State v. Sease , 147 Conn. App. 805 ( 2014 )

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STATE OF CONNECTICUT v. ANTWAN SEASE
(AC 35554)
Gruendel, Lavine and Pellegrino, Js.
Argued December 10, 2013—officially released January 28, 2014
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Christopher Y. Duby, assigned counsel, for the appel-
lant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, and
David Zagaja, assistant state’s attorney, for the appel-
lee (state).
Opinion
LAVINE, J. The defendant, Antwan Sease, 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) (2), and conspiracy to
commit robbery in the first degree in violation of Gen-
eral Statutes §§ 53a-134 (a) (2) and 53a-48.1 On appeal,
the defendant claims that the court abused its discretion
by admitting into evidence statements made by his
coconspirator to a third party. The state claims that
this evidentiary claim is not reviewable as the defendant
failed to preserve it at trial. We agree that the claim
was not preserved for appellate review and therefore
affirm the judgment of the trial court.
The jury could have found the following facts beyond
a reasonable doubt. On October 2, 2009, the defendant
and his coconspirator, Quan Morgan (Quan),2 talked
about committing a robbery. Quan talked about ‘‘getting
some guy.’’ The defendant stated that he also ‘‘wanted
to get at that’’ guy ‘‘for the longest’’ time. That same
day, the defendant told his friend, Kevin Prude, that he
was going to a club on Main Street in Hartford.
Later, the defendant and Quan met at the home of
Quan’s mother, Shirley Williams, who lived on Westland
Street in Hartford. At approximately 2:30 a.m. on Octo-
ber 3, 2009, the defendant and Quan left the Williams’
residence on foot under the guise of getting food for
Courtney Morgan, who was Quan’s sister and the defen-
dant’s girlfriend. They, however, walked toward Club
Vibz on Main Street. The defendant was carrying a .38
caliber semiautomatic handgun, and he gave Quan a
.38 caliber revolver.
Club Vibz had closed for the night. The victim,
Edward Haslam, was sitting in the operator’s seat of a
motor vehicle in the club’s parking lot talking to Erika
Taylor, who was in the passenger’s seat. Dana Middle-
ton was standing outside the vehicle on the passenger’s
side. Rhonda McNickles, Tarsha Zenit, and Timothy
Rush were seated in McNickles’ vehicle nearby.
As the two men approached the Club Vibz parking
lot, the defendant stated to Quan, ‘‘that has to be him,’’
and asked Quan if he ‘‘ha[d] his back.’’ When they
reached the parking lot of Club Vibz, Quan walked up
to Middleton and, at gunpoint, demanded his cell phone
and money. Quan took the cell phone and money,
ordered Middleton to get on the ground, and walked
away. The defendant walked to the victim’s vehicle,
pointed his gun in the window, stated ‘‘empty your
fucking pockets,’’ and fired one shot into the victim’s
chest.3 He took the victim’s money and his cell phone.
As a result of having been shot, the victim bled to death.
Rush saw that both men had guns.
The defendant and Quan ran toward Westland Street.
Along the way, the defendant took Quan’s gun from
him and hid it in the basement of a friend’s home. When
they arrived at the Williams residence, Quan asked the
defendant why he had shot the victim. The defendant
stated: ‘‘I had to. It was my reason. I got my reasons.
I had to do it because something went wrong between
us.’’ While the defendant was in the Williams residence,
he dropped a gun on the floor, which made a loud noise
heard by Courtney Morgan and Williams. The defendant
gave Courtney Morgan a cell phone to hold and called
Prude to pick him up because ‘‘it was hot outside,’’
which meant that some incident had just happened.
Prude took the defendant to the home of Prude’s sister.
Williams gave a statement to the police on May 21,
2010, regarding the defendant’s and Quan’s being in her
home on October 3, 2009. Williams had had no contact
with the defendant after the night in question. After she
gave a statement to the police, however, the defendant
drove by her home while she was sitting on the porch.
As he drove by, the defendant blew his vehicle’s horn,
pointed his fingers as if they were a gun at Williams,
and shook his head. The jury also heard evidence that,
while he was incarcerated awaiting trial, the defendant
discussed the robbery and shooting with Michael Lee.
At the conclusion of evidence on June 6, 2011, counsel
for the defendant made a motion for a judgment of
acquittal and a motion to dismiss the charges on the
basis of insufficient evidence. The court denied both
motions. Prior to sentencing, the defendant filed a
motion to set aside the verdict and a motion to dismiss
the charges on the basis of insufficient evidence. Those
motions, too, were denied. Thereafter, the defendant
appealed. Additional facts will be addressed as needed.
On appeal, the defendant claims that the court abused
its discretion by permitting Lee to testify as to state-
ments made by Quan. At trial, Lee testified that he was a
sentenced prisoner at MacDougall-Walker Correctional
Institution and that, in the past, he had been convicted
of a number of felonies. He testified that no promises
had been made to him in exchange for his testimony.
Lee is Quan’s cousin and knew of the defendant from
outside of prison. He got to know the defendant because
he was housed in the cell next to his. Lee reached out
to law enforcement because the defendant had told him
about a situation in which the defendant had ‘‘put work
in.’’ The conversation between the defendant and Lee
took place in the mess hall of the prison. Lee identified
the defendant at trial and testified on direct examina-
tion, in part, as follows:
‘‘[The Prosecutor]: How did the conversation go
about this case?
‘‘[The Witness]: He asked me did I know Quan, and
I said what Quan and he was like Quan Morgan. And I
said, yeah, that’s my cousin, and he was like—he was
like, well while we was walking to the table, he was
like your cousin crazy. I was like why my cousin crazy?
He was like—I guess the day that had took place they
was at my aunt house—
‘‘[The Prosecutor]: You can only say what he told
you about this incident.
‘‘[The Witness]: Yeah, that’s what I’m sayin’.
‘‘[The Prosecutor]: Okay.
‘‘[The Witness]: He was like—they started talking
about it when they was at his aunt house, I guess Quan
or somethin’ like that and—which is on Enfield Street.
And he said Quan started talking about some dude.
‘‘[Defense Counsel]: Objection, Your Honor. I believe
he’s testifying about a conversation between the defen-
dant and Quan.
***
‘‘The Court: Counsel, if you could clarify who is doing
the discussion.
‘‘[The Prosecutor]: And this is [the defendant] provid-
ing you with this information?
‘‘[The Witness]: Yes.
‘‘[The Prosecutor]: And is he telling you about a con-
versation that he’s having with Quan?
‘‘[The Witness]: Yes.
‘‘[The Prosecutor]: About this incident?
‘‘[The Witness]: Yes.
‘‘[The Prosecutor]: That day?
‘‘[The Witness]: Yes.
‘‘The Court: Is he allowed to discuss the conver-
sation?
‘‘[The Prosecutor]: Yes.
‘‘The Court: That’s the question.
‘‘[The Prosecutor]: Yes, in furtherance of the conspir-
acy, Your Honor.
‘‘The Court: All right, as furtherance of the conspir-
acy, I’ll allow it.4
‘‘[The Prosecutor]: And they were talking about what
was going to take place that day?
‘‘[The Witness]: Yes.
‘‘[The Prosecutor]: This is [the defendant] telling
you this?
‘‘[The Witness]: Yes. So he started telling me—he
started telling me Quan started talking about some—
getting some guy, and he was like what guy. And I
guess—I guess Quan said—
‘‘[The Prosecutor]: You can’t say I guess. You can
only say what [the defendant] told you.
‘‘[The Witness]: Well, he said Quan—well, he said
Quan said—
‘‘[Defense Counsel]: Objection, Your Honor. It’s hear-
say what Quan said; Quan didn’t testify to it in this case
at all.
‘‘The Court: Counsel, your response to the hearsay
objection.
‘‘[The Prosecutor]: Is he saying what Quan is saying—
‘‘[The Witness]: Yeah, [the defendant] said—
‘‘[The Prosecutor]: About what’s going to happen
later that night?
‘‘[The Witness]: Yeah.
‘‘[The Prosecutor]: It’s a statement of coconspirator
in furtherance of the conspiracy, Your Honor.
‘‘The Court: I’ll allow it, counsel.5
‘‘[The Witness]: So, he said Quan said the guy name.
He was like, oh, yeah, yeah—he was like, oh yeah, I
wanted to get at that—I don’t know, I can’t say the N-
word in here, huh?
‘‘[The Prosecutor]: Did he swear?
‘‘[The Witness]: Yeah.
‘‘[The Prosecutor]: You can swear, if that’s what he
said.
‘‘[The Witness]: Oh, okay. He was like—
‘‘The Court: But, if you’re not comfortable saying it,
you don’t have to say it.
‘‘[The Witness]: He was, like, I wanted to get—get at
that nigger for the longest and—
‘‘[The Prosecutor]: Who said that?
‘‘[The Witness]: That’s—that’s what [the defendant]
said. And after that he said Quan left for like fifteen—
fifteen to twenty minutes, and then went to his house
and came back, and they met up, and that’s when he
started walking away from the table. When he walked
away from the table—before he walked away from the
table to get on the phone, he was like, yeah, that was
my work. That’s what [the defendant] said, that was
my work.
‘‘[The Prosecutor]: I’m sorry. You’re saying he walked
away from a table?
‘‘[The Witness]: Before he walked away—
‘‘[The Prosecutor]: Is this the conversation he’s hav-
ing with you?
‘‘[The Witness]: Yeah.
‘‘The Prosecutor: So before he walked away from
the table—
‘‘[The Witness]: [The defendant] said, that was my
work.
‘‘[The Prosecutor]: He said, that was . . . his work?
‘‘[The Witness]: Yeah. He was like—he was like, yeah,
but that dude—that was my work.’’6
On appeal, the defendant claims that the court abused
its discretion by permitting Lee to testify as to Quan’s
statement about ‘‘getting some guy.’’ The defendant
assumes that the evidentiary import of that statement
was to provide a motive for shooting the victim. The
defendant argues that the state failed to lay a factual
predicate that the statement was made while the con-
spiracy was ongoing, and, therefore, the court abused
its discretion by admitting the statement. See Conn.
Code Evid. § 8-3 (1) (D); Macchio v. Breunig, 125 Conn.
113, 122, 3 A.2d 670 (1939). The state argues that the
claim is not reviewable because the defendant did not
preserve it at trial. We agree.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must
properly articulate the basis of the objection so as to
apprise the trial court of the precise nature of the objec-
tion and its real purpose, in order to form an adequate
basis for a reviewable ruling. . . . Once counsel states
the authority and ground of [the] objection, any appeal
will be limited to the ground asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush.’’ (Inter-
nal quotation marks omitted.) State v. Jorge P., 308
Conn. 740, 753, 66 A.3d 869 (2013). ‘‘[A] party cannot
present a case to the trial court on one theory and then
seek appellate relief on a different one . . . .’’ (Internal
quotation marks omitted.) Council v. Commissioner of
Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008).
‘‘[T]he sina qua non of preservation is fair notice to
the trial court.’’ State v. Jorge P., supra, 308 Conn. 753.
An appellate court’s ‘‘determination of whether a claim
has been properly preserved will depend on a careful
review of the record to ascertain whether the claim on
appeal was articulated [in the trial court] with sufficient
clarity to place the trial court on reasonable notice of
that very same claim.’’ Id., 754.
We have reviewed the entire transcript of Lee’s testi-
mony and find that at no time did the defendant object to
his testimony on the ground raised on appeal. Defense
counsel twice objected to Lee’s testimony, but he never
stated specifically that he objected on the failure of the
state to demonstrate that the statement attributed to
Quan was made while the conspiracy was ongoing. Had
the defendant expressly objected that the state had
failed to lay the required factual predicate for Lee’s
testimony, the court would have been able to rule on
the precise issue. Because the court was not provided
with an opportunity to rule on the issue raised on
appeal, we conclude that the defendant’s evidentiary
claim on appeal was not preserved for our review.7
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant had been charged with murder in violation of General
Statutes § 53a-54a, but the jury found him not guilty of that charge.
2
Quan testified at trial. He was incarcerated on other charges and had a
series of pending cases, including felony murder, robbery, and conspiracy
charges related to the Club Vibz shooting at issue in the present case. Quan
had a cooperation agreement with the state related to the Club Vibz charges,
which could reduce his sentence from sixty years to twenty-five years in
the custody of the Commissioner of Correction.
3
Investigators determined that the bullet and its casing were fired from
a .38 caliber semiautomatic handgun.
4
‘‘The following are not excluded by the hearsay rule, even though the
declarant is available as a witness: (1) Statement by a party opponent. A
statement that is being offered against a party and is . . . (D) a statement
by a coconspirator of a party while the conspiracy is ongoing and in further-
ance of the conspiracy . . . .’’ Conn. Code Evid. § 8-3 (1) (D).
5
See footnote 4 of this opinion.
6
On cross-examination, Lee testified in part as follows:
‘‘[Defense Counsel]: All right. And your testimony was—is today that my
client indicated when the conversation came up to this incident that it was
his work?
‘‘[The Witness]: Yes.
‘‘[Defense Counsel]: Meaning that he was involved in it?
‘‘[The Witness]: Yes.
‘‘[Defense Counsel]: But he didn’t—he didn’t say he’s responsible in so
many words, did he?
***
‘‘[The Witness]: No, he didn’t say those words.’’
7
In the alternative, the defendant seeks redress pursuant to the plain
error doctrine. ‘‘[The plain error] doctrine, codified at Practice Book § 60-
5, is an extraordinary remedy used by appellate courts to rectify errors
committed at trial that, although unpreserved, are of such monumental
proportion that they threaten to erode our system of justice and work a
serious and manifest injustice on the aggrieved party. . . . [T]he plain error
doctrine is reserved for truly extraordinary situations [in which] the exis-
tence of the error is so obvious that it affects the fairness and integrity of
and public confidence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly.’’ (Internal quotation marks omit-
ted.) State v. Sanchez, 308 Conn. 64, 76–77, 60 A.3d 271 (2013). The defendant
has failed to demonstrate why his evidentiary claim warrants plain error
reversal. We therefore decline to review his claim.