State v. Gojcaj ( 2014 )

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STATE OF CONNECTICUT v. MARASH GOJCAJ
(AC 35088)
DiPentima, C. J., and Lavine and Alvord, Js.
Argued March 5—officially released June 24, 2014
(Appeal from Superior Court, judicial district of
Danbury, Pavia, J.)
Stephan E. Seeger, with whom, on the brief, was Igor
G. Kuperman, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky
III, state’s attorney, and Sharmese L. Hodge, assistant
state’s attorney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Marash Gojcaj, appeals
from the judgment of conviction, rendered after a trial
to a jury, of murder in violation of General Statutes
§ 53a-54a (a). On appeal, the defendant claims that the
trial court improperly (1) denied his motion to dismiss
the charge for lack of territorial jurisdiction, (2) denied
his motion to suppress certain security system records
obtained by a warrantless search, (3) admitted these
security system records into evidence under the busi-
ness record exception to the hearsay rule, and (4)
instructed the jury on consciousness of guilt. We affirm
the judgment of the trial court.
The following facts, as the jury reasonably could have
found, and procedural history are relevant to the resolu-
tion of this appeal. On the evening of April 4, 2004, the
defendant and the victim, Zef Vulevic, enjoyed dinner
and wine at the Inn at Newtown. The defendant was the
victim’s nephew, and they co-owned Gusto Ristorante
(Gusto’s), an Italian restaurant located in Danbury,
where the victim served as head chef. They also lived
in the same apartment in Danbury. After dining, the pair
returned to Gusto’s and continued drinking alcoholic
beverages. Business was slow that evening, prompting
the defendant to close Gusto’s early, at approximately
11:30 p.m.
After closing, Daniel Cruz, a former employee of Gus-
to’s, and his wife, walked by the restaurant en route to
their apartment located across the street from Gusto’s.
The defendant and the victim chased after Cruz and
exchanged words with him before Cruz entered his
building. The defendant kicked in a portion of the apart-
ment building’s front door. In response, Cruz called
the police.
The police arrived shortly after midnight and inter-
viewed Cruz about the verbal altercation. While inter-
viewing Cruz, the police observed the defendant and
the victim outside Gusto’s. The defendant and the victim
were then questioned by the police. The officers
observed that the defendant and the victim had been
drinking, but that only the victim appeared intoxicated.
The defendant offered to make restitution to the apart-
ment building’s owner for the damage to the door, and
the police declined to arrest the defendant. Throughout
the course of the interview, the victim repeatedly inter-
rupted the police officers—he appeared agitated and
aggressive. The officers instructed the defendant to take
the victim off the street.
Twice, as the police attempted to leave the scene,
the victim yelled at them, saying that he wanted to fight
the officers. The police instructed the defendant to take
control of the victim, and threatened to tase the victim
if he did not get off the street. At the request of the
police, the defendant physically restrained the victim
and took him inside Gusto’s. The police heard the sound
of breaking glass and yelling from inside the restaurant,
but left the vicinity at 12:32 in the morning on April
5, 2004.
On evening of April 4, 2004, and into the early morning
hours of April 5, 2004, Kenya Braden, a college student
was working on a psychology paper in an apartment
overlooking Gusto’s front entrance. Braden observed
the altercation between the defendant and Cruz and
the police response. As she worked through the night,
she periodically looked down upon Gusto’s. Shortly
after 2 a.m., on two occasions, she observed the victim
crawling out of Gusto’s on his hands and knees before
the defendant grabbed the victim’s shirt and dragged
him back into the restaurant. According to Braden, ‘‘[the
victim] looked like he was trying to get away.’’
At approximately 3:30 a.m., Braden observed the
defendant park a white van in front of the restaurant.
The defendant exited the vehicle, removed boxes from
the back of the van, and took them inside Gusto’s. At
4 a.m., Braden went to sleep.
According to telephone records, the defendant made
telephone calls from Gusto’s landline to a close friend
at 3:34:14 a.m. and 3:34:51 a.m. Alarm records indicated
that Gusto’s security system was armed at 3:59 a.m.
Using his cell phone, he telephoned another close friend
at 4:10:09 a.m. and 4:10:30 a.m., and the victim’s cell
phone at 4:24:31 a.m. These three cell phone calls uti-
lized a cell phone tower, indicating that the defendant
was either at Gusto’s or in the area of Interstate 84
in Danbury.
The defendant subsequently traveled to Bedford,
New York. At approximately 8:10 a.m., sometime during
the first week of April, 2004, Joy Ovadek, a witness who
commuted through Bedford daily, observed a white van
that resembled the defendant’s parked on the side of
Baldwin Road.
At 9:02 a.m. on April 5, 2004, Mark Nolan, the owner
of Cruz’ apartment building telephoned the defendant’s
cell phone and spoke to the defendant regarding the
damaged door. That telephone call utilized a cell phone
tower indicating that the defendant was west of Inter-
state 684 in Armonk, New York. The defendant made
more calls from his cell phone that morning, indicating
that he was in the vicinity of New Rochelle, New York,
and moving north.
Later that morning, the defendant returned to Gusto’s
at 11 a.m. and unlocked the door for Timothy Ludlum,
an employee. Ludlum observed that a statue had been
broken and that there was broken glass on the floor.
The defendant told him that the victim had been intoxi-
cated and emotional the previous evening, and that he
‘‘flipped out’’ and ‘‘just left.’’
On April 6, 2004, the defendant telephoned Dennis
Radovic, a chef who had worked at Gusto’s in February,
2004. The defendant told Radovic that the victim was
missing and that he needed a chef. Radovic agreed to
return to work at Gusto’s, and upon entering the kitchen
he noticed that a bone saw was missing. Radovic stated
that the saw hung in the kitchen at Gusto’s when he
had worked there in February, 2004.
On April 8, 2004, at 9 a.m., the defendant telephoned
Magic Carpet cleaning service and arranged for Gusto’s
carpets to be cleaned that morning. The carpet cleaning
was completed before noon. That afternoon, the defen-
dant filed a missing person report with the police, sug-
gesting that the victim may have traveled to Florida to
visit family.
The next day, April 9, 2004, the Danbury police
requested that the defendant and the victim’s brother,
Nikola Valuj, come to police headquarters for ques-
tioning. The defendant told police that the last time he
had seen the victim was between 1 a.m. and 2 a.m. on
April 5, 2004, and that the victim was wearing a dark
colored T-shirt and black and white chef’s pants. The
defendant acknowledged the incident with Cruz, and
stated that the victim became emotional and broke a
podium and a glass door in the restaurant that night
before leaving the restaurant. In a subsequent interview
with police on April 21, 2004, the defendant provided a
written statement. He explained that the victim became
emotional, stormed out of Gusto’s around 1 a.m., and
that ‘‘I figured he was venting and was walking to our
apartment [in Danbury]. So, me and a worker, who
stayed at the apartment during the week of work, went
home. . . . I left around ten or fifteen minutes after
[the victim did]. I went directly home and have not
heard from him since.’’ The defendant told police that
‘‘he was fairly certain that he left [Gusto’s] around 1
a.m., but no later than 1:30 a.m.’’ The defendant also
stated that, after the victim left Gusto’s, he called the
victim and left him a voice mail message.1
On April 16, 2004, the defendant had Gusto’s carpets
replaced, stating to the installers that he wanted the
job completed as quickly as possible. Prior to the arrival
of the carpet installers, the defendant removed the car-
peting himself and placed the remnants in a dumpster
outside Gusto’s. The police collected the carpeting, and
upon reassembling it, discovered that one section
was missing.
On Saturday, April 24, 2004, David Jussel, an Earth
Day volunteer was cleaning up trash in Bedford, New
York. Jussel stumbled upon a black trash bag enveloped
in flies. The volunteer opened the bag, revealing a
human foot covered in maggots. Jussel’s mother then
called the police.
Forensic testing later determined that the foot, and
the rest of the body parts that were subsequently recov-
ered, belonged to the victim. An autopsy revealed two
gunshots to the back of the victim’s head. The medical
examiner determined that the gunshots to the head
were the cause of death and that the victim was dismem-
bered postmortem.
In February, 2008, while incarcerated on an unrelated
matter at Westchester County Correctional Facility, the
defendant asked Anthony D’Amato, an inmate working
as a librarian, if there was a statute of limitations for
murder. D’Amato later dispatched a letter to the Con-
necticut prosecutors stating that the defendant ‘‘told
me that he killed his uncle . . . shot him dead then cut
him in pieces and that he was intoxicated at the time.’’
On the basis of the aforementioned evidence, the jury
reasonably could have found that in the early morning
hours on April 5, 2004, inside Gusto’s, the defendant
fired two bullets into the back of the victim’s head—
killing him instantly. The defendant cut the victim into
seven pieces and deposited each piece—head, four
limbs, and torso severed in half—into black trash bags
before dumping the body parts in New York State.
The defendant was arrested on August 19, 2008, and
charged with murder in violation of § 53a-54a. The
defendant pleaded not guilty. Prior to trial, the defen-
dant moved to dismiss the charge for lack of territorial
jurisdiction. The court determined that because the
motion to dismiss encompassed the state’s entire evi-
dence, the court would entertain the motion at the con-
clusion of the state’s evidence. When the state rested,
the court denied the defendant’s motion to dismiss. On
November 5, 2010, the jury found the defendant guilty
of murder. The defendant was sentenced to fifty years
in prison and this appeal followed.2
I
The defendant first claims that the court improperly
denied his motion to dismiss the charge of murder for
lack of territorial jurisdiction. Specifically, the defen-
dant contends that the state failed to prove beyond a
reasonable doubt that the victim was killed in Connecti-
cut. Following the state’s case-in-chief—and again at
the close of evidence—the defendant moved to dismiss
the charge of murder. The trial court denied the defen-
dant’s motion, finding that it had territorial jurisdiction
to adjudicate the crime charged. We conclude that there
was ample evidence to support the trial court’s findings
and its determination that it had territorial jurisdiction.
To adjudicate a charge of murder, it is well estab-
lished that the state carries the burden of proving terri-
torial jurisdiction. Consistent with the general rule that
our courts will punish only offenses committed within
the territory of our state, the state must prove that the
killing charged in the information occurred within the
territorial borders of Connecticut. See General Statutes
§ 51-1a (b); State v. Volpe, 113 Conn. 288, 294, 155 A.
223 (1931).
‘‘In reviewing the sufficiency of the evidence to sup-
port [territorial jurisdiction] we apply a two-part test.
First, we construe the evidence in the light most favor-
able to sustaining the [finding of territorial jurisdiction].
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [court] reasonably could have concluded that the
cumulative force of the evidence established [that the
murder occurred in Connecticut].’’ (Internal quotation
marks omitted.) State v. Na’im B., 288 Conn. 290, 295–
96, 952 A.2d 755 (2008). On the basis of our review
of the record, we conclude that there was sufficient
evidence for the trial court to have found that the vic-
tim’s murder took place in Connecticut beyond a rea-
sonable doubt.3
The evidence at trial established that the defendant
and the victim were business partners who operated a
restaurant together in Danbury. On the evening of April
4, 2004, the defendant and the victim ate dinner together
before returning to Gusto’s; the victim was intoxicated.
At approximately 2 a.m. on April 5, 2004, Braden wit-
nessed the victim crawling out of Gusto’s on his hands
and knees, trying to ‘‘get away,’’ before the defendant
physically dragged him back into the restaurant. After
this moment, the victim was never again seen alive.
Later, at approximately 3:30 a.m., Braden saw the defen-
dant park a white van in front of Gusto’s and remove
boxes from it. A similar white van was later observed
at 8:10 a.m. by Ovadek, during the first week of April,
2004, parked in the area where the victim’s body was
later discovered.
Alarm system records and telephone records also
supported the court’s conclusion that the murder
occurred in Connecticut. One record from Gusto’s secu-
rity system indicated that the alarm system was dis-
armed shortly after midnight on April 4, 2004, and armed
at 3:59 a.m. on April 5, 2004. This evidence, and Braden’s
testimony that she observed the defendant park a van in
front of Gusto’s at 3:30 a.m., contradicts the defendant’s
statement to police that ‘‘he was certain he left [Gusto’s]
no later than 1:30 a.m.’’ and stayed at his apartment the
rest of the night. Moreover, the defendant’s cell phone
records indicate that at approximately 9 a.m. on April
5, 2004, prior to opening Gusto’s at 11 a.m., the defen-
dant was near the site in New York where the victim’s
body parts were later discovered.
In addition, forensic evidence supported the state’s
charge that the murder occurred in Connecticut. The
victim’s body parts were clothed in the same attire that
the defendant reported that the victim wore on April
4-5, 2004, at Gusto’s. Given the level of decomposition
and maggot development, William Krinsky, a forensic
entomologist, determined that the victim’s body parts
had been disposed of between April 5, 2004, and April
9, 2004. An autopsy revealed that the victim had undi-
gested food and alcohol in his stomach, consistent with
the victim’s having consumed food three to four hours
prior to death. The victim also had 0.28 grams percent-
age of alcohol in his blood. On the basis of his review
of the autopsy report, Michael Baden, chief forensic
pathologist for the New York State Police, testified that
alcohol concentration in the victim’s blood was more
than three times the legal limit allowed for operating
a motor vehicle in New York.4 Baden concluded that
the autopsy report, ambient air temperature for April,
2004, and level of decomposition and maggot develop-
ment were consistent with the victim having been killed
on April 5, 2004. We observe that this evidence coincides
with the victim’s last known meal at the Inn at Newtown
and having been intoxicated.
Moreover, shortly after the victim’s disappearance,
the defendant had Gusto’s carpets cleaned and eventu-
ally replaced. Although most of the carpet was recov-
ered by police, there was a portion that was never
found. There was also testimony from Radovic, a Gus-
to’s employee, that a handheld bone saw was missing
from the kitchen when he was rehired after April 5,
2004. Expert testimony revealed that the markings on
the victim’s bones was consistent with their having been
cut by a handheld bone saw.
In this case, ‘‘it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multi-
tude of facts which establishes [territorial jurisdiction]
in a case involving substantial circumstantial evidence.’’
(Internal quotation marks omitted.) State v. Na’im B.,
supra, 288 Conn. 296.
On the basis of the collective weight of the evidence
presented during trial, construing the evidence in the
light most favorable to sustaining the trial court’s find-
ing; id., 295–96; we conclude that the trial court properly
determined that the victim’s murder occurred in Con-
necticut, and therefore, that the court had territorial
jurisdiction to adjudicate the charge of murder.
II
The defendant next claims that the court improperly
denied his motion to suppress evidence. Specifically,
the defendant argues that his fourth amendment rights
were violated when his security system service provider
disclosed to the police a panel-log5 indicating when his
alarm system was armed or disarmed because he had
a reasonable expectation of privacy in this information.
We disagree.
At trial, the state elicited testimony from James Cor-
bett, a partner of United Alarm Services (United). Cor-
bett testified that United contracted with Gusto’s to
provide security alarm services and that on April 21,
2004, the police requested information pertaining to the
burglar alarm at Gusto’s. Corbett complied with the
request, and gave police a two page document. Corbett
obtained this information by remotely connecting to
Gusto’s security system panel and downloading data
stored in the panel’s memory. The first page of the
document contained general subscriber information;
the second page, the panel-log, showed alarm panel
activity from March 30, 2004, until April 21, 2004. The
information on the second page was computer gener-
ated and indicated the date and time the alarm system
was either armed or disarmed.
The defendant objected to the panel-log’s admission
into evidence and orally moved to suppress the panel-
log, arguing that it was obtained by the police in viola-
tion of his fourth amendment rights. The issue was
briefed, and the court held a suppression hearing at
which Corbett testified.
On the basis of Corbett’s testimony, the court found
the following facts. In January, 2003, a business partner
of the defendant, David Morganelli,6 executed a moni-
toring agreement with United on behalf of Gusto’s. Mor-
ganelli listed the defendant as a contact person, but
there is no evidence linking the defendant to the execu-
tion of the monitoring agreement. One page of the moni-
toring agreement, entitled ‘‘Subscriber Information
Sheet,’’ warned that ‘‘[t]his information may be provided
to the Police or Fire Department upon request.’’
The court found that the alarm system was controlled
by a central control panel (panel) that was connected
to United’s operation center over a telephone wire.
Although the panel was owned by Gusto’s and located
within the restaurant, the panel was operated by soft-
ware that was designed and owned by United. The soft-
ware controlled the basic operation of the alarm system
and automatically logged information in the panel’s
memory. United provided a single passcode for Gusto’s
security system. There was no evidence as to how many
of Gusto’s employees had access to the passcode and
because the passcode was shared, there is no way to
determine who armed or disarmed the system. Upon
entry of the passcode, the panel records the date, time
of day, and whether the system is being armed or dis-
armed. It is this data that formed the basis of the
panel-log.
Although the panel did not transmit this information
directly to United, United had the ability to access the
panel’s memory and operations remotely over the tele-
phone connection. It was common for United to
remotely connect into a panel to perform basic mainte-
nance, including adjusting the panel’s internal clock.
The defendant did not have access to the information
stored in the panel; the only means of accessing the
data was through United’s remote connection software
and downloading the information onto United’s com-
puters. There was no evidence that the defendant ever
knew that this information was being recorded by the
security system.
The court concluded, on the basis of its findings, that
the defendant had failed to prove ‘‘either a subjective
expectation of privacy in the [panel-log] or an objective
expectation of privacy . . . that society is willing to
recognize as reasonable, in light of the [monitoring
agreement] itself,’’ and ‘‘the fact that the information
was willingly transferred to a third party . . . as part
of the contract . . . .’’ The court denied the defendant’s
motion to suppress.
In reviewing a denial of a motion to suppress, our
standard of review is well established. The trial court’s
factual findings will be upheld so long as they are not
clearly erroneous, but where the defendant challenges
the trial court’s legal conclusions, our review is plenary
and we must determine whether these legal conclusions
are ‘‘legally and logically correct and whether they find
support in [the trial court’s] decision . . . .’’ (Internal
quotation marks omitted.) State v. Boyd, 295 Conn. 707,
717, 992 A.2d 1071 (2010), cert. denied, U.S. ,
131 S. Ct. 1474, 179 L. Ed. 2d 314 (2011).
‘‘The touchstone of Fourth Amendment analysis is
whether a person has a constitutionally protected rea-
sonable expectation of privacy.’’ (Internal quotation
marks omitted.) California v. Ciraolo, 476 U.S. 207,
211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986). ‘‘Absent
such an expectation, the subsequent police action has
no constitutional ramifications. . . . In order to meet
this rule of standing . . . a two-part subjective/objec-
tive test must be satisfied: (1) whether the [person con-
testing the search] manifested a subjective expectation
of privacy with respect to [the invaded premises]; and
(2) whether that expectation [is] one that society would
consider reasonable. . . . The burden of proving the
existence of a reasonable expectation of privacy rests
on the defendant.’’ (Citation omitted; internal quotation
marks omitted.) State v. Boyd, supra, 295 Conn. 718.
In this case, the defendant has not established that
he had a reasonable expectation of privacy in the panel-
log because he did not know that the information con-
tained in the panel-log even existed, and there was no
evidence that he intended to keep this information
private.
Although the panel-log information was not directly
transmitted to United, it had the authority to remotely
connect and download information from the security
system without the defendant’s permission, pursuant
to the monitoring agreement.7 This operational informa-
tion is of the type that one reasonably would expect to
be shared with a monitoring company, as it relates
directly to the operation of the security system and
the service United was under contract to provide. See
United States v. Kennedy, 81 F. Supp. 2d 1103, 1110
(D. Kan. 2000) (defendant’s fourth amendment rights
were not violated when service provider turned over
subscriber information, as there is no expectation of
privacy in information provided to third parties). As
the trial court aptly noted, the sharing of information
with a third party is a fundamental element of a secu-
rity system.8
It is well established that ‘‘[a person] takes the risk,
in revealing his affairs to another, that the information
will be conveyed by that person to the Government . . .
[and] that the Fourth Amendment does not prohibit the
obtaining of information revealed to a third party and
conveyed by him to Government authorities, even if
the information is revealed on the assumption that it will
be used only for a limited purpose and the confidence
placed in the third party will not be betrayed.’’ (Citation
omitted; emphasis added.) United States v. Miller, 425
U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976).
The defendant agreed to reveal information to a third
party and was warned that this information could be
disclosed to the police. We acknowledge that technolog-
ical advances and the erosion of privacy stemming from
our society’s increasing propensity to share information
present new and challenging evidentiary issues. Given
the facts of this case, however, the police acquisition
of the panel-log did not violate the defendant’s fourth
amendment rights.
III
The defendant next claims that the trial court improp-
erly admitted the panel-log into evidence under the
business record exception to the hearsay rule. Specifi-
cally, the defendant argues that the court abused its
discretion because (1) the panel-log was not kept within
the ordinary course of business and (2) the information
contained in the panel-log was not transmitted by any-
one with a business duty to transmit such information.
The state, on the other hand, contends that the court
properly admitted the panel-log as a business record.
Because we conclude that the panel-log does not impli-
cate the hearsay rule, the defendant’s evidentiary
claim fails.9
At trial, Corbett testified that United contracted with
Gusto’s to provide security monitoring services and that
he was familiar with the operation of the particular
security system at Gusto’s. The state sought to intro-
duce the panel-log under the business record exception
to the hearsay rule. The defendant objected, specifying
that the panel-log was not kept in the ordinary course
of business. The court disagreed and overruled the
objection.10
Generally, our standard of review pertaining to the
review of the trial court’s evidentiary rulings is abuse
of discretion; State v. Gonzalez, 272 Conn. 515, 542, 864
A.2d 847 (2005); however, ‘‘[t]o the extent a trial court’s
admission of evidence is based on an interpretation of
the [Connecticut] Code of Evidence, our standard of
review is plenary. For example, whether a challenged
statement properly may be classified as hearsay and
whether a hearsay exception properly is identified are
legal questions demanding plenary review.’’ State v.
Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007).
It is hornbook law that, absent an exception, hearsay
is inadmissible. Pursuant to Connecticut Code of Evi-
dence § 8-1, hearsay is ‘‘a statement, other than one
made by the declarant while testifying at the proceed-
ing, offered in evidence to establish the truth of the
matter asserted.’’ Our code defines ‘‘declarant’’ as ‘‘a
person who makes a statement’’ and a ‘‘statement’’ as
‘‘an oral or written assertion’’ or the ‘‘non-verbal con-
duct of a person, if it is intended by the person as an
assertion.’’ Conn. Code Evid. § 8-1.
We observe that many computerized records require
consideration of the hearsay rule because the electronic
record at issue is based on the statement of a human
declarant. Computer printouts that contain stored
human statements are hearsay when introduced for the
truth of the matter asserted in those statements. See
United States v. Ruffin, 575 F.2d 346, 356 (2d Cir. 1978).
This is the case with electronic bank records or other
documents that, while stored in an electronic format,
are clearly based on the statement of a human being.
See, e.g., Silicon Valley Bank v. Miracle Faith World
Outreach, Inc., 140 Conn. App. 827, 836, 60 A.3d 343,
cert. denied, 308 Conn. 930, 64 A.3d 119 (2013). The
out-of-court declarant in such a case would typically
be the bank clerk, patron, or whoever supplied the
information that was entered into a computer.
Not all computerized records, however, are hearsay.
As in this case, records that are entirely self-generated
by a computer do not trigger the hearsay rule because
such records ‘‘are not the counterpart of a statement
by a human declarant . . . .’’ 2 C. McCormick, Evi-
dence (J. Strong ed., 4th Ed. 1992) § 294. Stated differ-
ently, the hearsay rule is inapplicable because the
opposing party is not deprived of an opportunity to
cross-examine an out-of-court declarant when one does
not exist and there is no danger of a ‘‘bare untested
assertion of a witness . . . .’’ 5 J. Wigmore, Evidence
(Chadbourn Rev. 1974) § 1362, p. 3.
For instance, ‘‘[w]hen an electronically generated
record is entirely the product of the functioning of a
computerized system or process, such as the ‘report’
generated when a fax is sent showing the number to
which the fax was sent and the time it was received,
there is no ‘person’ involved in the creation of the
record, and no ‘assertion’ being made. For that reason,
the record is not a statement and cannot be hearsay.’’
Lorraine v. Markel American Ins. Co., 241 F.R.D. 534,
564 (D. Md. 2007); see also United States v. Lamons,
532 F.3d 1251, 1263–64 (11th Cir.) (raw phone billing
data not hearsay because it was ‘‘stated’’ by the
machine, not by a person), cert. denied, 555 U.S. 1009,
129 S. Ct. 524, 172 L. Ed. 2d 384 (2008).
In this case, the state introduced the panel-log into
evidence. As Corbett testified, the panel was pro-
grammed to record automatically every time the alarm
was either activated or deactivated. When the correct
passcode was entered, the panel recorded the date,
time, and whether the system was being armed or dis-
armed.11 The panel-log merely was a printout of this
information and did not contain the statement of a
declarant.
We find persuasive the reasoning of one of our sister
courts where it observed: ‘‘[T]he printout offered as
evidence in this case [is different] from printouts of
human statements fed into the computer. Since the
computer was programmed to record its activities . . .
the printout simply represents a self-generated record
of its operations, much like a seismograph can produce
a record of geophysical occurrences, a flight recorder
can produce a record of physical conditions onboard
an aircraft, and an electron microscope can produce a
micrograph, which is a photograph of things too small
to be viewed by the human eye.
‘‘We [need not consider the] defendant’s contention
that the printout in this case was not properly qualified
as a business record, since we find that such a founda-
tion was not required. The printout of the results of the
computer’s internal operations is not hearsay evidence.
It does not represent the output of statements placed
into the computer by out of court declarants. Nor can
we say that this printout itself is a ‘statement’ constitut-
ing hearsay evidence.’’ (Footnote omitted.) State v.
Armstead, 432 So. 2d 837, 840 (La. 1983); see also Mur-
ray v. State, 804 S.W.2d 279, 284–85 (Tex. App. 1991)
(record of electronic keycard access to hotel room not
statement of person and not hearsay) (petition for dis-
cretionary review refused, September 18, 1991).
Accordingly, we conclude that the court did not err
when it overruled the defendant’s objection to the
panel-log as a business record because it was not hear-
say as a matter of law.12
IV
Finally, the defendant claims that the trial court
abused its discretion by giving the jury a consciousness
of guilt instruction. We disagree.
The following additional facts are relevant to the
resolution of this claim. The state requested that the
court give the jury a consciousness of guilt instruction
on the basis of evidence that the defendant (1) had lied
to police officers as to his whereabouts the morning of
Gusto’s, and (3) telephoned a state’s witness prior to
trial and requested that the witness not say anything
that would be damaging to him.13 During the charging
conference, the court stated that it would give a generic
instruction with respect to consciousness of guilt.14 The
defendant did not object to the instruction as given.15
The defendant failed to object to the court’s issuance
of a consciousness of guilt instruction; accordingly, this
claim is not properly before us and will not be consid-
ered. See State v. Washington, 28 Conn. App. 369, 372–
73, 610 A.2d 1332 (consciousness of guilt instruction
merely stating permissive inference not constitutional
in nature and must be properly objected to at trial),
cert. denied, 223 Conn. 926, 614 A.2d 829 (1992).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Cell phone records confirm that this call was made, but indicate that it
was for a zero second duration, belying the defendant’s statement that he
left a voice mail message. According to the testimony of Anthony Iaquinto,
a senior inspector with the United States Marshal Service familiar with
cell phone protocols, a voice mail message cannot be recorded without
registering a call duration greater than zero.
2
The appeal was filed in the Supreme Court and then transferred to this
court pursuant to Practice Book § 65-1.
3
We need not address the state’s contention that territorial jurisdiction
must be proven only by a preponderance of the evidence, given our conclu-
sion that territorial jurisdiction in this case has been proven by the more
demanding ‘‘beyond a reasonable doubt’’ standard. In its brief, the state
contends that this issue requires further elucidation: ‘‘Although in State v.
Ross, 230 Conn. 183, 195–96, 646 A.2d 1318 (1994), cert. denied, 513 U.S.
1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), our Supreme Court stated
that the state was required to prove territorial jurisdiction beyond a reason-
able doubt, not only is this statement dicta . . . [but the Supreme Court]
misread State v. Beverly, 224 Conn. 372, 618 A.2d 1335 (1993). In Beverly,
our Supreme Court did not rule that the state bore the burden of proving
territorial jurisdiction beyond a reasonable doubt. Rather, the trial court
had imposed that burden in denying the defendant’s motion for [a] judgment
of acquittal based on lack of territorial jurisdiction, on appeal the state
argued that the applicable quantum of proof was a preponderance of the
evidence, and the Supreme Court declined to address this issue, contending
instead that ‘[b]ecause the trial court applied the higher standard in this
case, it is not necessary that we reach this issue.’ [Id.], 376 n.5.’’
4
Baden acknowledged that postmortem decomposition and fermentation
may have increased the concentration of alcohol in the victim’s blood so
that ‘‘in this instance, even though his blood alcohol level is 0.28, which
is very high, it could be that he only had 0.18 . . . [which] is also very
high . . . .’’
5
The security system recorded in its memory the date and time the alarm
system was either armed or disarmed. The panel-log is merely a printout
of this information.
6
Later in 2003, Morganelli sold his interest in Gusto’s to the defendant.
7
We note that Gusto’s did not subscribe for an additional service that
would have transmitted the panel-log information directly to United. There
is no indication that Gusto’s particular service election was an attempt to
keep panel-log information from United.
8
Corbett testified that he frequently downloads panel-log information
from other customers for a variety of reasons:
‘‘[The Prosecutor]: . . . [W]hat would be some of the reasons that you
would go in and get that information?
‘‘[Corbett]: Oh, sometimes the owner asks, who was in the building . . .
who closed the alarm up. Sometimes they have, something’s missing, and
the police want to know, so we, you know, for break-ins, sometimes they
say—the owner will say, the alarm was never turned on; we go to verify it
was turned on. Then they say they got broken into and it was our fault the
alarm didn’t work. I’d call up, get a log and say, oh, you never turned the
alarm on. And, so there’s all tons of reasons to get a log. . . . [S]ometimes
you have to set the clocks, you have to set the calendar because a lot of
these panels have clocks and calendars back before when the government
changed the daylight savings time, they jumped it up a couple—back a
couple of weeks, vice versa. I had to go start changing clocks . . . .’’
9
Although both parties agreed that the panel-log was hearsay, we do not
share this conclusion. It is well established that ‘‘[w]e may affirm a trial
court’s decision that reaches the right result, albeit for the wrong reason.’’
State v. Albert, 50 Conn. App. 715, 728, 719 A.2d 1183 (1998), aff’d, 252 Conn.
795, 750 A.2d 1037 (2000).
10
The trial court overruled the defendant’s objection as to the admissibility
of the alarm records as business records without specification.
11
The panel-log was comprised of three columns that included a header
labeled ‘‘Date,’’ ‘‘Time,’’ and ‘‘Event.’’ One entry beneath the header read:
‘‘3-31-2004 01:50 Close: User 1.’’ Corbett testified that ‘‘Open’’ meant the
alarm was disarmed, and ‘‘Close’’ indicated that it was armed. The entries
were logged utilizing a twenty-four hour clock.
12
On appeal the defendant argues that the state failed to introduce evi-
dence that the computer record was reliable. We note that even if the panel-
log did not trigger the hearsay rule, with respect to computerized records
in general, ‘‘the proponent also must establish that the basic elements of
the computer system are reliable.’’ Federal Deposit Ins. Corp. v. Carabetta,
55 Conn. App. 369, 376, 739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d
362 (1999); State v. Dunn, 7 S.W.3d 427, 432 (Mo. App. 1999) (‘‘[b]ecause
records of this type [computer generated telephone records] are not the
counterpart of a statement by a human declarant, which should ideally be
tested by cross-examination of that declarant, they should not be treated
as hearsay, but rather their admissibility should be determined on the basis
of the reliability and accuracy of the process involved’’ [internal quotation
marks omitted]). Because the defendant failed to object as to the record’s
reliability at trial, and raises this claim for the first time on appeal, it will
not be considered. See State v. Gonzalez, 272 Conn. 515, 539, 864 A.2d 847
(2005) (grounds for challenging evidentiary ruling limited on appeal to those
asserted at trial).
13
The jury heard the testimony of state’s witness Stephen Nanai who
stated that the defendant had called him prior to trial to discuss whether
Nanai had ‘‘embellished’’ a statement he made to police. Nanai had told
police investigators that he had seen the defendant on a previous occasion
fire a gun at two people. Nanai testified at trial that the defendant ‘‘wanted
to make sure that if [he] got called to testify, [he] wouldn’t say anything
that was damaging to him.’’
14
The court charged the jury as follows: ‘‘In a criminal trial, it is permissible
for the state to show that conduct or statements made by a defendant after
the time of the alleged offense may have been influenced by the criminal
act; that is, the conduct or statements show a consciousness of guilt. Such
an act, however, does not raise a presumption of guilt. If you find the
evidence proved and also find that the act was influenced by the criminal
act and not by any other reason, you may, but are not required to infer from
this evidence that the defendant has acted from a guilty conscience. It is
up to you as the judges of the fact[s] to decide whether the defendant’s
action, if proved, reflect[s] a consciousness of guilt and to consider such
in your deliberations in conformity with these instructions.’’
15
In his brief, the defendant claims that he objected to the court’s decision
to give the jury a consciousness of guilt instruction. On the basis of our
review of the record, including the transcripts of the charging conference,
we conclude that no such objection was made.