State v. McKethan , 184 Conn. App. 187 ( 2018 )

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STATE OF CONNECTICUT v. DEQUAN MCKETHAN
(AC 40655)
Alvord, Keller and Bishop, Js.
Syllabus
Convicted under two informations of the crimes of murder, carrying a pistol
without a permit and possession of narcotics, the defendant appealed
to this court. He claimed that the trial court improperly granted the
state’s motion for joinder of the cases for trial because the conduct
alleged in the murder case was significantly more brutal and shocking
than the conduct alleged in the carrying a pistol without a permit and
possession of narcotics case. Held that the trial court did not abuse its
discretion in consolidating the two informations for trial, as the defen-
dant failed to demonstrate that joinder resulted in substantial prejudice
to him; although the defendant’s conduct with respect to the murder
charge was significantly more brutal and shocking than his conduct
related to the carrying a pistol without a permit and possession of
narcotics charges, the court’s explicit instructions to the jury to consider
each charge separately in reaching its verdict cured the risk of substantial
prejudice to the defendant and, therefore, preserved the jury’s ability
to fairly and impartially consider the offenses charged in the jointly
tried cases.
Argued January 22—officially released August 7, 2018
Procedural History
Information, in the first case, charging the defendant
with the crimes of possession of narcotics, possession
of narcotics with intent to sell, possession of a weapon
in a motor vehicle, and criminal possession of a pistol,
and with possession of less than one-half ounce of a
cannabis-type substance and the infractions of
improper use of a marker, operating a motor vehicle
with a suspended license, operating an unregistered
motor vehicle and operating a motor vehicle without
minimum insurance, and information, in the second
case, charging the defendant with the crime of murder,
brought to the Superior Court in the judicial district of
New London, geographical area number twenty-one,
where the court, Jongbloed, J., granted the state’s
motion for joinder; thereafter, the state filed a substitute
information; subsequently, the matter was tried to the
jury; verdicts and judgments of guilty of murder, car-
rying a pistol without a permit and possession of narcot-
ics; thereafter, the state entered a nolle prosequi as to
the remaining charges, and the defendant appealed to
this court. Affirmed.
S. Max Simmons, assigned counsel, for the appel-
lant (defendant).
Lawrence J. Tytla, supervisory assistant state’s attor-
ney, with whom, on the brief, was Michael L. Regan,
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Dequan McKethan,
appeals from the judgments of conviction, rendered
after a jury trial, of murder in violation of General Stat-
utes § 53a-54a, carrying a pistol without a permit in
violation of General Statutes § 29-35 (a), and possession
of narcotics in violation of General Statutes § 21a-279
(a). On appeal, the defendant claims that the trial court
improperly granted the state’s motion for joinder of the
two separate cases against him for trial. We disagree
and, accordingly, affirm the judgments of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On September 24, 2012, the defendant left the house
that he shared with his girlfriend, Chelsea Vanderslice,
on Summit Street in Norwich between 9:45 and 10 p.m.
The defendant went back to his house around 10:45 or
11 p.m. but left again. The defendant gave his car keys
to Duryll Barham and asked Barham to watch his car.
Barham called the defendant around 2 or 3 a.m., and
the defendant told him to return the car in front of the
defendant’s house, which Barham later did.
The defendant knew the victim, Darius Bishop,
because the victim had previously sold the defendant
marijuana. On the night of September 24, 2012, the
victim called the defendant’s cell phone four times
between 10:11 and 10:26 p.m. In that same time period,
the defendant called the victim’s cell phone twice. By
1 a.m. on September 25th, the defendant and the victim
were at the same location. Sometime between 2 and 3
a.m., they ended up outside the Charles Long Sports
Complex in Bozrah, where the defendant shot the victim
in the head, killing him.
Connecticut State Police responded to a 911 call
around 7 a.m. and found the victim’s body lying face
down. He was barefoot, with his shoes lying next to
his body and his driver’s license in his left hand. A
single .22 caliber shell casing was found on the ground
underneath the victim’s head. The brand of the shell
casing was Super-X.
Officer Frank Callender, a Norwich police officer,
found the victim’s car parked on Bills Avenue in Nor-
wich the next day, on September 26, 2012. Bills Avenue
intersects with Summit Street, where the defendant
lived.
That same day, Officer Avery Marsh, also with the
Norwich Police Department, was patrolling the area of
Summit Street. He observed the defendant’s red Nissan
Maxima, which did not have a front license plate dis-
played. Through a check with the Department of Motor
Vehicles, Officer Marsh discovered that the rear license
plate on the red Nissan Maxima was registered to a
2004 Hyundai Santa Fe. After learning this information,
a distance and eventually observed the defendant get
into the car and drive south on Summit Street. Officer
Marsh lost sight of the vehicle soon thereafter.
The next day, on September 27, 2012, Officer Marsh
returned to the area of Summit Street and observed the
defendant and Vanderslice occupying the red Nissan
Maxima. Eventually, Vanderslice exited the vehicle, and
the defendant drove down the street.
Officer Marsh pulled the defendant over, and almost
as soon as the car stopped, the defendant moved his
right arm in a downward motion. Officer Marsh recog-
nized this movement as the defendant potentially trying
to conceal something. When Officer Marsh approached
the defendant’s vehicle and asked for his driver’s
license, the defendant handed him a Connecticut identi-
fication card rather than a driver’s license. The defen-
dant’s hand was shaking as he handed Officer Marsh
his identification card, and he admitted that his driver’s
license was suspended. The defendant also admitted
that his car was not registered and that it was not
insured.
Officer Marsh asked the defendant to exit the vehicle
and inquired whether he had any knives or guns on
him. The defendant said that he did not have any knives
on him. When Officer Marsh asked again specifically
about guns, the defendant did not respond.
Officer Marsh then conducted a patdown of the defen-
dant. During the patdown, Officer Marsh felt a small
bulge on the defendant’s right pants pocket. When Offi-
cer Marsh looked down, he saw part of a plastic bag
sticking out of the pocket, which he recognized as nar-
cotics packaging. After removing the bag from the
defendant’s pocket, Officer Marsh saw that it contained
a white powder-like substance, and the defendant said
‘‘that’s flour, I’m not going to lie, I use it.’’ Officer Marsh
knew that ‘‘flour’’ was the street term for powder
cocaine and subsequent testing confirmed that the bag
contained .988 grams of cocaine.
Officer Marsh placed the defendant under arrest and
searched the defendant’s car. Officer Marsh discovered
a .22 caliber handgun under the driver’s seat. The defen-
dant did not have a permit for the gun, and the gun
was registered to a man named Timothy McDonald,
who did not know the defendant. In addition, a box of
Super-X .22 caliber bullets was found underneath the
driver’s seat of the vehicle. Super-X bullets were also
found inside the gun. In a subsequent search of the
defendant’s residence, Detective Keith Hoyt of the Con-
necticut state police discovered an additional box of
Super-X .22 caliber ammunition.
Ballistics tests confirmed that the .22 caliber handgun
found in the defendant’s car was the gun that fired
the shell casing found underneath the victim’s body. In
addition, DNA testing revealed that the defendant’s
DNA was present on both the trigger and the magazine
of the .22 caliber handgun found in his car.
After booking the defendant on the charges related
to the motor vehicle stop, Officer Marsh informed the
defendant that the state police wanted to talk to him.
In response, the defendant stated: ‘‘[T]he state police,
well, this must be a big deal. Officer, everything is mine.’’
Later, however, he stated, ‘‘I can’t believe I let my boy
use my car and now there’s a gun in it.’’ In an interview
with the state police, the defendant stated that someone
named ‘‘Dee’’ borrowed his car earlier that morning but
provided no details as to who ‘‘Dee’’ was. When the
defendant was served with an arrest warrant on the
murder charge, he admitted that he ‘‘lied about some
things and told the truth about other things’’ during his
interview with the state police.
The state initially charged the defendant in two sepa-
rate informations. On September 28, 2012, the state filed
an information in docket numbers CR-XX-XXXXXXX-S and
MV-XX-XXXXXXX-S charging the defendant with offenses
related to the motor vehicle stop, including criminal
possession of the pistol and possession of narcotics.1
On December 10, 2012, the state filed an information
in docket number CR-XX-XXXXXXX-T charging the defen-
dant with murder. On May 28, 2015, the state filed a
motion for joinder of the two informations. The motion
averred that the evidence of other crimes was cross
admissible and that the cases arose out of a single
transaction. The defendant filed a written objection to
that motion, asserting that ‘‘the defendant will suffer
substantial prejudice if these matters are tried at the
same time before the same jury . . . .’’
After hearing arguments from the parties on July 14,
2015, the court granted the motion for joinder on July
20, 2015. The court ruled that the evidence was not
cross admissible, because although evidence from the
motor vehicle stop would be admissible in the prosecu-
tion of the murder charge, the court was not convinced
that evidence of the murder would be admissible in a
trial of only the charges resulting from the motor vehicle
stop. Conducting an analysis under State v. Boscarino,
204 Conn. 714, 529 A.2d 1260 (1987), however, the court
concluded that joinder would not substantially preju-
dice the defendant. The court explained that (1) the
charges involved discrete and distinguishable facts, (2)
‘‘although the charge of murder is certainly more violent
than charges of narcotics and weapons violations, it
does not rise to the level of substantial prejudice,’’ and
(3) joinder would not result in an overly long or complex
trial. The state subsequently filed a substitute informa-
tion that charged the defendant with murder in violation
of § 53a-54a, carrying a pistol without a permit in viola-
tion of § 29-35 (a), and possession of narcotics in viola-
tion of § 21a-279 (a).
A jury trial followed, and the defendant was found
guilty of all counts. The court sentenced the defendant
to a total effective sentence of fifty six years of impris-
onment. This appeal followed.
On appeal, the defendant claims that the trial court
improperly granted the state’s motion for joinder of the
two separate cases against him for trial. Specifically,
he argues that ‘‘[c]onsideration of the brutality of the
murder in relation to the gun charge should have com-
pelled the conclusion that joinder was improper
. . . .’’2 The defendant further argues that no jury
instructions were given to cure the prejudicial effect
of the joinder. We disagree.
We begin by setting forth the standard of review and
legal principles that guide our analysis. ‘‘The principles
that govern our review of a trial court’s ruling on a
motion for joinder or a motion for severance are well
established. Practice Book § 41-19 provides that, [t]he
judicial authority may, upon its own motion or the
motion of any party, order that two or more informa-
tions, whether against the same defendant or different
defendants, be tried together. . . . In deciding whether
to [join informations] for trial, the trial court enjoys
broad discretion, which, in the absence of manifest
abuse, an appellate court may not disturb. . . . The
defendant bears a heavy burden of showing that [join-
der] resulted in substantial injustice, and that any
resulting prejudice was beyond the curative power of
the court’s instructions.’’ (Internal quotation marks
omitted.) State v. Payne, 303 Conn. 538, 543–44, 34 A.3d
370 (2012).
‘‘A long line of cases establishes that the paramount
concern is whether the defendant’s right to a fair trial
will be impaired. Therefore, in considering whether
joinder is proper, this court has recognized that, where
evidence of one incident would be admissible at the
trial of the other incident, separate trials would provide
the defendant no significant benefit. . . . Under such
circumstances, the defendant would not ordinarily be
substantially prejudiced by joinder of the offenses for
a single trial. . . . Accordingly, we have found joinder
to be proper where the evidence of other crimes or
uncharged misconduct [was] cross admissible at sepa-
rate trials. . . . Where evidence is cross admissible,
therefore, our inquiry ends.
‘‘Substantial prejudice does not necessarily result
from [joinder] even [if the] evidence of one offense
would not have been admissible at a separate trial
involving the second offense. . . . Consolidation
under such circumstances, however, may expose the
defendant to potential prejudice for three reasons: First,
when several charges have been made against the defen-
dant, the jury may consider that a person charged with
doing so many things is a bad [person] who must have
done something, and may cumulate evidence against
him . . . . Second, the jury may have used the evi-
dence of one case to convict the defendant in another
case even though that evidence would have been inad-
missible at a separate trial. . . . [Third] joinder of
cases that are factually similar but legally unconnected
. . . present[s] the . . . danger that a defendant will
be subjected to the omnipresent risk . . . that
although so much [of the evidence] as would be admissi-
ble upon any one of the charges might not [persuade
the jury] of the accused’s guilt, the sum of it will con-
vince them as to all. . . .
‘‘[Accordingly, the] court’s discretion regarding join-
der . . . is not unlimited; rather, that discretion must
be exercised in a manner consistent with the defen-
dant’s right to a fair trial. Consequently, [in State v.
Boscarino, supra, 204 Conn. 722–24] we have identified
several factors that a trial court should consider in
deciding whether a severance or [denial of joinder] may
be necessary to avoid undue prejudice resulting from
consolidation of multiple charges for trial. These factors
include: (1) whether the charges involve discrete, easily
distinguishable factual scenarios; (2) whether the
crimes were of a violent nature or concerned brutal or
shocking conduct on the defendant’s part; and (3) the
duration and complexity of the trial. . . . If any or all
of these factors are present, a reviewing court must
decide whether the trial court’s jury instructions cured
any prejudice that might have occurred.’’ (Citations
omitted; internal quotation marks omitted.) State v.
LaFleur, 307 Conn. 115, 155–56, 51 A.3d 1048 (2012).
In the present case, the court found that the evidence
was not cross admissible, but nevertheless concluded
that joinder was proper pursuant to the Boscarino fac-
tors.3 The defendant relies solely on the second Boscar-
ino factor to support his argument that joinder of the
two cases was improper, and, therefore, we will not
discuss the first and third factors in our analysis. The
defendant argues that joinder was improper under the
second Boscarino factor because the conduct alleged
in the murder case was significantly more brutal and
shocking than the conduct alleged in the carrying a
pistol without a permit and possession of narcotics
case.
Although we agree with the defendant that the second
Boscarino factor weighs against joinder, we conclude
that the defendant has not shown that joinder resulted
in substantial prejudice. ‘‘Whether one or more offenses
involved brutal or shocking conduct likely to arouse the
passions of the jurors must be ascertained by comparing
the relative levels of violence used to perpetrate the
offenses charged in each information.’’ (Internal quota-
tion marks omitted.) State v. Payne, supra, 303 Conn.
551.
In the murder case, the jury heard evidence that the
defendant shot and killed the victim in the middle of
the night at an isolated location. The victim was found
lying face down on the ground with his shoes set next
to his body and his driver’s license in his left hand.4 In
the narcotics possession and carrying a pistol without
a permit case, however, no violence was involved.
Because the defendant’s conduct in killing the victim
in the murder case was significantly more brutal and
shocking than his conduct in possessing narcotics and
carrying a pistol without a permit, we conclude that
the second Boscarino factor weighs against joinder and
that the evidence from the murder case raised a risk
of substantial prejudice with regard to the drug and
firearm possession case. See State v. Payne, supra, 303
Conn. 551–52 (comparing relative levels of violence of
felony murder, where victim was shot at close range,
and tampering with jury, in which no violence was
involved, stating ‘‘[w]e would be hard pressed to find
cases that, when joined, raise a more significant con-
cern regarding the relative levels of violence than the
cases at issue here’’).
Having concluded that the defendant’s conduct with
respect to the murder charge could fairly be seen as
brutal or shocking, we now must decide whether the
court’s jury instruction cured any potential prejudice.
‘‘On appeal, the burden rests with the defendant to
show that joinder was improper by proving substantial
prejudice that could not be cured by the trial court’s
instructions to the jury . . . .’’ (Internal quotation
marks omitted.) State v. Wilson, 142 Conn. App. 793,
801, 64 A.3d 846, cert. denied, 309 Conn. 917, 70 A.3d
40 (2013). ‘‘[A]lthough a curative instruction is not inevi-
tably sufficient to overcome the prejudicial impact of
[inadmissible other crimes] evidence . . . where the
likelihood of prejudice is not overwhelming, such cura-
tive instructions may tip the balance in favor of a finding
that the defendant’s right to a fair trial has been pre-
served.’’ (Internal quotation marks omitted.) Id., 804.
In the present case, the court’s explicit instructions
to the jury that it should consider the offenses sepa-
rately ameliorated any possible prejudice that joinder
may have caused. Although the defendant argues that
no such instructions were given, we disagree. The court
cautioned the jury at the start of trial and in its final
instruction to consider each charge separately in reach-
ing its verdict. Specifically, at the start of trial, the court
instructed the jury: ‘‘Each charge against the defendant
is set forth in the information in a separate paragraph
or count and each such offense must be considered
separately by you in deciding this case.’’ (Emphasis
added.)
In addition, in its final charge to the jury, the trial
court instructed: ‘‘The defendant is entitled to and must
be given by you a separate and independent determina-
tion of whether he is guilty or not guilty as to each of
the counts. Each of the counts charged is a separate
crime. The state is required to prove each element in
each count beyond a reasonable doubt. Each count
must be deliberated upon separately. The total number
of counts charged does not add to the strength of the
state’s case. You may find that some evidence applies
to more than one count. The evidence, however, must
be considered separately as to each element in each
count. Each count is a separate entity. You must con-
sider each count separately and return a separate ver-
dict for each count. This means you may reach opposite
verdicts on different counts. A decision on one count
does not bind you[r] decision on another count.’’ With-
out evidence to the contrary, we presume that the jury
followed these instructions. See State v. Parrott, 262
Conn. 276, 294, 811 A.2d 705 (2003) (‘‘[b]arring contrary
evidence, we must presume that juries follow the
instructions given them by the trial judge’’ [internal
quotation marks omitted]).
Thus, even though the murder charge could be
viewed as brutal or shocking due to its comparative
level of violence in relation to the possession charges,
the murder charge ‘‘was not so brutal or shocking as
to create a substantial risk that the jury, with explicit
instructions to treat each offense separately, would
nevertheless treat the evidence cumulatively.’’ (Empha-
sis added; internal quotation marks omitted.) State v.
Wilson, supra, 142 Conn. App. 803 (concluding that trial
court did not abuse its discretion in consolidating two
cases when trial court ‘‘repeatedly cautioned the jury
to consider each charge separately in reaching its
verdict’’).
We conclude that the court’s jury instructions cured
the risk of substantial prejudice to the defendant and,
therefore, preserved the jury’s ability to fairly and
impartially consider the offenses charged in the jointly
tried cases. See State v. Davis, 286 Conn. 17, 33–36,
942 A.2d 373 (2008) (concluding that trial court’s jury
instructions cured risk of prejudice to defendant); see
also State v. Rivera, 260 Conn. 486, 493, 798 A.2d 958
(2002) (‘‘[a]lthough we might disagree with the trial
court’s conclusion that the two cases were not brutal
or shocking, we cannot say, as a reviewing court, that
the trial court’s conclusion, coupled with proper and
adequate jury instructions, constituted an abuse of dis-
cretion’’). We therefore conclude that the court did not
abuse its discretion in consolidating the two informa-
tions for trial.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The defendant was also charged with several motor vehicle offenses in
this information. The state entered a nolle prosequi as to those charges.
2
The state argues that the defendant’s claim on appeal is not preserved.
Specifically, the state argues that because the defendant argued before the
trial court that the circumstances of the firearm and drug counts would
prejudice the jury in its consideration of the murder count, he advances a
new claim on appeal by arguing that the circumstances of the murder charge
would prejudice the jury in its consideration of the firearm and drug charges.
We disagree.
‘‘[T]he 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 below with sufficient clarity to place the trial
court on reasonable notice of that very same claim.’’ State v. Jorge P., 308
Conn. 740, 754, 66 A.3d 869 (2013). ‘‘[T]he essence of the preservation
requirement is that fair notice be given to the trial court . . . .’’ (Emphasis
in original.) State v. Ross, 269 Conn. 213, 335–36, 849 A.2d 648 (2004).
We conclude that the defendant properly preserved his claim. The defen-
dant filed a written objection to the state’s motion for joinder, asserting
that ‘‘the defendant will suffer substantial prejudice if these matters are
tried at the same time before the same jury . . . .’’ At the hearing on this
motion, the defendant argued: ‘‘The concern that we have as the defense
is . . . that the addition of the charges adds the . . . prejudice that we’re
concerned about. And it paints [the defendant] . . . in a prejudicial way
as . . . somebody that’s perhaps worse than someone who’s merely charged
in this case in the homicide of the . . . victim.’’ Although the defendant’s
argument at the hearing on the motion, unlike his written objection,
addressed only whether the addition of the possession charges would preju-
dice the murder charge, the trial court, in its ruling on the motion for joinder,
addressed the specific issue presented to this court. In its ruling on the
motion for joinder, the trial court explained: ‘‘[A]lthough the charge of
murder is certainly more violent than charges of narcotics and weapons
violations, it does not rise to the level of substantial prejudice.’’ Because
the trial court addressed the issue now on appeal, it is clear that the trial
court was placed on reasonable notice of the claim.
In support of its argument, the state places great reliance on State v.
Snowden, 171 Conn. App. 608, 157 A.3d 1209, cert. denied, 326 Conn. 903,
163 A.3d 1204 (2017). The defendant in Snowden similarly claimed on appeal
that the trial court erred in permitting joinder of one information charging
murder with a second information charging criminal possession of a firearm.
Id., 610. Specifically, the defendant argued that the court failed to consider
whether the allegations in the murder case were significantly more shocking
and brutal than the allegations in the criminal possession case. Id., 613.
Because the defendant objected to the joinder only on the basis of the
admissibility of the evidence supporting the criminal possession charge in
the murder charge, this court concluded that the defendant’s ‘‘distinct claim’’
on appeal that the evidence supporting the murder charge was unduly
prejudicial and not cross admissible in the criminal possession case was
not properly preserved and declined to review the defendant’s claim. Id., 616.
We conclude that Snowden is distinguishable from the present case. In
Snowden, when the defendant objected to the joinder of his cases, he argued
only that the evidence in his cases was not cross admissible. Id. Moreover,
although the trial court in Snowden addressed the Boscarino factors to
assess whether joinder would result in substantial prejudice, the court
addressed only whether the possession and tampering charges were of a
violent nature; it did not address the violent nature of the murder charge,
which went to the heart of the defendant’s argument on appeal. Unlike the
trial court in Snowden, the trial court in this case specifically addressed
the violent nature of the defendant’s murder charge in its ruling, which the
defendant presently challenges on appeal. We therefore conclude that the
defendant’s claim is preserved for appellate review.
3
This court, therefore, does not need to address whether the evidence in
the murder case was cross admissible in the drug possession and firearm
possession case. See State v. Devon D., 321 Conn. 656, 664–65, 138 A.3d 849
(2016) (At trial, ‘‘the state bears the burden of proving that the defendant
will not be substantially prejudiced by joinder pursuant to Practice Book
§ 41-19. The state may satisfy this burden by proving, by a preponderance
of the evidence, either that the evidence in the cases is cross admissible or
that the defendant will not be unfairly prejudiced pursuant to the factors
set forth in [State v. Boscarino, supra, 204 Conn. 722–24].’’ [Internal quotation
marks omitted.])
4
During its closing argument, the state pointed out the inferences that
the jury could draw from these circumstances: ‘‘I can’t tell you exactly why
[the victim] had his sneakers off. I can’t tell you why he was holding his
license in his outstretched hand, but common sense tells you that he was
taken to be executed and that’s exactly what happened. His feet were clean.
His shoes had just been taken off whether someone was searching him or
didn’t want him to flee or something, we don’t know. But you look at those
pictures and it looks like he was yelling and somebody came up and fired
a bullet into his brain and left him there to bleed and die. That’s what we’re
dealing with. You know it’s not a joke, it’s one of the most heinous things
that you can imagine, really one of the most horrible ways for someone to
lose their life.’’