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STATE OF CONNECTICUT v. JOSE E. MEDINA

(AC 38932)

Beach, Mullins and Sullivan, Js.*

Argued October 11, 2016—officially released February 7, 2017

(Appeal from Superior Court, judicial district of

Hartford, Dewey, J.)

James P. Sexton, assigned counsel, with whom were

Matthew C. Eagan, assigned counsel, and, on the brief,

Michael S. Taylor, Marina L. Green, and Emily G.

Sexton, assigned counsel, for the appellant (defendant).

Harry Weller, senior assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and John Fahey, senior assistant state’s attorney,

for the appellee (state).
Opinion

SULLIVAN, J. The defendant, Jose E. Medina, appeals

from the judgment of conviction, rendered after a jury

trial, of capital felony in violation of General Statutes

(Rev. 2011) § 53a-54b (7)1 and General Statutes § 53a8 (a), and conspiracy to commit murder in violation

of General Statutes §§ 53a-48 (a) and 53a-54a (a). On

appeal, the defendant claims that the trial court improperly allowed the jury to considerinculpatory statements

in violation of his federal constitutional rights where

the record is clear that either (1) the detectives failed

to advise the defendant of his Miranda rights2 prior to

their custodial interrogation of him, or (2) the Miranda

waiverthat the defendant gave was not knowing, intelligent, and voluntary because he was under the influence

of phencyclidine (PCP). We affirm the judgment of the

trial court.

The jury reasonably could have found the following

facts. At approximately 4 a.m. on January 1, 2011, the

defendant and his friend, Angel Rivera, were traveling

in a black Lexus and engaged in a pursuit of a red Ford

Expedition driven by Luis Rivera, one of the victims,

with Lionel Roldan, the other victim, as a passenger in

that vehicle. As Angel Rivera and the defendant chased

the Expedition, the defendant shot at its occupants.

The chase ended when Luis Rivera lost control of the

Expedition on Francis Avenue in Hartford and the vehicle became lodged in a snowbank. The defendant then

exited the Lexus and shot at the victims from the passenger’s side of the Expedition. Angel Rivera also exited

the Lexus and proceeded to the Expedition, where he

and the defendant repeatedly punched Roldan. The

defendant and Angel Rivera drove away in the Lexus,

but they returned to the scene shortly thereafter. After

removing Roldan from the passenger seat, the defendant entered the Expedition and drove away. Angel

Rivera departed, driving the Lexus. Both Roldan and

Luis Rivera died of gunshot wounds.

Laterthat day, the defendant visited Kasandra Rivera,

and they argued, prompting her to call 911 to report a

domestic disturbance. Responding police pursued the

defendant in a car chase around Hartford, East Hartford, and West Hartford. The chase ended in a shopping

plaza in West Hartford after the defendant’s vehicle

caught fire and police then flattened his tires using

stopsticks. After police apprehended the defendant,

they arrested him on narcotics, traffic, and domestic

disturbance offenses, and transported him to the major

crimes division of the Hartford Police Department.

The defendant arrived at the major crimes division

around 4:55 p.m. and signed a form waiving his Miranda

rights at 6:35 p.m. Between the time he arrived at the

major crimes division and the time he was

‘‘ ‘book[ed],’ ’’ several detectives interviewed him,
including Detective Luis Poma. At some point in the

evening, the defendant asked to speak with Kasandra

Rivera and a detective facilitated that call. With police

present, the defendant spoke with Kasandra Rivera on

a detective’s desk phone and admitted that he had shot

the victims. The time of his Miranda waiver relative

to the time of his statements to Poma and Kasandra

Rivera is unclear from the record.

On March 12, 2014, in a long form information, the

state charged the defendant with capital felony in violation of §§ 53a-54b (7) and 53a-8 (a), two counts of murder in violation of §§ 53a-54a (a) and 53a-8 (a), and

conspiracy to commit murder in violation of §§ 53a-48

(a) and 53a-54a (a). Following a trial, the jury found

the defendant guilty on all charges. The court imposed

a sentence of life without the possibility of release for

capital felony, sixty years each for the murder counts,

and ten years for conspiracy to commit murder, consecutive to the capital felony sentence. In accord with

existing precedent, however, the court vacated the murder convictions. See State v. Polanco, 308 Conn. 242,

245, 61 A.3d 1084 (2013) (when defendant convicted of

greater and lesser included offenses, lesser included

offense must be vacated). This appeal followed. Further

facts will be set forth where relevant to the issues raised

by the defendant.

I

The defendant first claims that the court violated his

constitutional rights by allowing evidence before the

jury of inculpatory statements that he made before he

had been advised of his Miranda rights. The purported

inculpatory statements included statements made to

Poma during an alleged custodial interrogation and

statements made overthe telephone to Kasandra Rivera

and overheard by detectives. The defendant concedes

that he did not raise this or his other claim that he did

not waive his Miranda rights voluntarily, knowingly,

or intelligently at trial, but argues that he may raise his

claims pursuant to Golding.

3 The state argues that,

because the record is inadequate for review, the defendant’s claim fails the first prong of Golding. We agree

with the state.

Before addressing the defendant’s claim, we set forth

the applicable standard of review. ‘‘Under Golding, a

criminal defendant can prevail on an unpreserved claim

of constitutional error 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 violation . . . 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.’’ (Internal quotation marks omitted.) State v. Edmonds, 323 Conn. 34,
48 n.8, 145 A.3d 861 (2016). ‘‘[U]nless the defendant has

satisfied the first Golding prong, that is, unless the

defendant has demonstrated that the record is adequate

for appellate review, the appellate tribunal will not consider the merits of the defendant’s claim.’’ (Internal

quotation marks omitted.) State v. Polanco, 165 Conn.

App. 563, 572–73, 140 A.3d 230, cert. denied, 322 Conn.

906, 139 A.3d 708 (2016).

‘‘Two threshold conditions must be satisfied in order

to invoke the warnings constitutionally required by

Miranda: (1) the defendant must have been in custody;

and (2) the defendant must have been subjected to

police interrogation. . . . If a suspect indicates that

he wishes to remain silent, the interrogation must cease

and if he requests counsel, the interrogation must cease

until an attorney is present.’’ (Citation omitted; emphasis omitted; internal quotation marks omitted.) State v.

Burns, 140 Conn. App. 347, 367, 59 A.3d 819, cert.

denied, 308 Conn. 918, 62 A.3d 1132 (2013).

As stated previously, the record indicates that the

defendant signed a Miranda waiver form at 6:35 p.m.

Due to the lack of findings by the trial court, and the

lack of clear and consistent testimony by Poma and

Detective Andrew Jacobson of the Hartford Police

Department, however, the record is unclear as to when

the defendant was read and waived his Miranda rights

in relation to his allegedly incriminatory statements.

Accordingly, without a factual finding regarding when

the defendant made the statements in question, we cannot determine whether the defendant’s constitutional

rights were violated. Consequently, the record is inadequate for review and the defendant has failed the first

prong of Golding.

4

II

The defendant also claims that he could not have

waived his Miranda rights voluntarily, knowingly, and

intelligently because at the time that he signed the

waiver he was under the effects of PCP. Having already

determined that the record is inadequate to determine

when, in relation to his statements to Poma and the

call to Kasandra Rivera, the defendant signed the waiver

of his rights, we similarly have no factual findings

regarding the voluntariness of the waiver. If the defendant’s statements were made after a waiver, then the

issue of whether he was capable of knowingly, voluntarily, and intelligently waiving his rights would be germane.5 The trial court did not address the issue and

made no findings. In the absence of a sufficient record,

we do not reach the unpreserved issue.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 General Statutes (Rev. to 2011) § 53a-54b was amended by No. 12-5, § 1,

of the 2012 Public Acts to substitute ‘‘murder with special circumstances’’
for ‘‘capital felony.’’ Hereinafter, all references are to the 2011 revision of

that statute unless otherwise indicated.

2 See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).

3 State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see also

In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third

prong of Golding).

4 The state has suggested that the defendant deliberately chose not to

contest the admissibility of his statements, because they provided a factual

basis for a self-defense claim without his having to testify. We have no facts

found as to this assertion, however, and do not reach it.

5 See State v. Cushard, 164 Conn. App. 832, 838, 137 A.3d 926 (‘‘To be

valid, a waiver must be voluntary, knowing and intelligent. . . . The state

has the burden of proving by a preponderance of the evidence that the

defendant voluntarily, knowingly and intelligently waived his Miranda

rights.’’ [Internal quotation marks omitted.]), cert. granted on other grounds,

321 Conn. 926, 138 A.3d 286 (2016).