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STATE OF CONNECTICUT v. ROGEAU

R. COLLINS

(AC 35401)

DiPentima, C. J., and Sheldon and Foti, Js.

Argued October 16, 2013—officially released January 21, 2014

(Appeal from Superior Court, judicial district of

Hartford, Espinosa, J. [motion to preclude]; O’Keefe,

J. [judgment].)

Daniel J. Foster, assigned counsel, for the appellant (defendant).

Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Thomas R. Garcia, senior assistant state’s

attorney, for the appellee (state).
Opinion

FOTI, J. The defendant, Rogeau R. Collins, appeals

from the judgment of conviction, rendered following a

jury trial, of felony murder in violation of General Statutes § 53a-54c and robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). On appeal,

the defendant claims that the trial court improperly:

(1) excluded a statement made by another suspect in

the crimes of which the defendant was convicted, (2)

excluded testimony regarding the defendant’s statements to police, and (3) excluded evidence of items

seized from the residence of another suspect. We affirm

the judgment of conviction.

The jury reasonably could have found the following

facts. In March, 2009, Robert Dixon, the victim, resided

in Hartford with his girlfriend. Dixon always carried

two cell phones. He used one cell phone to sell drugs

and the other for personal matters. In addition, he

always wore an expensive pair of Cartier glasses. He

did not store the drugs he sold at his home, but kept

them at a remote location secured in a safe. The key

to the safe was on the same key ring as Dixon’s car keys.

On March 9, 2009, Dixon exchanged several phone

calls with an individual named Adrian Dean, a friend

of the defendant. At approximately 9:25 p.m. that night,

Dixon left his residence in his vehicle carrying both of

his cell phones and wearing his Cartier glasses. Sometime thereafter, Dean joined Dixon in the vehicle. Dean

then contacted the defendant, who was driving around

the Hartford area in his girlfriend’s vehicle. Dean

arranged to meet the defendant at a location in Bloomfield and gave the defendant directions to that location.

The defendant followed Dean’s directions and arrived

at the location at approximately the same time as Dean

and Dixon. Dixon and the defendant then drove their

vehicles toward a cul-de-sac at the end of the road.

Dixon turned his vehicle in the cul-de-sac and came to

a stop. The defendant pulled up and stopped his vehicle

to the left of Dixon’s vehicle. The defendant then exited

his vehicle. Both the defendant and Dean, who had

exited Dixon’s vehicle, approached the driver’s side

door of Dixon’s vehicle. Dixon was still sitting in the

driver’s seat of his vehicle. Dean, with a firearm in one

of his hands, opened the driver’s side door of Dixon’s

vehicle and shot Dixon in the head. Dean then asked

the defendant to search Dixon’s pockets. The defendant

began patting Dixon’s pockets when Dixon flinched and

attempted to escape the vehicle through the passenger

side door. Dixon was shot seven times as he attempted

to escape and died as a result of the multiple gunshot

wounds. The defendant and Dean then left the scene

in the defendant’s vehicle. The following morning, on

March 10, 2009, Dixon was found dead by two fishermen. Dixon’s two cell phones, Cartier glasses, and

keys were not found at the scene. The defendant was
arrested on March 24, 2009.

The state, in a long form information filed on January

11, 2011, charged the defendant with murderin violation

of General Statutes § 53a-54a (a), felony murderin violation of § 53a-54c, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a),

robbery in the first degree in violation of § 53a-134 (a)

(2), and conspiracy to commit robbery in the first

degree in violation of §§ 53a-48 (a) and 53a-134 (a) (2).

The jury found the defendant guilty of felony murder

and robbery in the first degree, but not guilty on each

of the remaining charges. The court sentenced the

defendant to a total effective term of forty-five years

of imprisonment.1 This appeal followed. Additional

facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly excluded testimony of an alleged statement made

by Dean to Carlton Martin, Dean’s former cellmate in

prison, as inadmissible hearsay. Specifically, the defendant contends that Martin’s testimony as to Dean’s

alleged statement was admissible as a statement against

penal interest pursuant to § 8-6 (4) of the Connecticut

Code of Evidence. We disagree.

The following additional facts and procedural history

are necessary to resolve this claim. During trial, defense

counsel notified the court that he intended to call Martin

to testify about a statement made by Dean while the

two shared a prison cell. The prosecutor objected to

Martin’s proffered testimony as inadmissible hearsay.

Defense counsel, however, argued that Martin’s testimony was admissible as a statement against Dean’s

penal interest. As part of defense counsel’s offer of

proof, Martin testified outside the presence of the jury.

Martin’s testimony revealed that he was serving a

ninety-six year term of imprisonment and had shared

a prison cell with Dean between May and December,

2010. During this period, Dean and Martin watched an

episode of the television show ‘‘Cold Case,’’ which

involved betrayal between two codefendants to a crime.

The show prompted a discussion about codefendants

between Dean and Martin. During their discussion,

Dean mentioned that he still had a codefendant on trial.

He explained that he originally intended to take his

case to trial, but decided to take a twenty-five year

sentence plea deal after learning that the defendant had

implicated him in the shooting. Dean was apparently

upset, according to Martin, that the defendant gave a

statement to the police: ‘‘[E]specially when [the defendant] didn’t know nothing about it . . . he didn’t even

have to go that route, all he had to do was just shut

up and go all the way.’’ The court excluded Martin’s

testimony of Dean’s statement on the basis that it did

not constitute a statement against penal interest and,

therefore, was inadmissible hearsay.
We begin by setting forth our standard of review.

It is well established that ‘‘[w]e review a trial court’s

decision to admit [or exclude] evidence, if premised on

a correct view of the law . . . for an abuse of discretion.’’ (Internal quotation marks omitted.) State v.

Davis, 298 Conn. 1, 10–11, 1 A.3d 76 (2010). ‘‘[A]fter

a trial court has made the legal determination that a

particular statement is or is not hearsay, or is subject

to a hearsay exception, [it is] vested with the discretion

to admit or to bar the evidence based upon relevancy,

prejudice, or other legally appropriate grounds related

to the rule of evidence under which admission is being

sought.’’ (Internal quotation marks omitted.) State v.

Smith, 289 Conn. 598, 617–18, 960 A.2d 993 (2008).

Accordingly, ‘‘[w]e will make every reasonable presumption in favor of upholding the trial’s court ruling

and only upset it for a manifest abuse of discretion.’’

(Internal quotation marks omitted.) State v. Snelgrove,

288 Conn. 742, 758, 954 A.2d 165 (2008). ‘‘In determining

whether there has been an abuse of discretion, the

ultimate issue is whether the court . . . reasonably

[could have] conclude[d] as it did.’’ (Internal quotation

marks omitted.) State v. Davis, supra, 11.

In the present case, the trial court excluded testimony

with respect to Dean’s statement because it determined

that it did not fall within the statement against penal

interest exception to the hearsay rule. It is hornbook

law that ‘‘hearsay statements may not be admitted into

evidence unless they fall within a recognized exception

to the hearsay rule.’’ State v. Smith, supra, 289 Conn.

618; see Conn. Code Evid. § 8-2. Section 8-6 (4) of the

Connecticut Code of Evidence embodies an exception

to the hearsay rule for statements against penal interest.

Section 8-6 (4) applies where a hearsay statement made

by an unavailable declarant was ‘‘trustworthy . . .

[and] at the time of its making, so far tended to subject

the declarant to criminal liability that a reasonable person in the declarant’s position would not have made

the statement unless the person believed it to be true.’’

Conn. Code Evid. § 8-6 (4). In short, the admissibility

of Dean’s statement to Martin is subject to a binary

inquiry: (1) whether Dean’s statement to Martin was

against Dean’s penal interest and, if so, (2) whether the

statement was sufficiently trustworthy.2 See State v.

Pierre, 277 Conn. 42, 67, 890 A.2d 474, cert. denied, 547

U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).

‘‘As to what is against penal interest, quite obviously

the essential characteristic is the exposure to risk of

punishment for a crime . . . . Moreover, it is not the

fact that the declaration is against interest but the

awareness of that fact by the declarant which gives

the statement significance.’’ (Citations omitted; internal

quotation marks omitted.) State v. Bryant, 202 Conn.

676, 695–96, 523 A.2d 451 (1987). Our review of the

evidence before the court reveals that Dean’s statement
was not against his penal interest because it did not

subject him to criminal punishment. Priorto making the

alleged statement to Martin, Dean already had pleaded

guilty to conspiracy to commit robbery in the first

degree, robbery in the first degree, and felony murder

on February 3, 2010.3 During the plea canvass, Dean

admitted that both he and the defendant had shot and

robbed Dixon. Dean was subsequently sentenced to

twenty-five years of imprisonment. Dean already was

incarcerated when he made the alleged statement as a

result of pleading guilty to the crimes that were the

subject of his alleged statement. Because Dean could

not have been subject to additional punishment as a

result his statement to Martin, it cannot function as one

against Dean’s penal interest.4 See State v. Thomas,

296 Conn. 375, 384–85, 995 A.2d 65 (2010) (where case

disposed of on guilty plea, jeopardy attaches at least

by time of sentencing); see also State v. Smith, supra,

289 Conn. 632 (‘‘the admission of a crime supports an

inference of reliability because people do not tend to

subject themselves to criminal prosecution lightly’’). On

the basis of the foregoing, we conclude that Dean’s

alleged statement to Martin was not against his penal

interest.5 Therefore, the court did not abuse its discretion by excluding Martin’s testimony as inadmissible

hearsay.

II

The defendant next claims that the court improperly

precluded evidence of the circumstances in which he

made certain statements to the police and, in doing so,

deprived him of his rightto a present a complete defense

as required by the fourteenth amendment to the federal

constitution. See U.S. Const., amend. XIV, § 1. We

disagree.

The following additional facts and procedural history

are necessary to resolve this claim. Prior to trial, the

defendant filed a motion to suppress written statements

he made in the presence of Bloomfield police Sergeant

Shawn Bolden. Following a hearing, the court denied

the defendant’s motion to suppress.6 During trial, the

state called Bolden as part of its case-in-chief. On direct

examination, Bolden testified about his interview with

the defendant on March 19, 2009. He specifically testified that, at the beginning of the interview, he informed

the defendant that ‘‘he wasn’t under arrest . . . he was

free to leave and . . . he didn’t have to submit to an

interview.’’ Bolden also testified that the defendant did

not seem to have any trouble understanding him and

did not appear to be under the influence of drugs or

alcohol. Thereafter, the state introduced the defendant’s written statements through Bolden.

On cross-examination, defense counsel probed the

circumstances surrounding the defendant’s questioning. Through the cross-examination of Bolden,

defense counsel established that (1) the defendant was
at all times escorted by a police officer while at the

police station for questioning, (2) the questioning lasted

approximately nine hours, (3) the police utilized certain

questioning techniques, (4) Bolden and the other officer

present during questioning were physically large in

comparison to the defendant’s stature,(5)the conversation was not recorded, and (6) the defendant was born

in Jamaica and came to the United States as a young boy.

Defense counsel then inquired about the defendant’s

waiver of his Miranda rights.7 Bolden testified that he

had the defendant fill out a Miranda waiver form.

Defense counsel asked Bolden, with respect to the

Miranda waiver, ‘‘you put on there that [the defendant]

understood English to a limited degree, could write

to a limited degree, correct?’’ Bolden answered in the

affirmative, prompting defense counsel to inquire:

‘‘Were you able to test . . . to what dimension that

was, how limited he was in his understanding?’’ The

prosecutor objected on relevance grounds and

requested to be heard outside the presence of the jury.

After the jury left the courtroom, the prosecutor

argued that ‘‘[defense counsel] is getting into the custody and voluntariness of the waiver . . . [t]here’s

already been a prior ruling on this issue . . . .’’ The

court sustained the objection and informed defense

counsel: ‘‘[Y]ou can ask whatever you want [if] you’re

trying to show coercion or that it’s a false statement

or inaccurate. . . . But when [your questions] mix in

legal issues like the question of voluntariness and custody . . . [you’re arguing] legal conclusions that have

already been visited and ruled on . . . . [Y]ou’re just

trying to circumvent the ruling of the court . . . . [Y]ou

can ask as many questions as you want about the

circumstances of the encounter.’’ (Emphasis added.)

The defendant’s claim of error is limited to the court’s

ruling to exclude evidence with respect to the voluntariness of the defendant’s Miranda waiver.

It is well established that ‘‘[a] defendant’s fundamental right to present a defense, guaranteed by the due

process clause of the fourteenth amendment to the

United States constitution, includes the right to present

evidence of the circumstances under which a custodial

statement was made.’’ State v. Fernandez, 27 Conn.

App. 73, 78, 604 A.2d 1308, cert. denied, 222 Conn. 904,

606 A.2d 1330 (1992); see also Crane v. Kentucky, 476

U.S. 683, 690–91, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986).

The reason for this rule is that certain of those circumstances, such as a police interrogator’s use of coercive

tactics to force or induce the defendant to make a

statement or the defendant’s special susceptibility to

being influenced by such tactics to make a false statement, may reasonably be claimed to cast doubt on the

reliability of the statement.

Our review of the record indicates that the court’s

ruling did not violate this rule, orthereby undermine the
defendant’s constitutional right to present a complete

defense. Rather, the ruling was limited to precluding

evidence concerning the voluntariness of the defendant’s Miranda waiver, except to the extent that such

evidence was offered to test the reliability of the defendant’s statements in light of the circumstances in which

they were made. Indeed, the court expressly permitted

defense counsel to thoroughly probe the circumstances

surrounding the defendant’s statements, which is

exactly what the constitution requires. See Crane v.

Kentucky, supra, 476 U.S. 689–90 (defendant must be

afforded opportunity to challenge credibility of custodial statement). Accordingly, the defendant’s constitutional claim is without merit.8

The defendant’s parallel claim of evidentiary error

must also fail. Defense counsel offered the excluded

testimony to show that the defendant’s statements were

‘‘not completely knowing and voluntarily given.’’ He

never claimed, however, that the purpose or effect of

such testimony would be to show that the defendant’s

statements were unreliable in light of the circumstances

in which they were made. A challenge to the voluntariness of a defendant’s statements to the police may be

based upon a claim that the procedures used to obtain

them were of the sort that tends to undermine the

statements’ reliability. It may, by contrast, be based

upon a claim that the defendant made the statements

in question without knowing the full extent of his legal

rights to remain silent and/or not to submit to custodial

interrogation without the assistance of private or

appointed counsel. Evidence supporting the former

claim is, by its very nature, admissible in evidence to

rebut admissions contained in the defendant’s custodial

statements, and thus to support his defense. Evidence

supporting the latter claim, by contrast, although potentially supportive of a motion to suppress the defendant’s

statements based upon an alleged violation of the defendant’s privilege against self-incrimination and/or his

right to counsel, does not necessarily bear upon, or

thus constitute admissible trial evidence with respect

to, the reliability of the challenged statements. Here,

then, where the only proffered purpose of the excluded

testimony was to undermine the voluntariness of the

defendant’s waiver of his Miranda rights, without any

accompanying indication that such testimony was

offered to challenge the reliability of those statements,

its exclusion by the trial court was not erroneous.

Accordingly, in these circumstances, we conclude that

the court did not abuse its discretion by excluding testimony concerning the voluntariness of the defendant’s

Miranda waiver.

III

The defendant next claims that the court improperly

excluded as irrelevant evidence that Cartier glasses

were found at Dean’s home. We disagree.
The following additional facts and procedural history

are necessary to resolve this claim. Prior to the defendant’s case-in-chief during trial, defense counsel

announced his intention to call Hartford police Detective Brian Plourde. Plourde was involved in the execution of a search warrant at Dean’s residence where the

police discovered, inter alia, a safe containing four cell

phones, a pair of Cartier glasses, and ammunition. The

state objected to Plourde’s testimony on the ground

that it was irrelevant. Specifically, the state argued that

the Cartier glasses never were linked to the victim—a

fact previously conceded by defense counsel. Defense

counsel argued, however, that the Cartier glasses were

relevant because they were found in Dean’s residence

and ‘‘Cartier glasses were reported missing from

[Dixon]. So circumstantially it ties . . . Dean to the

incident as having taken those glasses from [Dixon].’’

When the court asked defense counsel why he did not

ask Dixon’s girlfriend to identify the Cartier glasses

as Dixon’s during cross-examination, defense counsel

stated: ‘‘Honestly, it didn’t occur to me at that point to

go ahead and show her a picture of the glasses.’’ The

state subsequently stated that the police did not link

the Cartier glasses to Dixon. The court sustained the

state’s objection in part, excluding evidence with

respect to the Cartier glasses.9

The principles governing our review of evidentiary

claims are set forth in part I of this opinion. We supplement, however, the specific legal principles that govern

our analysis of this particular claim. ‘‘Relevant evidence

is evidence that has a logical tendency to aid the trier

in the determination of an issue. . . . One fact is relevant to another if in the common course of events the

existence of one, alone or with other facts, renders

the existence of the other either more certain or more

probable. . . . Evidence is irrelevant or too remote if

there is such a want of open and visible connection

between the evidentiary and principal facts that, all

things considered, the former is not worthy or safe to

be admitted in the proof of the latter. . . . Evidence

is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to

support a relevant fact even to a slight degree, so long

as it is not prejudicial or merely cumulative. . . . The

trial court has wide discretion to determine the relevancy of evidence and [e]very reasonable presumption

should be made in favor of the correctness of the court’s

ruling in determining whether there has been an abuse

of discretion.’’(Internal quotation marks omitted.) State

v. Pena, 301 Conn. 669, 674, 22 A.3d 611 (2011).

The defendant contends that the Cartier glasses are

relevant because ‘‘glasses costing $3000 are not a common item, and evidence that Dean had them in his safe

could be used to support an inference that it was Dean

who robbed Dixon of the glasses.’’ Our review of the
record indicates that the value of the Cartier glasses

seized from Dean’s residence never was established.

Moreover, the seized Cartier glasses never were identified or connected as being the Cartier glasses owned

and worn by Dixon. For all purposes, it appears that

the defendant’s sole foundation for admitting the seized

Cartier glasses was that they were the same brand as

the glasses worn by Dixon. ‘‘[T]he proffering party bears

the burden of establishing the relevance of the offered

testimony. Unless a proper foundation is established,

the evidence is irrelevant.’’ (Internal quotation marks

omitted.) Deegan v. Simmons, 100 Conn. App. 524, 540,

918 A.2d 998, cert. denied, 282 Conn. 923, 925 A.2d 1103

(2007). Making every reasonable presumption in favor

of the trial court’s ruling, we cannot conclude that the

court abused its discretion by excluding the seized Cartier glasses as evidence that it was Dean, not the defendant, who robbed Dixon of his Cartier glasses.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Dean also was arrested and sentenced to twenty-five years of imprisonment after negotiating a plea bargain with the state.

2 The issue of Dean’s unavailability was abandoned by the parties during

oral argument before this court. Although the trial court did not expressly

determine that Dean was unavailable, the parties stipulated ‘‘[t]hat if the

court ordered [Dean] to testify, he would refuse . . . [and] if he refuses to

testify before the court, which we agreed he would do, that would render

him unavailable.’’ The court later instructed the jury with respect to the

parties’ stipulation as follows: ‘‘[I]f . . . Dean was called as a witness by

either the prosecutor or the defense, he would refuse to answer any

questions.’’

3 Prior to pleading guilty, Dean offered conflicting accounts of what

occurred on March 9, 2009, to the police. On March 18, 2009, Dean denied

any involvement in Dixon’s murder. The next day, March 19, 2009, Dean

then stated that the defendant was solely responsible for killing Dixon.

4 The defendant contends that Dean’s statement was against his penal

interest because, if it were true, it follows that he was subject to criminal

liability for making a false statement to police in March, 2009. See footnote

3 of this opinion. We disagree. Dean did not face criminal liability for having

made a false statementto the police atthe time he made the alleged statement

to Martin. Both of Dean’s statements to the police occurred in March, 2009.

He made the alleged statement to Martin no earlier than May, 2010, more

than one year after his statements to the police. Thus, the limitations period

for prosecuting Dean for having made a false statement to the police had

already expired. See General Statutes § 53a-157b (false statement is class

A misdemeanor); General Statutes § 53a-36 (sentence of imprisonment for

class A misdemeanor not to exceed one year); General Statutes § 54-193

(c) (where punishment of offense does not exceed one year, state cannot

prosecute if more than one year has passed from date offense is committed).

5 Because Dean’s statement was not against his penal interest, it is not

necessary to determine if it was ‘‘trustworthy’’ for purposes of § 8-6 (4) of

the Connecticut Code of Evidence.

6

In denying the defendant’s motion to suppress, the court determined

that the defendant’s statements were not the fruit of ‘‘an illegal arrest or

detention.’’ The court further determined that ‘‘[t]he defendant was properly

advised of his Miranda rights and he knowingly, voluntarily and intelligently

waived those rights. The statements were not the product of coercion,

deception, manipulation or overreaching by the officers.’’

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

2d 694 (1966).

8 Although the court, in making its evidentiary ruling, expressly noted that

it had already decided the issue of voluntariness in making its ruling on the

defendant’s motion to suppress statements, that ruling had no logical or

legal bearing on the evidentiary question presented for its decision. Even
if part of the court’s suppression ruling had rejected a claim that the police

had subjected the defendant to the sort of coercive interrogation tactics

that tend naturally to produce unreliable statements, the defendant retained

the right to present evidence to the jury attacking the reliability of his

statements on the basis of such coercive police tactics.

9 The court, however, permitted the defendant to introduce the ammunition found in Dean’s safe. On appeal, the defendant contends that the court

erred by excluding testimony concerning the Cartier glasses and the four

cell phones found in Dean’s safe. The state, however, contends that the

defendant’s claim with respect to the four cell phones was not preserved

for appellate review. We agree. During trial, defense counsel indicated to

the court that the police recovered several items from Dean’s safe, but

stated that he only intended to introduce specific items: ‘‘[T]he specific

items that I would seek to introduce would be limited to . . . [ammunition,

two firearms and] a pair of Cartier glasses . . . .’’ The court then made its

ruling based on defense counsel’s limited offer of evidence, which did not

include the four cell phones found in Dean’s safe. The admissibility of

the four cell phones, therefore, was never ruled upon by the court. ‘‘It is

fundamental that claims of error must be distinctly raised and decided in

the trial court . . . . [We] will not address issues not decided by the trial

court.’’ (Internal quotation marks omitted.) State v. Faison, 112 Conn. App.

373, 379–80, 962 A.2d 860 (2009). We, therefore, decline to review the defendant’s claim with respect to the admissibility of the four cell phones.