State v. Sumler

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STATE OF CONNECTICUT v. JAMAL SUMLER
(AC 43024)
Prescott, Devlin and Bishop, Js.
Syllabus
Convicted, after a jury trial, of the crimes of murder, conspiracy to commit
robbery in the first degree and carrying a pistol without a permit, and,
after a trial to the court, of the crime of criminal possession of a pistol or
revolver, the defendant appealed. The defendant’s conviction stemmed
from an incident in which he shot and killed a convenience store clerk
while he and another individual were robbing the store. Prior to trial, the
defendant filed a motion in limine to preclude the state from introducing
testimony from his former probation officer, D, regarding her identifica-
tion of him in a surveillance video from a grocery store, and a motion
to suppress two statements that he made during a conversation with a
police officer while he was being transported to the police department
following his arrest for violation of probation. Following a hearing, the
trial court denied both motions. Held:
1. The defendant’s unpreserved claim that the trial judge violated his constitu-
tional right to due process by improperly failing to recuse himself from
presiding over the defendant’s trial because he previously had signed
search and seizure and arrest warrants against the defendant in this
case was unavailing: because the defendant did not assert actual bias
on the part of the trial judge, his claim necessarily failed, and, therefore,
he could not prevail pursuant to State v. Golding (213 Conn. 233),
as he did not demonstrate the existence of a constitutional violation;
moreover, this court was not persuaded by the defendant’s assertion
that the trial judge’s failure to recuse himself constituted plain error
because, at minimum, it created an appearance of impropriety, as the
judge’s conduct was not expressly prohibited by our rules, statutes, or
case law, and, therefore, it did not constitute plain error or even error
at all.
2. The trial court did not abuse its discretion in admitting D’s testimony
identifying the defendant in the surveillance video from the grocery
store; contrary to the defendant’s contention that D’s testimony consti-
tuted her opinion on an ultimate issue reserved to the jury, namely, his
criminal culpability, in violation of the applicable rule (§ 7-3) of the
Connecticut Code of Evidence, and, although the defendant’s presence
in the grocery store may have been relevant to his participation in the
acts that were committed at the convenience store, D did not express
an opinion regarding the identity of the person who committed the
crimes at the convenience store, and, therefore, her testimony did not
constitute a legal opinion about the defendant’s guilt as to the crimes
with which he was charged.
3. The defendant could not prevail on his claim that the trial court improperly
denied his motion to suppress the statements he made to a police officer
while he was being transported to the police department following his
arrest, which was based on his claim that those statements were made
during custodial interrogation without his being advised of his rights
pursuant to Miranda v. Arizona (384 U.S. 436); the trial court properly
determined that the officer’s conversation with the defendant did not
constitute custodial interrogation for Miranda purposes because the
officer’s questions were not reasonably likely to elicit incriminating
statements from the defendant.
Argued March 9—officially released July 21, 2020
Procedural History
Substitute information charging the defendant with
the crimes of felony murder, murder, conspiracy to
commit robbery in the first degree, criminal possession
of a pistol or revolver and carrying a pistol without a
permit, brought to the Superior Court in the judicial
district of New Haven, where the court, Vitale, J.,
granted the defendant’s motion to sever the charge of
criminal possession of a pistol or revolver; thereafter,
the court denied the defendant’s motions to preclude
certain evidence; subsequently, the charges of felony
murder, murder, conspiracy to commit robbery in the
first degree and carrying a pistol without a permit were
tried to the jury before Vitale, J., and the charge of
criminal possession of a pistol or revolver was tried to
the court; verdict and judgment of guilty; thereafter,
the court vacated the conviction of felony murder, and
the defendant appealed. Affirmed.
Naomi T. Fetterman, with whom, on the brief, was
Peter G. Billings, for the appellant (defendant).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were Patrick Griffin, state’s
attorney, and Lisa D’Angelo, assistant state’s attorney,
for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Jamal Sumler, appeals
from the judgment of conviction rendered following a
trial in which a jury found him guilty of felony murder
in violation of General Statutes § 53a-54c, murder in
violation of General Statutes § 53a-54a (a), conspiracy
to commit robbery in the first degree in violation of
General Statutes §§ 53a-48 (a) and 53a-134 (a) (2), and
carrying a pistol without a permit in violation of General
Statutes § 29-35 (a), and the trial court, Vitale, J., found
him guilty of criminal possession of a pistol or revolver
in violation of General Statutes § 53a-217c (a) (1). The
defendant claims that the court (1) improperly failed
to recuse itself from the defendant’s trial because Judge
Vitale previously had signed warrants for the defen-
dant’s arrest and for the search of his home, (2) abused
its discretion by allowing opinion testimony of the
defendant’s identity on video surveillance footage, and
(3) improperly denied the defendant’s motion to sup-
press statements that he made to a police officer while
being transported to the police department. We disagree
and, therefore, affirm the judgment.
The following facts, which reasonably could have
been found by the respective finder of fact, and proce-
dural history are relevant to this appeal. On April 6,
2015, the defendant and two other individuals, Dwayne
‘‘Hoodie’’ Sayles and Leighton Vanderberg, were travel-
ling together in a green Ford Focus driven by Vanderb-
erg. The defendant sat in the front passenger seat and
was wearing sweatpants, a gray hoodie, and dark sneak-
ers. Sayles sat in the backseat and was wearing gray
sweatpants, a white T-shirt, and white sneakers.1
The three men drove to Eddy’s Food Centre (Eddy’s)
located at 276 Howard Avenue in Bridgeport. Once they
arrived, the defendant exited the car, while Vanderberg
and Sayles remained inside. Before going into the store,
the defendant removed a black revolver from his waist-
band and put it in the center console of the car. He
went into Eddy’s for a few minutes, returned to the car,
and then went back into the store a second time. Upon
his return to the car the second time, the defendant
handed Sayles a pair of black gloves. He also retrieved
his revolver and put it in the waistband of his
sweatpants.
Thereafter, the three men drove to the Fair Haven
section of New Haven. Vanderberg pulled onto Kendall
Street toward Fulton Terrace and parked the car,
intending to smoke ‘‘dutches.’’2 Not having enough
cigars, someone suggested that they buy more cigars
from a nearby store. The defendant and Sayles then
exited the vehicle and walked up Fulton Terrace, with
the defendant a few steps in front of Sayles, while Vand-
erberg remained in the car. The defendant entered the
Pay Rite convenience store (Pay Rite) connected to a
CITGO gas station located at 262 Forbes Avenue.
Pay Rite surveillance videos captured the defendant,
wearing a black mask, black gloves, a gray hoodie, gray
sweatpants, and dark sneakers, walk to the counter and
point a gun at the clerk, Sanjay Patel, the victim in this
case. While pointing the gun at the victim, the defendant
walked behind the counter. The surveillance footage
captured a second individual—later determined to be
Sayles—dressed in a black mask and black gloves, a
navy blue hoodie, black sweatpants, and white sneak-
ers, entering the store and walking up to the counter.
The victim struggled with the defendant and picked up
a wooden stool. Sayles then pulled out a gun, aimed it
at the victim, fired, and put the gun away in his hoodie
pocket. The defendant, pointing his gun at the victim,
used his other hand to pass items over the counter to
Sayles, who put the items in his pocket before turning
and leaving the store. As the defendant bent down to
take more items, the victim hit him on his upper body
with the stool. The defendant then shot the victim and
ran out of the store. The victim subsequently died from
his injuries.3
A witness, Jonathan Gavilanes, who was across the
street from Pay Rite with his father, heard the gunshots
and saw flashes. Subsequently, he saw the defendant
and Sayles run out of the store onto Fulton Terrace.
Gavilanes’ father checked inside Pay Rite and directed
Gavilanes to call 911.4
Meanwhile, Sayles was the first to return to the car;
he was still wearing the black gloves and holding a box
of cigars. The defendant followed soon thereafter. The
three men then drove toward Church Street South, an
apartment complex where Sayles’ apartment was
located. After they parked in a nearby parking lot, Sayles
threw the navy blue sweatshirt that he had been wearing
into a dumpster. He also took the cigars out of their
box and threw the box in the dumpster. Sayles then
gave Vanderberg some cigars and twenty dollars as a
contribution to gas money.
The three men then went to Sayles’ apartment. Once
inside, Vanderberg asked Sayles and the defendant
about what had happened at Pay Rite. At first, neither
individual told Vanderberg any specific details regard-
ing the incident. Later, however, the defendant admitted
to Vanderberg that he had ‘‘stretched’’ the store clerk,
which Vanderberg testified at trial meant to him that
the defendant had robbed the clerk.5
Vanderberg did not learn of the death of the victim
until the next morning, when one of his friends asked
if he had heard about it. He later saw news coverage
of the incident at Pay Rite. After seeing the coverage,
Vanderberg contacted the police and provided a state-
ment on April 14, 2015.6 When shown still photographs
from the surveillance video from Pay Rite at the time
of the incident, Vanderberg identified the subjects as
the defendant and Sayles. On April 15, 2015, the police
also obtained video surveillance footage from Eddy’s,
which showed the defendant purchasing a pair of dark
colored gloves before leaving the store, reentering the
store shortly thereafter, and purchasing a second pair
of dark colored gloves.
On April 17, 2015, the defendant was arrested at his
home on a warrant for violating his probation. The
police immediately applied for a search and seizure
warrant for his home, asserting that there was probable
cause to believe that evidence of the robbery and mur-
der that took place at Pay Rite would be found therein.
The court, Vitale, J., reviewed the application and
issued a search and seizure warrant for the defen-
dant’s home.7
On May 14, 2015, the police submitted an application
for an arrest warrant, asserting that probable cause
existed to charge the defendant for the robbery and
murder of the victim. Judge Vitale also reviewed this
application and issued the arrest warrant. The state
subsequently filed a long form information charging the
defendant with felony murder, murder, conspiracy to
commit robbery in the first degree, criminal possession
of a pistol or revolver, and carrying a pistol without
a permit.
The defendant elected a jury trial but moved to sever
the count alleging criminal possession of a pistol or
revolver and sought a bench trial on that count.8 The
motion was granted, and the state filed two substi-
tute informations.
Prior to trial, the defendant also filed a motion in
limine to preclude the state from introducing testimony
from the defendant’s former probation officer, Jayme
DeNardis, concerning her identification of the defen-
dant in the Eddy’s surveillance footage. Citing State v.
Finan, 275 Conn. 60, 881 A.2d 187 (2005), the defendant
argued that DeNardis’ testimony was inadmissible
because it pertained to an ultimate issue of fact for the
trier, namely, whether the defendant was the individual
who committed the crimes. The court denied the motion
in limine.
The defendant also filed a motion to suppress two
statements that he made to the police following his
arrest but before he was advised of his constitutional
rights: ‘‘I’m infatuated with guns,’’ and ‘‘I always wanted
to be a bank robber.’’ The defendant argued that the
admission of these statements would infringe on his
Miranda rights.9 The court denied the motion to
suppress.
The trial began on October 31, 2017, and concluded
on November 7, 2017. The jury found the defendant
guilty of all counts submitted to it.10 The court found the
defendant guilty of the charge of criminal possession
of a pistol or revolver. The defendant subsequently was
sentenced to a total effective sentence of ninety years
of incarceration. This appeal followed.11
I
The defendant first claims that the trial judge improp-
erly failed to recuse himself from presiding over the
defendant’s trial after having signed search and seizure
and arrest warrants against the defendant in this matter.
This claim is unpreserved because the defendant failed
to seek the disqualification of Judge Vitale in the trial
court. Without conceding that the claim is unpreserved,
the defendant asserts that he nonetheless would be
entitled to prevail on this claim pursuant to the stan-
dards set forth in State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015), or pursuant
to the plain error doctrine. See Blumberg Associates
Worldwide, Inc. v. Brown & Brown of Connecticut,
Inc., 311 Conn. 123, 150, 84 A.3d 840 (2014). Specifically,
the defendant asserts that the court’s conduct ‘‘deprived
[him] of a fair determination of guilt, in violation of
his rights under article first, § 8, of the Connecticut
constitution and his right to due process of law under
the state and federal constitutions, U.S. Const., amends.
V [and] XIV; Conn. Const., art. I, §§ 8 [and] 9.’’ We
disagree.
Generally, we do not consider claims of error on
appeal that were not properly raised before the trial
court. See Practice Book § 60-5. Unpreserved claims of
constitutional error, however, may be reviewed when
they allege the violation of a constitutional right. Under
Golding, ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt.’’ (Emphasis in original; footnote omitted.) State
v. Golding, supra, 213 Conn. 239–40.
Specifically, as it relates to judicial disqualification,
the question under Golding ‘‘is not whether the trial
judge’s failure to disqualify himself constituted an abuse
of discretion, but whether that failure resulted in a
violation of the defendant’s constitutional right to due
process. The United States Supreme Court consistently
has held that a judge’s failure to disqualify himself or
herself will implicate the due process clause only when
the right to disqualification arises from actual bias on
the part of that judge.’’ (Emphasis in original.) State v.
Canales, 281 Conn. 572, 593–94, 916 A.2d 767 (2007).
‘‘Recusal is required when, objectively speaking, the
probability of actual bias on the part of the judge or
[decision maker] is too high to be constitutionally toler-
able.’’ (Internal quotation marks omitted.) Rippo v.
Baker, U.S. , 137 S. Ct. 905, 907, 197 L. Ed. 2d
167 (2017).
In the present case, the defendant fails to allege any
actual bias on the part of the trial judge. In his appellate
brief, the defendant points to the existence of ‘‘an
appearance that the judge was not fair and impartial
in this case and that is contrary to the appearance
of justice.’’ The law is clear, however, that the mere
appearance of bias is insufficient to implicate a due
process violation. See State v. Canales, supra, 281 Conn.
594. Because the defendant has not asserted actual bias
on the part of Judge Vitale, his claim that his constitu-
tional right to due process was violated necessarily
fails. See id. Therefore, the defendant cannot prevail
pursuant to Golding because he has not demonstrated
the existence of a constitutional violation.
We turn next to the defendant’s argument that Judge
Vitale’s failure to recuse himself as the trial judge and
as the trier of fact with respect to the charge of criminal
possession of a pistol or revolver despite his earlier role
in signing the search and seizure and arrest warrants
constitutes plain error because, at a minimum, it created
an appearance of impropriety. We disagree.
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record. . . . In State v.
Fagan, [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert.
denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236
(2007)], we described the two-pronged nature of the
plain error doctrine: [An appellant] cannot prevail under
[the plain error doctrine] . . . unless he demonstrates
that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in
manifest injustice.’’ (Emphasis in original; internal quo-
tation marks omitted.) State v. Jamison, 320 Conn. 589,
596–97, 134 A.3d 560 (2016).
The defendant concedes that ‘‘[t]here is no statute
or rule that expressly prohibits a judge who issues an
arrest warrant or search warrant for a particular defen-
dant, from later presiding at that defendant’s trial.’’
Nonetheless, he seems to argue that, under the totality
of the circumstances, the court’s failure to recuse itself
constitutes a violation of the Code of Judicial Conduct
and, thereby, a violation of Practice Book § 1-22 (a).
Practice Book § 1-22 (a) provides in relevant part: ‘‘A
judicial authority shall, upon motion of either party or
upon its own motion, be disqualified from acting in a
matter if such judicial authority is disqualified from
acting therein pursuant to Rule 2.11 of the Code of
Judicial Conduct . . . .’’ Rule 2.11 of the Code of Judi-
cial Conduct expressly enumerates situations that
require disqualification, although they are not exhaus-
tive.12 The defendant argues that the provision in rule
2.11 (a) that a judge shall disqualify himself when he
has a personal bias or personal knowledge of facts in
dispute is applicable in this matter. In particular, he
argues that by reviewing and signing the search and
seizure and arrest warrants, Judge Vitale necessarily
reached conclusions about the evidence in the war-
rants, including the credibility of the state’s witnesses.
These circumstances, the defendant contends, give rise
to an appearance of impropriety as contemplated by
rule 2.11.
Although rule 2.11 (a) of the Code of Judicial Conduct
instructs that a judge shall disqualify himself or herself
when he or she has a personal bias or personal knowl-
edge of facts in dispute, our case law has explicitly
clarified that, to require recusal, a judge’s potential bias
‘‘must stem from an extrajudicial source and result in
an opinion on the merits on some basis other than what
the judge learned from his participation in the case.’’
(Internal quotation marks omitted.) Tracey v. Tracey,
97 Conn. App. 278, 283–84, 903 A.2d 679 (2006). ‘‘With
certain well-defined exceptions . . . a judge’s partici-
pation in the preliminary stages of a case, and the
knowledge he or she thereby gains, will not ordinarily
preclude his or her continued participation in the same
case thereafter.’’ (Footnote omitted.) State v. Rizzo,
303 Conn. 71, 119–20, 31 A.3d 1094 (2011), cert. denied,
568 U.S. 836, 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).13
In the present matter, to the extent that Judge Vitale
learned of facts from the warrant applications that were
not introduced at trial, and, to the extent that he made
preliminary determinations for purposes of the war-
rants, his act of presiding over the defendant’s jury trial
and serving as the trier of fact on one of the charges,
despite such involvement in the earlier proceedings, is
not expressly prohibited by our rules, statutes, or case
law. Accordingly, we are not persuaded that the court’s
conduct was plain error, or even error at all.
II
The defendant next claims that the court abused its
discretion by denying his motion in limine to preclude
DeNardis from identifying him in a still photograph and
a surveillance video from Eddy’s, because her ‘‘testi-
mony . . . constituted inadmissible lay opinion as to
the guilt of the defendant’’ under State v. Finan, supra,
275 Conn. 66, and § 7-3 (a) of the Connecticut Code of
Evidence. We disagree.
The following additional facts are relevant to this
issue. On April 17, 2015, detectives met with DeNardis,
the defendant’s previous probation officer.14 DeNardis
viewed a still photograph from video surveillance foot-
age captured from Eddy’s on April 6, 2015. She signed
the photograph and identified the defendant as the indi-
vidual in the footage and as being one of her probation-
ers. The defendant filed a motion in limine to preclude
DeNardis from testifying at trial as to the identity of
the individual captured on surveillance video footage
from Eddy’s. He claimed that her identification of him
in the video would, pursuant to Finan, constitute
improper testimony as to ‘‘the ultimate issue in ques-
tion: identity.’’
A hearing was held on October 26, 2017, during which
the state presented DeNardis and Detective Christopher
Perrone as witnesses.15 The defendant reiterated his
objection to the admission of DeNardis’ proffered testi-
mony on the basis that it constitutes her opinion about
the ultimate issue of fact—whether he was the individ-
ual on the surveillance video committing the crimes
with which he was charged—which is prohibited
under Finan.16
The court denied the defendant’s motion in limine,
concluding that the proffered evidence is not ‘‘tanta-
mount to a legal opinion about the defendant’s criminal
culpability.’’ The court summarized its findings as fol-
lows: ‘‘The record reflects that . . . DeNardis is not
claimed to be an eyewitness to the crime that occurred
in Pay Rite . . . and, further, that the crime now before
the court did not occur at Eddy’s . . . .’’ The court
then explained that the proffered evidence ‘‘does not
encompass an ultimate issue before the jury, namely,
whether the defendant was one of the individuals pres-
ent inside of the Pay Rite . . . at the time the crimes
before the jury were committed.’’ It explained that the
jury could ‘‘view the tape, the still photograph from the
tape, and the defendant himself to determine if he is
the person depicted in the video or not.’’
At trial, DeNardis testified, among other things, that,
in the course of her employment, she met with the
defendant fifty-nine times from May, 2013 to April, 2015,
and, that on April 17, 2015, she identified the defendant
in a still photograph shown to her by New Haven police.
She was shown at trial two segments from the surveil-
lance video at Eddy’s and identified the defendant as
the person in the footage. At the conclusion of the trial,
the court instructed the jury that ‘‘identification is a
question of fact for you to decide, taking into consider-
ation all of the evidence that you have seen and heard
in the course of the trial.’’
We first set forth our standard of review. ‘‘Because
of the wide range of matters on which lay witnesses
are permitted to give their opinion, the admissibility of
such evidence rests in the sound discretion of the trial
court, and the exercise of that discretion, unless abused,
will not constitute reversible error.’’ (Internal quotation
marks omitted.) State v. Finan, supra, 275 Conn. 65–66.
We begin our analysis with § 7-3 (a) of the Connecti-
cut Code of Evidence, which provides: ‘‘Testimony in
the form of an opinion is inadmissible if it embraces
an ultimate issue to be decided by the trier of fact,
except that, other than as provided in subsection (b),
an expert witness may give an opinion that embraces
an ultimate issue where the trier of fact needs expert
assistance in deciding the issue.’’ ‘‘[T]he phrase ultimate
issue is not amenable to easy definition. . . . It is
improper for a witness to offer testimony that essen-
tially constitutes a legal opinion about the guilt of the
defendant. . . . An ultimate issue is one that cannot
reasonably be separated from the essence of the matter
to be decided [by the trier of fact].’’ (Citation omitted;
internal quotation marks omitted.) State v. Holley, 160
Conn. App. 578, 617, 127 A.3d 221 (2015), rev’d on other
grounds, 327 Conn. 576, 175 A.3d 514 (2018).
The defendant argues that DeNardis’ identification
of him in the video surveillance footage constitutes her
opinion on an ultimate issue, namely, his culpability,
in violation of § 7-3 of the Connecticut Code of Evi-
dence, as interpreted by our Supreme Court in Finan.
In Finan, the defendant moved to preclude the testi-
mony of certain police officers as to their opinion that
he was depicted on surveillance footage of the armed
robbery for which he was charged. State v. Finan,
supra, 275 Conn. 62. Our Supreme Court held that the
testimony should have been precluded because the offi-
cers’ opinion went to the ultimate issue in the case,
which was ‘‘whether the defendant, and not some other
person, was one of the two [men] who had committed
the robbery.’’ (Internal quotation marks omitted.) Id.,
67.
We disagree with the defendant that DeNardis’ testi-
mony embraced an ultimate issue for the jury in the
present matter. Finan is distinguishable because the
surveillance footage in Finan depicted events that took
place at the scene of the crime for which the defendant
was charged. Here, the video that was shown to
DeNardis was from Eddy’s, an entirely separate location
from the Pay Rite where the armed robbery took place.
In Holley, this court addressed a similar issue involv-
ing the identification of a defendant in video footage
from a different location. State v. Holley, supra, 160
Conn. App. 617–18. In that case, the police disseminated
to the public still photographs of two individuals from
surveillance footage captured on a bus after the individ-
uals committed a home burglary. Id., 583–84. At trial,
a woman who knew the defendant identified him as
one of the men in the video. Id., 616. This court con-
cluded that the woman’s testimony was not precluded
by § 7-3 of the Connecticut Code of Evidence because
the testimony did not embrace an ultimate issue. Id.,
617. Specifically, this court stated that ‘‘[t]he defen-
dant’s presence on the bus . . . did not directly shed
light on [among other things] his conduct at the victim’s
residence, [or] whether the defendant had the criminal
intent related to the offenses with which he was charged
. . . .’’ Id., 618. Therefore, this court concluded that the
defendant’s presence on the bus was not ‘‘the essence
of the matters to be decided by the jury.’’ Id.
The analysis conducted by this court in Holley is
instructive in the present matter. Here, DeNardis’ testi-
mony that she recognized the defendant in the surveil-
lance video from Eddy’s did not constitute a legal opin-
ion about his guilt as to the offenses with which the
defendant was charged in this case, which occurred at
Pay Rite. Although the defendant’s presence in Eddy’s
may be relevant to his participation in acts that were
committed at Pay Rite, DeNardis did not express an
opinion regarding the identity of the person who com-
mitted the crimes at Pay Rite. Accordingly, we conclude
that DeNardis’ testimony did not constitute an opinion
on the ultimate issue reserved to the jury, and, there-
fore, the court did not abuse its discretion in admitting
the testimony.
III
Lastly, the defendant claims that the court improperly
denied his motion to suppress statements that he made
to a police officer after being arrested. Specifically, he
claims that the statements were inadmissible because
they were made as a result of custodial interrogation
and he had not received his Miranda warnings at the
time he made those statements. We disagree with the
defendant’s claim that the statements should have
been suppressed.
The following additional facts are relevant to this
claim. After the defendant was placed under arrest on
April 17, 2015, Officer Jason Aklin was tasked with
transporting him to the police department. During the
car ride, the defendant, unprompted, asked Officer
Aklin what kind of gun he carried. Officer Aklin asked
the defendant why he was concerned about that, and
the defendant replied, ‘‘I’m infatuated with guns. I love
them.’’ Officer Aklin then asked the defendant, ‘‘What
d[id] you want to be growing up?’’ The defendant
replied, ‘‘I always wanted to be a bank robber.’’ At the
station, the police provided the defendant the required
Miranda advisement.
The state sought to introduce at trial the two state-
ments that the defendant made to Officer Aklin shortly
after he was taken into custody: ‘‘I’m infatuated with
guns,’’ and ‘‘I always wanted to be a bank robber.’’ The
defendant filed a motion to suppress these statements,
arguing that he made the statements while under custo-
dial interrogation without being properly advised of his
Miranda rights. A suppression hearing was held on
October 26, 2017, during which Officer Aklin testified
to his interactions with the defendant on April 17, 2015.17
The state conceded at the suppression hearing that the
defendant was in custody and had not yet received
Miranda warnings at the time he made the statements.
The state argued, however, that, because Officer Aklin’s
questions were not reasonably likely to elicit incriminat-
ing responses from the defendant, the statements need
not be suppressed.
The court stated that ‘‘[t]he only claim or issue [it]
ha[d] been alerted to insofar as the statements are con-
cerned . . . is whether they were the product of inter-
rogation. The defendant bears the burden of proving
that interrogation occurred.’’ It found that ‘‘[t]here [was]
no evidence Officer Aklin was involved in the investiga-
tion of the crimes charged . . . [or that he] was famil-
iar with any aspect of the investigation . . . .’’ After
noting that ‘‘interrogation’’ for purposes of Miranda
refers to ‘‘words or actions on the part of the police
other than those normally [attendant] to arrest in cus-
tody that the police should know are reasonably likely
to elicit an incriminating response from the suspect,’’
the court concluded that ‘‘the two statements in ques-
tion made by the defendant were not the result of con-
duct by Officer Aklin designed to elicit incriminating
statements,’’ nor were they reasonably likely to elicit
incriminating responses from the defendant. It denied
the motion to suppress, and the statements were intro-
duced to the jury at trial.
We begin by setting forth the applicable standard of
review and governing legal principles. ‘‘Our standard
of review of a trial court’s findings and conclusions in
connection with a motion to suppress is well defined.
A finding of fact will not be disturbed unless it is clearly
erroneous in view of the evidence and pleadings in the
whole record . . . .’’ (Internal quotation marks omit-
ted.) State v. Ramos, 317 Conn. 19, 30, 114 A.3d 1202
(2015).
‘‘It is well established that the prosecution may not
use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimina-
tion. Miranda v. Arizona, [384 U.S. 436, 444, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966)]. Two threshold conditions
must be satisfied in order to invoke the warnings consti-
tutionally required by Miranda: (1) the defendant must
have been in custody; and (2) the defendant must have
been subjected to police interrogation.’’ (Internal quota-
tion marks omitted.) State v. Gonzalez, 302 Conn. 287,
294, 25 A.3d 648 (2011). ‘‘[T]he ultimate determination
. . . of whether a defendant already in custody has
been subjected to interrogation . . . presents a mixed
question of law and fact over which our review is ple-
nary, tempered by our scrupulous examination of the
record to ascertain whether the findings are supported
by substantial evidence.’’ (Internal quotation marks
omitted.) State v. Ramos, supra, 317 Conn. 30.
‘‘Whether a defendant in custody is subject to interro-
gation necessarily involves determining first, the factual
circumstances of the police conduct in question, and
second, whether such conduct is normally attendant to
arrest and custody or whether the police should know
that such conduct is reasonably likely to elicit an incrim-
inating response.’’ (Internal quotation marks omitted.)
Id., 29. ‘‘The defendant bears the burden of proving
custodial interrogation. . . . [T]he definition of inter-
rogation [for purposes of Miranda] can extend only to
words or actions on the part of police officers that they
should have known were reasonably likely to elicit an
incriminating response. . . . The test as to whether a
particular question is likely to elicit an incriminating
response is objective; the subjective intent of the police
officer is relevant but not conclusive and the relation-
ship of the questions asked to the crime committed is
highly relevant.’’ (Emphasis in original; internal quota-
tion marks omitted.) State v. Smith, 321 Conn. 278,
288–89, 138 A.3d 223 (2016).
In the present case, we conclude that the trial court
properly determined that Officer Aklin’s conversation
with the defendant did not constitute custodial interro-
gation for Miranda purposes because Officer Aklin’s
questions were not reasonably likely to elicit incriminat-
ing responses from the defendant. In regard to the
defendant’s first statement (‘‘I’m infatuated with guns’’),
the record reveals that it was the defendant, and not
Officer Aklin, who initiated the exchange between the
two by asking the officer about his firearm. It was only
in response to the defendant’s spontaneous question
that Officer Aklin questioned why the defendant was
concerned with what type of firearm he carried. Even
though the exchange that led to the defendant’s second
statement (‘‘I always wanted to be a bank robber’’) was
initiated by Officer Aklin, we are of the view that both
of Officer Aklin’s questions were merely conversational
in nature and not made for purposes of eliciting inculpa-
tory statements from the defendant. See State v. Vitale,
197 Conn. 396, 412, 497 A.2d 956 (1985) (statements
made by defendant during general conversation with
officer were not result of interrogation). In fact, regard-
ing the second statement, the record indicates that Offi-
cer Aklin asked the defendant what he wanted to be
when he grew up to change the subject away from
firearms, a subject that made the officer uneasy. See
State v. Labarge, 164 Conn. App. 296, 316, 134 A.3d 259
(there was no interrogation where officer’s questions
to defendant were made as conversation intended to
defuse stressful process and not for purposes of solicit-
ing incriminating information), cert. denied, 321 Conn.
915, 136 A.3d 646 (2016). Moreover, Officer Aklin was
not privy to the investigation of the crimes at issue
before us. The defendant was arrested for an unrelated
violation of probation, and, thus, it would be unreason-
able to conclude that Officer Aklin reasonably should
have anticipated that his questions would elicit incrimi-
nating responses regarding crimes for which the officer
was unaware.
For the foregoing reasons, we are not persuaded that,
in his exchanges with the defendant on the way to the
police department, Officer Aklin should have known
that his questions were reasonably likely to elicit incrim-
inating statements from the defendant. Accordingly, we
conclude that the court properly denied the defendant’s
motion to suppress the statements he made to Officer
Aklin while in custody.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At some point, Vanderberg gave Sayles a navy blue sweatshirt from his
car, which Sayles put on over his white T-shirt.
2
A ‘‘dutch’’ is a marijuana filled cigar.
3
The cause of death was determined to be gunshot wounds from five
bullets in his chest and abdomen and one in his hand. Jill Therriault, who
worked in the division of scientific services of the Department of Emergency
Services and Public Protection as a forensic science examiner in the firearm
and toolmark unit, testified that the bullets had been fired from two different
guns. One of the guns was .25 caliber and the other was .38 caliber.
4
The New Haven Police Department responded to a report that a person
had been shot at Pay Rite. After arriving at the scene, Officer Elsa Berrios
observed multiple cigars on the sidewalk at the corner of Fulton Terrace
and Kendall Street; they were collected and photographed as part of the
investigation.
5
The following line of questioning between Vanderberg and the prosecutor
occurred at trial:
‘‘Q. It was just you and the defendant?
‘‘A. Yes.
‘‘Q. Okay. Tell us how that conversation came to be, what you said?
‘‘A. Well, we was—when I was leaving out, he was like everybody come
out here and smoke real quick. Something like that. And I just kept looking
at him. I was like, yo, what really happened? What are you playing? He was
like, nah, it wasn’t really much. He was like just some—like some silly shit.
I ended up like, I mean, robbing him. That’s it.
‘‘Q. He ended up—he said he ended up robbing him? Is that the exact
words that he used?
‘‘A. More like stretched him. . . .
‘‘Q. Well what I’m asking you, is that what he said, stretched him? And
what does that mean to you?
‘‘A. Robbed him.’’
6
Vanderberg pleaded guilty to one count of aiding and abetting robbery
in the first degree in another matter and agreed to testify for the state in
this matter pursuant to a plea agreement.
7
The police executed the search and seizure warrant at the defendant’s
home and seized, among other things, the following items as evidence: a
plastic bag containing nine millimeter rounds and .38 caliber rounds, a pair
of dark gray sweatpants, black knit gloves, and a black face mask.
8
The defendant stipulated that he had been convicted of a felony prior
to April 6, 2015, and, therefore, the court should consider that element of
the count as proven.
9
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
10
Prior to sentencing, the court vacated the conviction of felony murder,
citing State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013), State v. Roberts,
158 Conn. App. 144, 118 A.3d 631 (2015), and State v. Benefield, 153 Conn.
App. 691, 103 A.3d 990 (2014), cert. denied, 315 Conn. 913, 106 A.3d 305,
cert. denied, U.S. , 135 S. Ct. 2386, 192 L. Ed. 2d 172 (2015). The
court stated: ‘‘Pursuant to those cases, the court vacates the conviction
herein for felony murder as violative of double jeopardy. That conviction
may be reinstated if [the defendant’s] conviction for murder is subsequently
reversed for reasons not related to the viability of the vacated conviction.’’
11
This appeal was transferred to this court from our Supreme Court
pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1 on June
6, 2019.
12
Rule 2.11 (a) of the Code of Judicial Conduct provides in relevant part:
‘‘A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including but not limited
to the following circumstances: (1) The judge has a personal bias or prejudice
concerning a party or a party’s lawyer, or personal knowledge of facts that
are in dispute in the proceeding. . . . (4) The judge has made a public
statement, other than in a court proceeding, judicial decision, or opinion,
that commits or appears to commit the judge to reach a particular result
or rule in a particular way in the proceeding or controversy.’’
13
A judge is prohibited from presiding over a proceeding in the following
circumstances, as outlined in Rizzo: (1) in the case of a court trial, after a
new trial is granted or judgment is reversed on appeal and, in the case of
a jury trial, after a new trial is granted, (2) hearing a motion attacking the
validity or sufficiency of an arrest warrant that the judge signed, (3) a trial
for nonsummary contempt charges that arose before the judge, (4) a matter
in which the judge previously acted as counsel, (5) a trial and sentencing
following the judge’s participation in plea negotiations that were unsuccess-
ful, (6) a civil trial in which the judge engaged in settlement discussions.
State v. Rizzo, supra, 303 Conn. 119 n.38.
14
DeNardis was the defendant’s probation officer from June 14, 2013,
until April 15, 2015.
15
Detective Perrone was the lead detective in the case and had initially
shown DeNardis the photograph of the defendant for identification purposes
on April 17, 2015.
16
We note that the defendant’s argument at the hearing focused primarily
on a separate issue that was not raised in the written motion, namely, that
DeNardis’ identification of the defendant in the video footage from Eddy’s
arose from unnecessarily suggestive procedures and was unreliable under
the totality of the circumstances, in violation of the defendant’s right to due
process. See Manson v. Brathwaite, 432 U.S. 98, 113–14, 97 S. Ct. 2243, 53
L. Ed. 2d 140 (1977). The evidentiary issue was only briefly addressed at
the end of the hearing. On appeal, the defendant does not challenge DeNardis’
identification of the defendant as unnecessarily suggestive.
17
The following colloquy took place at the suppression hearing between
Officer Aklin and the prosecutor:
‘‘A. So, while I was transporting [the defendant] back to New Haven Police
Department, he asked me what kind of firearm I carry, and just out of the
blue. So, in just casual conversation I said, why are you worried about what
kind of gun I carry? And then just to change the subject. And his response
was, after I asked him why are [you] worried about what kind of firearm I
carry, his response was I’m infatuated with guns.
‘‘Q. Okay.
‘‘A. It kind of threw me off a little bit. So, just to change the subject, I
just—I asked him . . . what [did] you want to be growing up? You know.
And his response to that was, I always wanted to be a bank robber.
‘‘Q. Okay. Now when you asked those questions, did you foresee that [the
defendant] would make any kind of incriminating responses?
‘‘A. Absolutely not.
‘‘Q. And why did you ask those questions?
‘‘A. You know, I just asked to . . . kind of change the subject off of what
kind of firearm I carry kind of.
‘‘Q. Okay. And . . . who started that conversation?
‘‘A. I believe [the defendant] did. . . .
‘‘Q. And did you ask him any questions relating to the case he was being
arrested for?
‘‘A. No. No. Because I know I can’t, because I would have to Mirandize
him. So, I didn’t ask him anything regarding the case. . . .
‘‘Q. Okay. Is it uncommon for you to strike up a casual conversation?
‘‘A. Uncommon, no.’’