Court’s initial conclusion was that a chal-
lenge to the admission of this evidence was unpreserved
because defense counsel had informed the trial court
that his motion to suppress was not directed at the
buccal swab. State v. Marrero-Alejandro, supra, 159
Conn. App. 397. The defendant does not challenge that
conclusion in his certified appeal. Therefore, we have
reformulated the certified question as follows: Did the
Appellate Court properly conclude that the defendant’s
unpreserved challenge to the trial court’s admission of
the buccal swap did not present a question of constitu-
tional magnitude? See State v. Ouellette, 295 Conn. 173,
184, 989 A.2d 1048 (2010) (reformulating certified ques-
tion to conform to issue actually presented and decided
in appeal); Rosado v. Bridgeport Roman Catholic Dioc-
esan Corp., 276 Conn. 168, 191, 884 A.2d 981 (2005)
(same).
After examining the entire record on appeal and con-
sidering the briefs and oral arguments of the parties,
we have determined that the appeal in this case should
be dismissed on the ground that certification was
improvidently granted.
The appeal is dismissed.