State v. Reynolds

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STATE OF CONNECTICUT v. SHELDON REYNOLDS
(AC 35782)
DiPentima, C. J., and Beach and Bishop, Js.
Argued March 14—officially released August 19, 2014

(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
Alan Jay Black, assigned counsel, for the appellant
(defendant).
Susann E. Gill, supervisory assistant state’s attorney,
with whom, on the brief, was John C. Smriga, state’s
attorney, for the appellee (state).
 Opinion

DiPENTIMA, C. J. The defendant, Sheldon Reynolds,
appeals from the judgment of conviction, rendered after
a jury trial, of two counts of murder in violation of
General Statutes § 53a-54a (a) and one count of carrying
a pistol or revolver without a permit in violation of
General Statutes § 29-35. On appeal, the defendant
claims that the trial court (1) abused its discretion in
admitting evidence of prior misconduct, (2) abused its
discretion in admitting into evidence one victim’s hear-
say statements, (3) violated his sixth amendment right
to confront an adverse witness by admitting recordings
of two separate 911 calls into evidence, and (4) erred
in failing to suppress his written statement in violation
of Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L.
Ed. 2d 313 (1975). We disagree and affirm the judgment
of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to the
appeal. A couple of years before her murder, one of
the victims, Debbie Brown, developed a relationship
with the defendant. Brown knew the defendant as ‘‘Mad
Man,’’ ‘‘Donald Davis,’’ or simply ‘‘Jimmi.’’ The nature
of their relationship was tumultuous. For example,
sometime in 2006, the defendant found a photograph
of Brown and another male that was taken when Brown
had lived in Jamaica. After seeing the photograph, the
defendant got angry and told Brown to cut and burn
the photograph. During this incident, the defendant
accused Brown of being in a relationship with the man
in the photograph. Then, he took the photograph from
Brown and burned it. Later that same year, the defen-
dant became physical during an argument with Brown
and pushed her. The couple, however, stayed together
until approximately July, 2008, when Brown and her
daughter, Rejeen Morrison, moved out of the apartment
they were sharing in Bridgeport with the defendant and
moved in with Brown’s friend, Cheryl Wilson. After she
moved, Brown did not inform the defendant of her
new address.
Sometime in August or September, 2008, Brown con-
fided to Beth Landers, who was her employer at the
time, about the nature of her troubles with the defen-
dant. During that conversation, Brown sounded very
upset. After the conversation, Brown filled out a form
for a restraining order seeking protection from the
defendant. She attempted to file the request in Stam-
ford, the town where she worked, but the local police
could not accept the filing because they lacked jurisdic-
tion over the dispute.
Throughout these months, the defendant repeatedly
called Brown’s friends, associates, and employers look-
ing for Brown. During his calls, the defendant sounded
loud and vulgar, sometimes accusing Brown of cheat-
ing, and refused to hang up when told that she was not
there. In reaction to these persistent telephone calls,
Brown asked her friends and employers not to put her
on the telephone with the defendant even if she was
present when the call came in. On the rare occasions
when Brown would answer the defendant’s calls, she
would tell him to stop calling and to stay away from her.
The defendant’s attempts to locate Brown were not
confined to making just telephone calls. One morning
in early October, 2008, at about 5:30 a.m., the defendant
climbed into a second story window of a private resi-
dence in Greenwich where Brown worked as a home
caregiver to an elderly person. He was met by Brown’s
coworker, Lovella Cooper, who was substituting for
Brown at the time. When the defendant realized that
Brown was not present, he identified himself as ‘‘Jimmi’’
and told Cooper that he was looking for his wife. The
defendant was wearing black clothes, gloves, and a
‘‘tam’’ hat.1 Once she found out about it, Brown asked
Cooper not to report the incident to the police, promis-
ing to ‘‘handle it.’’ On the morning of October 23, 2008,
Brown was confronted by the defendant when she was
leaving her residence for work. She was able to get
back inside the building and lock the door behind her.
The defendant approached the front door saying, ‘‘you
think I wouldn’t find where you live.’’ He then started
pounding on the door while repeating several times,
‘‘I’m gonna get you . . . I gonna get you.’’ The defen-
dant retreated only after Brown requested police assis-
tance over the telephone.
On December 6, 2008, one day before the murders,
the defendant called Wilson on the telephone and told
her that he had seen a man, later identified as Desmond
McFarland, bring food to Brown’s daughter, Morrison,
the night before.2 During that call, the defendant stated
that Brown was ‘‘his woman,’’ and that if she was to
‘‘do anything he’d feel justified for it and he will go [to]
prison for anything he do.’’
At approximately 7:15 p.m. on December 7, 2008,
Brown’s housemates, Wilson, Sean Nugent, and Stacey
Rhodeen, heard a series of loud bangs outside. As
Nugent and Rhodeen looked outside to see what was
going on, they observed a slim man, dressed in black
clothes and wearing a ‘‘tam’’ hat, walk away from the
house in a hurry, get into a car that was parked nearby,
and leave the scene without turning on the headlights
of his car. Responding police officers discovered a car
with two victims, Brown and McFarland, inside. McFar-
land had been shot seven times and Brown had been
shot six times; both died from the multiple gunshot
wounds. On December 8, 2008, a semiautomatic hand-
gun was found nearby and was later identified as the
murder weapon.
As a result of the ensuing criminal investigation, the
defendant was arrested on January 16, 2009. He was
charged in a three count information with two counts
of murder and one count of carrying a pistol or revolver
without a permit. The jury found the defendant guilty on
all charges. The court sentenced him to a total effective
term of 125 years incarceration. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
The defendant’s first claim is that the court abused
its discretion in admitting evidence of three instances
of prior misconduct. Specifically, the defendant claims
that the court erred in admitting the (1) evidence that
the defendant climbed through the second story win-
dow of the Greenwich residence looking for Brown,
(2) evidence that Brown had filled out a restraining
order application seeking protection from the defen-
dant, and (3) evidence of a domestic dispute witnessed
by Morrison, approximately two years before the mur-
ders. The defendant further maintains that the prejudi-
cial impact of this evidence outweighed its probative
value. We disagree.
We review the admission of the disputed evidence
based on an abuse of discretion standard guided by
the following principles. ‘‘The admission of evidence
of prior uncharged misconduct is a decision properly
within the discretion of the trial court. . . . [E]very
reasonable presumption should be given in favor of the
trial court’s ruling. . . . [T]he trial court’s decision will
be reversed only where abuse of discretion is manifest
or where an injustice appears to have been done.’’
(Internal quotation marks omitted.) State v. Johnson,
65 Conn. App. 470, 475–76, 783 A.2d 1057, cert. denied,
258 Conn. 930, 783 A.2d 1031 (2001).
Our Supreme Court has established a two part test
to determine the admissibility of evidence of a criminal
defendant’s prior misconduct. First, the evidence must
be relevant and material to at least one of the circum-
stances encompassed by the exceptions outlined in § 4-
5 (b) of the Connecticut Code of Evidence, and, second,
the probative value of such evidence must outweigh its
prejudicial effect. State v. Randolph, 284 Conn. 328,
340, 933 A.2d 1158 (2007).
‘‘Although evidence of prior unconnected crimes is
inadmissible to demonstrate the defendant’s bad char-
acter or to suggest that the defendant has a propensity
for criminal behavior . . . such evidence may be
admissible for other purposes, such as to prove knowl-
edge, intent, motive, and common scheme or design, if
the trial court determines, in the exercise of judicial
discretion, that the probative value of the evidence out-
weighs its prejudicial tendency. . . . That evidence
tends to prove the commission of other crimes by the
accused does not render it inadmissible if it is otherwise
relevant and material . . . .’’ (Citation omitted; internal
quotation marks omitted.) State v. Ellis, 270 Conn. 337,
354–55, 852 A.2d 676 (2004).
‘‘It is not essential that the state prove a motive for
a crime. . . . But it strengthens its case when an ade-
quate motive can be shown.’’ (Citation omitted.) State
v. Hoyeson, 154 Conn. 302, 307, 224 A.2d 735 (1966).
‘‘Evidence of prior misconduct that tends to show that
the defendant harbored hostility toward the intended
victim of a violent crime is admissible to establish
motive.’’ State v. Lopez, 280 Conn. 779, 795, 911 A.2d
1099 (2007). ‘‘When instances of a criminal defendant’s
prior misconduct involve the same victim as the crimes
for which the defendant presently is being tried, those
acts are especially illuminative of the defendant’s moti-
vation and attitude toward that victim, and, thus, of his
intent as to the incident in question.’’ State v. Irizarry,
95 Conn. App. 224, 235, 896 A.2d 828, cert. denied, 279
Conn. 902, 901 A.2d 1224 (2006). ‘‘Because intent is
almost always proved, if at all, by circumstantial evi-
dence, prior misconduct evidence, where available, is
often relied upon.’’ (Internal quotation marks omitted.)
Id., 234.
‘‘The trial court’s discretionary determination that
the probative value of evidence is not outweighed by
its prejudicial effect will not be disturbed on appeal
unless a clear abuse of discretion is shown. . . . We
note that [b]ecause of the difficulties inherent in this
balancing process . . . every reasonable presumption
should be given in favor of the trial court’s ruling. . . .
Of course, [a]ll adverse evidence is damaging to one’s
case, but it is inadmissible only if it creates undue preju-
dice so that it threatens an injustice were it to be admit-
ted. . . . The test for determining whether evidence is
unduly prejudicial is not whether it is damaging to the
defendant but whether it will improperly arouse the
emotions of the jury.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Lynch, 123 Conn. App.
479, 492, 1 A.3d 1254 (2010). ‘‘Evidence is prejudicial
when it tends to have some adverse effect upon a defen-
dant beyond tending to prove the fact or issue that
justified its admission into evidence.’’ (Internal quota-
tion marks omitted.) State v. Orr, 291 Conn. 642, 667–68,
969 A.2d 750 (2009).
‘‘[W]hen the trial court has heard a lengthy offer of
proof and arguments of counsel before performing the
required balancing test, has specifically found that the
evidence was highly probative and material, and that its
probative value significantly outweighed the prejudicial
effect, and has instructed the jury on the limited use
of the evidence in order to safeguard against misuse
and to minimize the prejudicial impact . . . we have
found no abuse of discretion . . . .’’ (Internal quotation
marks omitted.) State v. Lynch, supra, 123 Conn. App.
492–93. ‘‘Proper limiting instructions often mitigate the
prejudicial impact of evidence of prior misconduct.
. . . Furthermore, a jury is presumed to have followed
a court’s limiting instructions, which serves to lessen
any prejudice resulting from the admission of such evi-
dence.’’ (Internal quotation marks omitted.) State v.
Pereira, 113 Conn. App. 705, 715, 967 A.2d 121, cert.
denied, 292 Conn. 909, 973 A.2d 106 (2009).
A
The defendant first argues that the court improperly
admitted the evidence that he broke into a residence
in Greenwich where Brown worked as a home health
aide. We are not convinced.
The facts regarding this claim are as follows. Outside
the presence of the jury, the state informed the court
that it was going to solicit testimony from Brown’s
coworker, Cooper. Cooper was expected to testify that,
sometime in October, 2008, the defendant broke into a
private residence where both Cooper and Brown
worked as home aides. The state argued that this evi-
dence was relevant for the purposes of showing the
defendant’s motive and intent. The defendant objected,
arguing that such evidence was not relevant because
the incident happened two months before the murders,
that it was an attempt by the state to introduce other-
wise inadmissible evidence of prior bad acts, and that
the effect of such evidence would be more prejudicial
than probative.
The court overruled the defendant’s objection. The
court found the proposed evidence of the defendant’s
misconduct to be admissible as proof of his intent and
motive. The court also found that the proposed evi-
dence was not too remote in time because it was consis-
tent with other evidence of the deteriorating
relationship between Brown and the defendant that had
been presented to the jury. Additionally, the court found
the proposed evidence to be admissible to corroborate
other testimony. The court concluded that the proposed
evidence was ‘‘very probative,’’ that its prejudicial effect
on the defendant would not outweigh its probative
value, and that it was not inflammatory in nature,
allowing the jury to fairly balance it.
Following Cooper’s testimony, the court instructed
the jury that the evidence was not admitted to prove
the bad character of the defendant or his tendency to
commit criminal acts. The court further explained that
the evidence was admitted to ‘‘show or establish the
defendant’s intent, any motive he may have had for the
commission of the crimes alleged, or to corroborate
other prosecution evidence.’’ The court repeated this
caution once again during the final jury instructions.
Cooper’s testimony that, approximately two months
before the murders, the defendant had broken into a
private residence of an elderly person under the cover
of darkness tended to show to what extremes the defen-
dant was willing to go to try to locate Brown. This
evidence of the defendant’s past behavior is illuminative
of the nature of the entire history of the relationship
the defendant had with Brown. The court found, and
we agree, that the jury reasonably could have inferred
from this evidence that there was a bad relationship,
and that as a result, the defendant may have had ill will
toward Brown or a motive to harm her. The evidence
of the break-in tended to show that the defendant acted
consistent with such a motive, and the court properly
found the evidence to be relevant.
Subsequently, the court balanced the probative value
of the defendant’s uncharged misconduct against its
prejudicial effect. The court specifically found that the
proposed evidence was not inflammatory and that a
jury could fairly balance it. Recognizing some potential
for prejudice, however, the court specifically limited
the use of the evidence to proving intent and motive.
The court also instructed the jury that it could not use
the evidence to prove the bad character of the defendant
or his tendency to commit criminal acts. Finally, the
court repeated this clear caution once again during the
final jury charge.3
On the basis of all of the factors mentioned pre-
viously, we conclude that the court did not abuse its
discretion in finding that the evidence of the break-in
was relevant and that its probative value outweighed
its prejudicial effect.
B
The defendant next argues that the court improperly
admitted into evidence an application for a restraining
order that Brown had in her purse at the time of the
murders. Specifically, the defendant argues that (1) the
application for a restraining order was a testimonial
hearsay and, therefore, inadmissible in accordance with
principles set out in Crawford v. Washington, 541 U.S.
36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), (2) the
application was not relevant because it was not dated,
and (3) the prejudicial effect from the admission of
the application outweighed its probative value. We are
not persuaded.
The following additional facts are relevant. The
unfiled application for a restraining order was found
inside Brown’s purse. The application identified the
defendant as the person from whom Brown sought pro-
tection. The state sought to introduce a redacted copy of
the application during the testimony of Brown’s sister,
Yvette Johnson. The defendant objected to the evi-
dence, arguing that it violated his right to confrontation
under the sixth amendment, that it was not relevant
because it was undated, and that it was more prejudicial
than probative. After hearing from the state and the
defendant, the court overruled the objection. The court
found that ‘‘the evidence of a restraining order applica-
tion is admissible to show a deteriorating or broken
relationship between . . . Brown and the defendant.
It’s not hearsay. It’s not being offered or admitted to
show that Ms. Brown’s state of mind was reasonable
or objectively justified; it’s being offered exclusively to
show her subjective state of mind . . . .’’ The court
followed up the admission of the evidence with a jury
instruction, cautioning the jury to consider this evi-
dence only for the purposes of showing the nature of the
relationship between Brown and the defendant. Later
during the trial, Brown’s employer, Landers, testified
that she tried to help Brown file the restraining order
against the defendant in August or September, 2008.
1
The defendant first claims that the admission into
evidence of the application for a restraining order con-
stituted impermissible hearsay and violated his consti-
tutional right to confront an adverse witness under the
sixth amendment. We note, however, that the constitu-
tional guarantees of the confrontation clause apply only
when testimonial hearsay statements are involved. As
the United States Supreme Court has held, the introduc-
tion of nonhearsay statements does not trigger the pro-
tections of the confrontation clause. See Tennessee v.
Street, 471 U.S. 409, 414, 105 S. Ct. 2078, 85 L. Ed. 2d 425
(1985) (nonhearsay aspect of defendant’s confession—
not to prove what happened at murder scene but to
prove what happened when defendant confessed—
raised no confrontation clause concerns); Crawford v.
Washington, supra, 541 U.S. 59 n.9 (confrontation
clause does not bar use of testimonial statements for
purposes other than establishing truth of matter
asserted).
Therefore, in order to determine whether the defen-
dant’s constitutional rights were indeed violated, we
decide whether the application for a restraining order
constitutes a hearsay statement. ‘‘[W]hether a chal-
lenged 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).
The Connecticut Code of Evidence defines hearsay
as ‘‘a statement, other than one made by the declarant
while testifying at the proceeding, offered in evidence
to establish the truth of the matter asserted.’’ Conn.
Code Evid. § 8-1 (3). ‘‘An out-of-court statement is not
hearsay, however, if it is offered to illustrate circum-
stantially the declarant’s then present state of mind,
rather than to prove the truth of the matter asserted.
. . . Of course, for any such out-of-court statement to
be admissible, it must be relevant to an issue in the
case.’’ (Citations omitted; internal quotation marks
omitted.) State v. Wargo, 255 Conn. 113, 138, 763 A.2d
1 (2000).
In this case, the court admitted the application for a
restraining order as circumstantial evidence of Brown’s
subjective state of mind. The application was redacted
heavily and did not contain an affidavit explaining the
reasons Brown was seeking protection from the defen-
dant. See Commonwealth v. Cheremond, 461 Mass. 397,
410, 961 N.E.2d 97 (2012) (holding admission of abuse
prevention order proper as evidence of nature of rela-
tionship between victim and defendant, but holding
accompanying affidavit in support of order inadmissi-
ble). In addition, the court instructed the jury on the
limited purpose of the evidence. For these reasons, we
agree with the court that the application for a
restraining order was not hearsay, and, therefore, its
admissibility was properly determined by the court.
2
The defendant next claims that the application for a
restraining order was improperly admitted by the court
because it was not dated and, therefore, not relevant,
and that the probative value from the admission of the
application was outweighed by its prejudicial effect.
We are not persuaded.
‘‘It is well established in our jurisprudence that,
where a marital or romantic relationship existed
between a homicide victim and the defendant, evidence
of the victim’s fear of the defendant suggests a deterio-
ration of that relationship, which is relevant to the
issues of motive and intent.’’ State v. Smith, 275 Conn.
205, 217, 881 A.2d 160 (2005).
In this case, the application for a restraining order
illuminated Brown’s subjective state of mind—her fear
of the defendant. The evidence also reasonably could
have been used by the jury as the basis for an inference
of the defendant’s motive and intent. The fact that the
application was not dated does not make it irrelevant.
The absence of the date implicates the weight of the
evidence, but not its relevance. Moreover, Landers testi-
fied that Brown tried to file the application in August
or September, 2008. From this testimony, the jury could
have reasonably inferred that the application was filled
out by Brown during that time frame. From this we
conclude that the court correctly determined the evi-
dence to be relevant. In addition, having reviewed the
record, we conclude that the court properly balanced
the probative value of the evidence against its potential
prejudicial impact. Also, the court immediately fol-
lowed its decision to admit the evidence with a clear
and concise jury instruction, and ‘‘jurors are presumed
to follow the instructions that they are given.’’ Eisen-
bach v. Downey, 45 Conn. App. 165, 181, 694 A.2d 1376,
cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). On
that basis, we conclude that the court did not abuse its
discretion in admitting into evidence the application
for a restraining order.
C
 The defendant’s third argument is that the court
improperly admitted into evidence the testimony of
Morrison, who stated that the defendant burned a pho-
tograph depicting Brown hugging another male in 2006,
and that he used physical force against Brown at some
time later that year. Specifically, the defendant con-
tends that both incidents were too remote in time to
be relevant, and that the prejudicial effect from their
introduction outweighed any probative value. We are
not convinced.
At trial, the defendant objected to the testimony of
Morrison about the two incidents that had taken place
in 2006, arguing that it was not relevant because the
incidents happened two years before the murders and
that this evidence was more prejudicial than probative.
The court overruled the defendant’s objection, finding
that the time frame of the incidents affected the weight
of the evidence, not its admissibility. The court also
overruled the prejudice based objection, but instructed
the jury that the evidence was admitted for the limited
purpose of showing the defendant’s intent, and as an
explanation for future conduct as well as the nature of
the relationship between Brown and the defendant. The
court also specifically instructed the jury not to infer
that the defendant was a person of bad character or
that he had a propensity to commit criminal acts. This
instruction was repeated by the court during the final
jury charge.
1
As we previously have stated, in our jurisprudence,
evidence of a deteriorating ‘‘marital or romantic rela-
tionship’’ is considered relevant. See State v. Smith,
supra, 275 Conn. 217. In fact, as our Supreme Court
noted, ‘‘[t]his view finds support in the case law of
multiple jurisdictions as well as common experience.
See Gattis v. State, 637 A.2d 808, 818 (Del.) (‘[i]n a
prosecution for homicide arising out of a marital or
romantic relationship, evidence of previous discord
between the victim and the defendant is clearly material
to issues of motive and intent’), cert. denied, 513 U.S.
843, 115 S. Ct. 132, 130 L. Ed. 2d 75 (1994) . . . .’’
(Citations omitted.) State v. Smith, supra, 217. More-
over, we agree with the court’s rationale that the time
frame of the incidents did not render them irrelevant.
See State v. Wargo, 53 Conn. App. 747, 760–61, 731 A.2d
768 (1999) (evidence that defendant nailed board to
front door to prevent wife from entering house eleven
months before murder admissible to show motive),
aff’d, 255 Conn. 113, 763 A.2d 1 (2000); see also State
v. Syriani, 333 N.C. 350, 375–76, 428 S.E.2d 118 (evi-
dence that defendant slapped and threatened his wife
admissible despite being two years old), cert. denied,
510 U.S. 948, 114 S. Ct. 392, 126 L. Ed. 2d 341 (1993);
State v. Berry, 176 W. Va. 291, 294, 342 S.E.2d 259 (1986)
(evidence of prior threat against murder victim not too
remote, where incident occurred year to eighteen
months prior to murder). At the most, the time frame
of the incidents, and the court had pointed it out, bore
on the weight of the evidence and not its relevance.
The jury is presumed capable of determining the weight
of the presented evidence, and the court specifically
reminded the jury that it had to do so in this case.
We are also not persuaded by the defendant’s argu-
ments that the effect of this evidence was more prejudi-
cial than probative. Having reviewed the record, we
conclude that the court properly balanced the probative
value of the evidence of the defendant’s prior abusive
conduct toward Brown with its potential prejudicial
impact. Moreover, by carefully instructing the jury, the
court properly limited the use of the evidence and,
subsequently, its potential prejudicial effect. We, there-
fore, conclude that the court did not abuse its discretion
in finding the evidence relevant and more probative
than prejudicial.
II
We next address the defendant’s claim that the court
abused its discretion in admitting evidence related to
Brown’s mental state as an exception to the hearsay
rule. Specifically, the defendant claims that the testi-
mony of Landers, Wilson and Nugent constituted inad-
missible hearsay and that the effect of this testimony
was more prejudicial than probative. We disagree.
We begin our analysis by setting forth the appropriate
standard of review. ‘‘[W]hether a challenged statement
properly may be classified as hearsay and whether a
hearsay exception properly is identified are legal ques-
tions demanding plenary review. . . . We review the
trial court’s decision to admit evidence, if premised on
a correct view of the law, however, for an abuse of
discretion.’’ (Citations omitted.) State v. Saucier, supra,
283 Conn. 218.
A
Testimony of Landers
During the trial, Landers testified that sometime in
August or September, 2008, Brown told her about an
incident between Brown and the defendant. Landers
further stated that, during that discussion, Brown
appeared worried and agitated. The defendant objected
to the introduction of the term ‘‘incident,’’ arguing that
it constituted hearsay. The court overruled the defen-
dant’s objection, finding that the evidence was not hear-
say and was, therefore, admissible to bear
circumstantially on Brown’s subjective state of mind
and the nature of the relationship between Brown and
the defendant. Thereafter, the court instructed the jury
on the limited nature of the evidence.
As we have stated before, to constitute hearsay a
statement must be introduced to prove the truth of the
matter asserted in the statement. This is not the case
here; the state did not offer Landers’ testimony to prove
that the incident indeed had taken place. It was offered
as evidence of the deteriorating relationship between
Brown and the defendant. We, therefore, conclude that
the court properly determined that Landers’ testimony
was not hearsay. We also conclude that the court prop-
erly determined that this evidence was relevant to the
case because it allowed the jury to consider the deterio-
ration of the relationship between Brown and the defen-
dant, as well as the defendant’s motive and intent. See
State v. Dehaney, 261 Conn. 336, 356, 803 A.2d 267
(2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154
L. Ed. 2d 1070 (2003). We are also satisfied that the
court did not abuse its discretion when it weighed the
probative effect of the evidence against its prejudicial
potential. Finally, any potential prejudice was mitigated
by the court’s limiting instruction to the jury.4
B
Testimony of Wilson and Nugent
At trial, Wilson testified that, during the time Brown
stayed at Wilson’s apartment, Brown had stated that
she felt threatened by the defendant, that she was afraid
for her life and that she was afraid of the defendant
killing her. In addition, Nugent testified that he had
heard Brown tell the defendant over the telephone not
to call and to stay away. The defendant objected to
their testimony on the ground of hearsay. The state
countered that the testimony was relevant to show
Brown’s state of mind. The court overruled the defen-
dant’s objection, finding that the offered statements
were not hearsay because they were not offered for
their truth. The court also found the evidence to be
relevant to show Brown’s state of mind.
The defendant argues that the court improperly
admitted this evidence because it was inadmissible
hearsay, that it was not relevant to the case and that
it was more prejudicial than probative. We do not agree.
The testimony tended to show Brown’s state of mind,
namely, her fear of the defendant and the deteriorating
relationship between them. As discussed in part II A
of this opinion, Brown’s subjective fear of the defendant
tended to reflect a deteriorating relationship as well
as the defendant’s intent and motive to commit the
murders, which were all relevant to the issues in the
case. We, therefore, conclude that the court properly
admitted the testimony into evidence.
III
The defendant’s third claim is that the court violated
his sixth amendment right to confront an adverse wit-
ness by allowing 911 recordings of two separate calls
made by Brown to be played in the presence of the
jury. Specifically, the defendant claims that the court
erred in admitting recordings of 911 calls Brown made
on October 21, 2008, and October 23, 2008. The defen-
dant further maintains that the 911 calls occurred two
months before the murders and, therefore, they were
too remote to be relevant. Finally, the defendant argues
that the prejudicial impact of the 911 calls outweighed
their probative value. We disagree.
The applicable legal principles were outlined by the
United States Supreme Court in Crawford v. Washing-
ton, supra, 541 U.S. 68–69, where the court held that
the hearsay statements of an unavailable witness that
are testimonial in nature may be admitted under the
sixth amendment’s confrontation clause only if the
defendant has had an opportunity to cross-examine the
declarant. ‘‘Thus, the threshold inquiry for purposes of
the admissibility of such statements under the confron-
tation clause is whether they are testimonial in nature.
Because this determination is a question of law, our
review is plenary.’’ (Internal quotation marks omitted.)
State v. Serrano, 123 Conn. App. 530, 534, 1 A.3d 1277
(2010), cert. denied, 300 Conn. 909, 12 A.3d 1005 (2011).
Whether a particular hearsay statement is testimonial
depends on ‘‘the reasonable expectation of the declar-
ant that, under the circumstances, his or her words later
could be used for prosecutorial purposes.’’ (Internal
quotation marks omitted.) Id.; see also State v. Rivera,
268 Conn. 351, 363–64, 844 A.2d 191 (2004) (noting
that traditional testimonial hearsay are ‘‘statements that
were made under circumstances which would lead an
objective witness reasonably to believe that the state-
ment would be available for use at a later trial’’ [internal
quotation marks omitted]).
A
The defendant first argues that the court violated his
sixth amendment right to confront an adverse witness
when it admitted into evidence the audio recording of
Brown’s 911 call on October 21, 2008. The defendant
argues that Brown made this call sometime after the
incident, that there was no ongoing emergency, and that
her statements were inadmissible testimonial hearsay.
Without deciding whether the state violated the defen-
dant’s sixth amendment right to confront an adverse
witness, we conclude that any error was harmless and
would not have affected the verdict.
Before ‘‘a federal constitutional error can be held
harmless, the court must be able to declare a belief
that it was harmless beyond a reasonable doubt. . . .
The state bears the burden of demonstrating that the
constitutional error was harmless beyond a reasonable
doubt. . . . That determination must be made in light
of the entire record.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Daugaard, 231 Conn. 195,
212, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099,
115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). Whether a
constitutional violation ‘‘is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the evidence on the trier of fact and the
result of the trial.’’ (Citations omitted; internal quotation
marks omitted.) State v. Colton, 227 Conn. 231, 254, 630
A.2d 577 (1993), on appeal after remand, 234 Conn. 683,
663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S.
Ct. 972, 133 L. Ed. 2d 892 (1996).
The state introduced the October 21, 2008 call for
the purpose of establishing the extent of Brown’s fear
of the defendant and how that may have shown the
nature of her relationship with him. There was, how-
ever, ample evidence of Brown’s fear of the defendant
that was admitted properly during the trial, making the
October 21, 2008 call cumulative. Specifically, there was
testimony regarding Brown’s statements to her
housemate, Wilson, that she worried for her safety and
that she was afraid of the defendant killing her. Addi-
tionally, there was testimony of several witnesses stat-
ing that Brown was always on the lookout and would
not leave her house if there were any strange vehicles
outside the house. And finally, there was testimony
about Brown’s repeated efforts to avoid the defendant
and her effort to file a restraining order, as well as her
second 911 call made while he confronted Brown on
October 23, 2008. In light of that evidence of Brown’s
fear, the evidence of the 911 call on October 21, 2008,
was cumulative. See State v. Madigosky, 291 Conn.
28, 46, 966 A.2d 730 (2009) (statement of defendant’s
mother cumulative in that it was only one of several
pieces of evidence jury heard).
Furthermore, as a detailed examination of the record
suggests, the state’s case against the defendant was
wholly consistent with the defendant’s guilt and incon-
sistent with the defendant’s uncorroborated alibi.5 Dep-
uty United States Marshal James Masterson testified at
trial that the defendant was not in New York City on
the day of the murders. Instead, the defendant’s cell
phone records showed that his cell phone was used in
Bridgeport throughout the day and was last used at
6:33 p.m.—approximately forty-five minutes before the
murders. Similarly, Nicola Blake, the defendant’s niece,
testified that she encountered him in Bridgeport on the
night of the murders. In addition, Nugent testified that,
immediately after he heard the loud bangs on the night
of the murders, he saw a slim built man wearing a ‘‘tam’’
hat quickly leaving the scene. Nugent further testified
that the man’s gait was impeded in some way—a
description consistent with the defendant’s limp when
walking fast, as testified to by Morrison, who personally
knew the defendant. Finally, there was testimony from
the defendant’s acquaintance, Mark Stewart, who stated
that the defendant had confessed to him about the mur-
ders. The state also presented evidence of the defen-
dant’s continued efforts to locate Brown through
telephone calls to her friends, associates and even
employers, his threats and accusations made during
these calls, as well as the defendant’s unannounced
visit to her workplace in October, 2008. It is against
this backdrop of evidence presented at trial that we
conclude that the introduction of the 911 call made on
October 21, 2008, was harmless beyond a reasonable
doubt.
B
The defendant also challenges the admission of the
audio recording of the 911 call on October 23, 2008,
that Brown made. The defendant once again claims that
the call was not made during an ongoing emergency,
and, therefore, it constituted inadmissible testimonial
hearsay. We disagree.
The following additional facts are relevant to this
issue. The evidence of Brown making a 911 call on
October 23, 2008, first came through the testimony of
Rhodeen. She testified that early one morning, she
heard a commotion downstairs when Brown and her
daughter, Morrison, were about to leave the house. Rho-
deen then heard Brown’s daughter saying, ‘‘mommy,
close the door.’’ Afterward, she heard a male voice
saying, ‘‘is that your man,’’ in Jamaican Creole lan-
guage.6 Rhodeen further testified that the tone of the
male’s voice was aggressive, and that it sounded similar
to the voice of the person who previously had called the
house telephone looking for Brown. Rhodeen further
testified that she then heard Brown saying, ‘‘I’m going to
call the police.’’ Following this, Rhodeen heard Brown
saying, ‘‘there’s a man outside my house stalking me.’’
Later in the trial, the state alerted the court that it
would be offering a portion of the October 23, 2008 call
as evidence. The defendant objected, arguing that the
admission of the call would violate his sixth amendment
right of confrontation and that it was inadmissible hear-
say. The court ruled that it would admit the call, but
ordered a redaction of the portion where Brown told
the 911 operator that the defendant was leaving and
provided the description of his car.
Once the testimony resumed in the presence of the
jury, Morrison testified about the morning incident dur-
ing which Brown made the 911 call. Morrison stated
that on that morning, immediately after she had let
Brown out and locked the front door behind her, Brown
returned to the house because she encountered the
defendant outside. Brown then told Morrison that the
defendant had a knife. Morrison testified that she heard
the defendant saying, ‘‘[y]ou think I wouldn’t find where
you live.’’ Morrison further stated that the defendant
started pounding on the front door while saying, ‘‘I’m
gonna get you . . . I’m gonna get you.’’ During that
time, Brown called the police using her cell phone.
The state then offered the 911 call into evidence. The
court admitted the 911 call and immediately instructed
the jury to use it only for the purpose of establishing
whether Brown feared the defendant, the extent of any
such fear and how it showed the nature of her relation-
ship with the defendant.
After Morrison was cross-examined by the defendant,
the state asked the court to admit the unredacted
recording of the 911 call, arguing that hearing the entire
call would help the jury understand why neither the
defendant’s threats nor his pounding on the door could
be heard on the redacted version of the recording. The
state asked the court to admit Brown’s unredacted
statements under the excited utterance or the present
sense impression exceptions to the hearsay rule, mak-
ing them available for their truth.
The defendant renewed his objections, citing the
sixth amendment and the hearsay rule. Overruling the
objections, the court admitted the entire audio
recording of the 911 call under the spontaneous utter-
ance exception to the hearsay rule. The court then
instructed the jury not to use the 911 call as evidence
of the defendant’s bad character or tendency to commit
criminal acts. Finally, the court repeated this instruction
in its final charge to the jury.
1
The defendant first asserts that the 911 call contained
testimonial hearsay, and that the court erroneously
admitted the recording of that call into evidence in
violation of his rights under the confrontation clause
of the sixth amendment. We are not persuaded.
The test for determining whether statements to police
are testimonial was articulated by the United States
Supreme Court in Davis v. Washington, 547 U.S. 813,
822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), where
the court held that ‘‘[s]tatements are nontestimonial
when made in the course of police interrogation under
circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assis-
tance to meet an ongoing emergency. They are testimo-
nial when the circumstances objectively indicate that
there is no such ongoing emergency, and that the pri-
mary purpose of the interrogation is to establish or
prove past events potentially relevant to later crimi-
nal prosecution.’’7
The United States Supreme Court further elaborated
on the ‘‘ongoing emergency’’ in Michigan v. Bryant,
U.S. , 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011).
The court noted that the existence of an ongoing emer-
gency is ‘‘a highly context-dependent inquiry’’; id., 1158;
that should objectively consider, among other things,
(1) the scope of the emergency and whether it is public
or private in nature, (2) the type of weapon involved,
and (3) the medical condition of the declarant. Id., 1158–
59. The court went on to add that such an inquiry must
focus objectively on the perspectives of the parties at
the time of the statements; the court explained that if
‘‘the information the parties knew at the time of the
encounter would lead a reasonable person to believe
that there was an emergency, even if that belief was
later proved incorrect, that is sufficient for the purposes
of the [c]onfrontation [c]lause.’’ Id., 1157 n.8.
Davis involved a domestic disturbance during which
the victim called 911 and told the operator that a known
assailant physically assaulted her and then fled the
scene. As the assailant was fleeing, the victim informed
the 911 operator that the assailant was ‘‘ ‘runnin’ now,’ ’’
adding that he was leaving in the car with another
person. Davis v. Washington, supra, 547 U.S. 818. The
court found these statements nontestimonial because
(1) the victim was speaking about the events as they
were actually happening rather than describing past
events; (2) any reasonable listener would recognize that
she was facing an ongoing emergency; (3) her state-
ments were necessary to be able to resolve the present
emergency, rather than to establish what happened in
the past; and (4) her statements were made not in a
‘‘tranquil’’ environment, but instead were made over
the telephone in an unsafe environment, as far as a
reasonable 911 operator could make out. Id., 827.
In Bryant, the police responded to a radio dispatch
informing them of a man who had been shot. Upon
their arrival, the police found the victim lying on the
ground at a gas station. In response to the police ques-
tions, the victim stated that he was shot by the defen-
dant at the victim’s house and then drove himself to
the gas station, looking for help. Police subsequently
travelled to the victim’s house where they found the
evidence of the shooting and the defendant’s wallet and
identification. At trial, the police officers were permit-
ted to testify about what the victim, who had died from
the wound, had told them at the gas station. The court
held that the victim’s statements were nontestimonial
because the primary purpose of the interrogation was
to enable police to respond to an ongoing emergency.
Michigan v. Bryant, supra, 131 S. Ct. 1165–67.
The circumstances of the 911 call Brown made on
October 23, 2008, are closely analogous with those iden-
tified in Davis. As Brown was making her call, she was
clearly describing events as they were unfolding. In the
beginning part of the call, Brown had twice stated that
the defendant was at her front door ‘‘now.’’ Moreover,
as the situation started to change, Brown informed the
911 operator about it by stating that the defendant was
leaving toward a certain direction in his car. It is also
clear that Brown was facing an emergency situation at
the time of the call. She stated that she was being
harassed by the defendant ‘‘now,’’ while she was trying
to leave her house for work. In addition, Brown did not
make any statements that were meant to establish any
events that happened in the past. Instead, she clearly
described the then current situation as she observed it.
Such statements were needed for the police to ascertain
and respond to the situation adequately. Even the 911
operator’s efforts to establish the defendant’s identity
were necessary ‘‘so that the dispatched officers might
know whether they would be encountering a violent
felon.’’ Davis v. Washington, supra, 547 U.S. 827. And
finally, Brown did not provide her statements to the
police during a formal interview at the local precinct.
Instead she made her 911 call while the defendant was
present on the scene and the environment was not
objectively tranquil or safe. Just as in Davis, instead of
being testimonial, Brown’s 911 call was ‘‘plainly a call
for help against a bona fide physical threat,’’ and any
reasonable 911 operator would be able to recognize it
as such. Id.
Viewing the surrounding circumstances of the 911
call objectively, we conclude that neither the context
nor content of the call reasonably would have suggested
to Brown that her statements made during that call
would be used to establish or prove events at a later
prosecution of the defendant, whom she had just
encountered while leaving the house on the way to
work. To the contrary, the primary purpose of the Octo-
ber 23, 2008 call was to enable the 911 operator to
collect from Brown the information needed to meet the
ongoing emergency. See State v. Clue, 139 Conn. App.
189, 203–204, 55 A.3d 311 (2012) (finding victim’s state-
ments, made in 911 call, nontestimonial because their
primary purpose was to enable police to respond ade-
quately to ongoing emergency), cert. denied, 307 Conn.
946, 60 A.3d 738 (2013). Therefore, we conclude that
the court properly determined that Brown’s statements
in the 911 call made on October 23, 2008, were nontesti-
monial and that their introduction did not violate the
defendant’s rights under the sixth amendment.
2
The defendant next claims that even if Brown’s state-
ments made during the October 23, 2008 911 call were
not testimonial in nature, they constituted hearsay that
did not fall within the spontaneous utterance exception
under § 8-3 (2) of the Connecticut Code of Evidence
and, therefore, were admitted by the court erroneously.
We disagree.
Connecticut Code of Evidence § 8-2 provides that
hearsay is inadmissible unless it fits into one of the
exceptions enumerated in § 8-3 of the code. The code
provides that a spontaneous utterance is a ‘‘statement
relating to a startling event or condition made while
the declarant was under the stress of excitement caused
by the event or condition.’’ Conn. Code Evid. § 8-3 (2).
As our previous decisions explain, ‘‘[h]earsay state-
ments, otherwise inadmissible, may be admitted into
evidence to prove the truth of the matter asserted
therein when (1) the declaration follows a startling
occurrence, (2) the declaration refers to that occur-
rence, (3) the declarant observed the occurrence, and
(4) the declaration is made under circumstances that
negate the opportunity for deliberation and fabrication
by the declarant.’’ (Internal quotation marks omitted.)
State v. Kendall, 123 Conn. App. 625, 666, 2 A.3d 990,
cert. denied, 299 Conn. 902, 10 A.3d 521 (2010).
We begin by setting forth the relevant legal standard
of review. ‘‘[W]e review the trial court’s determination
that . . . [a] statement was an excited utterance under
the abuse of discretion standard. State v. Saucier,
[supra, 283 Conn. 219] (whether a statement is truly
spontaneous as to fall within the spontaneous utterance
exception will be reviewed with the utmost deference
to the trial court’s determination).’’ (Citation omitted;
internal quotation marks omitted.) State v. Slater, 285
Conn. 162, 178–79, 939 A.2d 1105, cert. denied, 553 U.S.
1085, 128 S. Ct. 2885, 171 L. Ed. 2d 822 (2008). ‘‘Whether
an utterance is spontaneous and made under circum-
stances that would preclude contrivance and misrepre-
sentation is a preliminary question of fact to be decided
by the trial judge. . . . The trial court has broad discre-
tion in making that factual determination, which will
not be disturbed on appeal absent an unreasonable
exercise of discretion.’’ (Internal quotation marks omit-
ted.) State v. Davis, 109 Conn. App. 187, 193, 951 A.2d
31, cert. denied, 289 Conn. 929, 958 A.2d 160 (2008).
In its ruling rejecting the defendant’s objection, the
court specifically found that Brown made her state-
ments ‘‘within the throes of a startling event at or about
the very time that it occurred and without opportunity
for pause or reflection . . . .’’ Subsequently, the court
ruled that Brown’s statements qualified as a spontane-
ous utterance. The facts in the record support the
court’s finding. On that morning, Brown unexpectedly
encountered the defendant as she exited her house on
the way to work. She then managed to return inside
the house and close the door behind her. The defendant
came to the front door and started pounding on it and
threatening her by saying, ‘‘I’m gonna get you . . . I’m
gonna get you.’’ When Brown called the 911 service,
the defendant was still at her front door, and she stated
that fact to the 911 operator twice. Additionally, there
is no reason to doubt that Brown was personally observ-
ing the events as she was describing them to the 911
operator. And finally, because Brown was relaying the
events she was witnessing to the 911 operator as they
were unfolding in front of her, she, as the court aptly
noted, had no time to fabricate her statements.8 There-
fore, in light of the totality of the evidence in the record,
we conclude that the court did not abuse its discretion
in finding that Brown’s statements during the 911 call
were admissible as a spontaneous utterance under § 8-
3 (2) of the Connecticut Code of Evidence.
3
Finally, the defendant argues that the court abused
its discretion by admitting the 911 call into evidence in
violation of § 4-5 of the Connecticut Code of Evidence,
which prohibits the introduction of other crimes,
wrongs or acts. We disagree.
The relevant legal principles applicable to this argu-
ment are outlined in part I of this opinion. Applying
these principles to the argument at hand, we are satis-
fied that the court did not abuse its discretion in admit-
ting the 911 call into evidence. First, Brown’s statements
tend to illuminate the nature of the relationship between
Brown and the defendant, and help prove the defen-
dant’s motive and intent to commit the charged crimes.
We agree with the court that this makes the statements
relevant. Second, we conclude that the court properly
balanced the probative value of the evidence against its
prejudicial effect. In this case, the court heard lengthy
arguments from the state and the defendant before rul-
ing on the admissibility of the evidence. Furthermore,
the court followed its ruling with an instruction to the
jury not to infer that the defendant was a person of bad
character or that he had a propensity to commit crimes.
We, therefore, conclude that the court did not abuse
its discretion by admitting the October 23, 2008 911 call
into evidence.
IV
The defendant’s final claim is that the written state-
ment he gave to the police on January 29, 2009, should
have been suppressed because the police did not ‘‘scru-
pulously honor’’ his right to remain silent in violation
of the rule set forth by the United States Supreme Court
in Michigan v. Mosley, supra, 423 U.S. 96. We disagree.
The facts regarding this claim are as follows. After
his arrest on January 16, 2009, the defendant was trans-
ported to a secure facility in New York City. Once there,
Bridgeport police Detective Christopher Borona,
advised the defendant of his Miranda9 rights from a
standard form used by his department. The defendant
filled in the upper portion of the form with his name,
age, date of birth, and the date. The defendant also
answered in the affirmative that he was capable of
reading and writing. The bottom portion of the form also
contained a waiver allowing the accused to voluntarily
waive his or her Miranda rights. The defendant, how-
ever, declined to sign the waiver portion of the form,
but immediately stated that he was nowhere near
Bridgeport on the night of the murders, and did not
know anything about them.10 Following these state-
ments, Borona asked the defendant three additional
questions, which he refused to answer.11 At that point,
the interview ended.
Thirteen days later, on January 29, 2009, Borona once
again approached the defendant after his transfer from
New York to Connecticut. Borona advised the defen-
dant of his Miranda rights anew and offered him an
opportunity to sign the waiver, which the defendant
accepted. During the ensuing interview, the defendant
made a written statement claiming that he spent the
entire day of December 7, 2008, in New York City with
his children.
The defendant later moved to suppress this state-
ment. At the conclusion of the suppression hearing, the
court denied the motion to suppress the defendant’s
statement made on January 16, 2009, finding that the
statement was not elicited by the police and was not
the result of interrogation. The court also denied the
suppression of the defendant’s written statement made
on January 29, 2009. The court found that the defendant
made the statements on both dates voluntarily, under-
standingly, and knowingly. In conclusion, the court
added that even if the defendant had invoked his right
to remain silent during January 16, 2009 interview, the
police were not precluded from approaching him again
on January 29, 2009, under the precedent established
in State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992).
As a threshold matter, we set forth the appropriate
standard of review of the trial court’s decision on a
motion to suppress. ‘‘[T]o the extent that the trial court
has made findings of fact, our review is limited to decid-
ing whether those findings were clearly erroneous.
Where, however, the trial court has drawn conclusions
of law, our review is plenary, and we must decide
whether those conclusions are legally and logically cor-
rect in light of the findings of fact.’’ (Internal quotation
marks omitted.) State v. Nowell, 262 Conn. 686, 694,
817 A.2d 76 (2003). When, however, ‘‘a trial court’s
determination . . . implicates a defendant’s constitu-
tional rights . . . we engage in a careful examination
of the record to ensure that the court’s decision was
supported by substantial evidence. . . . However, [w]e
[will] give great deference to the findings of the trial
court because of its function to weigh and interpret the
evidence before it . . . .’’ (Citation omitted; internal
quotation marks omitted.) State v. Reynolds, 264 Conn.
1, 43, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908,
124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
The defendant argues that the court improperly
denied his motion to suppress his written statement
from January 29, 2009. The defendant maintains that
he invoked his right to remain silent when he refused
to sign the waiver portion of the Miranda form on
January 16, 2009, and that the principle established by
the United States Supreme Court in Mosley requires
the police to ‘‘scrupulously honor’’ a suspect’s right to
remain silent by immediately terminating any further
questioning following the invocation of the right. The
defendant reasons that asking three follow up questions
after he had refused to sign his Miranda waiver violated
the Mosley requirements and, therefore, any statements
made by the defendant afterward must be excluded. In
addition, the defendant argues that the thirteen day
interval between the first and the second interviews
does not make the Miranda waiver signed by the defen-
dant on January 29, 2009, valid because he remained
in police custody for the entire period. We find these
arguments to be unpersuasive.
As this court previously has stated, an ‘‘inquiry into
the admissibility of a statement obtained while a defen-
dant is in custody must, of course, begin with [Miranda
v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966)]. In that case, the United States Supreme
Court held that the fifth and fourteenth amendments’
prohibition against compelled self-incrimination
requires that a suspect in police custody be informed
specifically of his or her right to remain silent . . . .
The court further held that . . . [i]f the interrogation
continues . . . and a statement is taken, a heavy bur-
den rests on the government to demonstrate that the
defendant knowingly and intelligently waived his privi-
lege against self-incrimination . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Smith,
107 Conn. App. 746, 750–51, 946 A.2d 926, cert. denied,
288 Conn. 905, 953 A.2d 650 (2008); see also Berghuis
v. Thompkins, 560 U.S. 370, 384, 130 S. Ct. 2250, 176
L. Ed. 2d 1098 (2010) (holding that where prosecution
shows Miranda warning was given and understood by
accused, accused’s uncoerced statement establishes
implied waiver of right to remain silent).
In addition, in State v. Smith, supra, 107 Conn. App.
752, we held that voluntary statements made to police
during post-Miranda interrogations are admissible as
long as there is no evidence of threats, coercion, decep-
tive tactics or promises by the police in the record. It
is axiomatic, therefore, that an accused who has
decided to speak after he has received and understood
the Miranda warning ‘‘has chosen unambiguously not
to assert his right to remain silent. He knows that any-
thing he says can and will be used against him . . . .’’
State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985).
As the defendant’s argument is premised on the deci-
sion in Mosley, a brief review of that case will facilitate
our discussion. In Mosley, the defendant was arrested
for robbery and was read the Miranda warning. When
police attempted to interrogate him, the defendant
refused to talk and the officer then ended the interview.
Approximately two hours later, another officer interro-
gated the defendant about another unrelated crime. The
defendant was once again advised of his Miranda rights
and signed the form. He then proceeded to make a
statement implicating himself in the second crime.
Later, the defendant moved to suppress his statement.
Michigan v. Mosley, supra, 423 U.S. 98–99. The court
held that ‘‘the admissibility of statements obtained after
the person in custody has decided to remain silent
depends under Miranda on whether his right to cut off
questioning was scrupulously honored. . . . The court
then concluded that the defendant’s right to cut off
questioning was fully respected because: (1) the first
interrogating police officer had immediately ceased his
interrogation when the defendant invoked his right to
remain silent; (2) the second interrogating police officer
had waited a significant period of time, more than two
hours, before reinterrogating the defendant; (3) the rein-
terrogation concerned a crime unrelated to the first
interrogation; and (4) before the second interrogation
began, the defendant had been advised of his Miranda
rights and had waived those rights.’’ (Citation omitted;
internal quotation marks omitted.) State v. Stanley,
supra, 223 Conn. 692. The purpose behind the require-
ment to ‘‘scrupulously honor’’ the invocation of the right
to remain silent is to avoid instances when the police
do not ‘‘honor a decision of a person in custody to cut
off questioning either by refusing to discontinue the
interrogation upon request or by persisting in repeated
efforts to wear down his resistance and make him
change his mind.’’ Michigan v. Mosley, supra, 105–106.
In the present case, the defendant is not challenging
the fact that he received and understood the Miranda
warning from the police. Therefore, he acted with full
understanding of what rights were available to him fol-
lowing the Miranda warning. Nevertheless, the defen-
dant chose to volunteer to the police his unsolicited
exculpatory statement that he was not near the scene
of the crime and did not know anything about it on
January 16, 2009. All the facts in the record suggest
that the defendant did so knowingly, voluntarily, and
with full understanding of the consequences. The cru-
cial distinction from Mosley is that, in this case, the
defendant did not remain silent after he was arrested
and advised of his rights and, therefore, expressly chose
to forgo his right to remain silent. The defendant’s reli-
ance on Mosley is erroneous because his statement that
he was nowhere near the crime scene and that he did
not know anything about the murders was a waiver of
his right to remain silent, and the police were not
required to stop their interview at that point. Similarly,
the police were not prohibited from approaching the
defendant again on January 29, 2009, because he did
not invoke his right to remain silent during the thirteen
day period between the interviews and, prior to making
the statement, he signed a valid waiver. Accordingly,
the court properly denied the defendant’s motion to
suppress.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant often was seen wearing a ‘‘tam’’ hat.
 2
By this time, Brown had developed a friendly relationship with the second
victim in this case, McFarland, who helped her with her transportation needs
and brought some food for Brown’s family every Friday.
3
We also note that the jury was not told that the defendant was later
arrested and charged as a result of this incident.
4
In his brief, the defendant also challenges Landers’ testimony as an
introduction of a prior bad act by the defendant. Our review of the trial
record reveals, however, that the defendant never raised this objection
during the trial. We, therefore, decline to review this claim. See State v.
Jose G., 102 Conn. App. 748, 756, 929 A.2d 324 (2007) (reviewing court not
bound to consider claims of law not made at trial), aff’d, 290 Conn. 331,
963 A.2d 42 (2009).
5
In his written statement to the police, the defendant claimed that, on
the day of the murders, he was in New York City with his daughter. See
part IV of this opinion.
6
Brown’s friend, McFarland, was just outside the house in his car at
that time.
7
In Davis, the court assumed, without deciding, that the 911 operators
were law enforcement officers. Davis v. Washington, supra, 547 U.S. 823 n.2.
8
We also note that Brown’s statements were corroborated by the testi-
mony of two witnesses, Rhodeen and Morrison. Their testimony provided
further support for the proposition that Brown was describing events as
they were unfolding.
9
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
10
On the appeal, the defendant is not challenging the admission into
evidence of this particular statement, but it was challenged by the defendant
during the suppression hearing.
11
The following is a transcript of a relevant portion of the testimony by
Detective Borona during the suppression hearing:
‘‘The Court: Just so that I’m clear, on the January 16 incident where you—
he was arrested [on] Castle Hill [Avenue in the Bronx, New York], and then
your meeting him in the marshal’s office in Brooklyn [New York].
‘‘[Borona]: Yes.
‘‘The Court: Okay. You went over—you testified you went over the form;
he said that he wasn’t going to sign it.
‘‘[Borona]: Correct.
‘‘The Court: All right. And you also said that he said I [wasn’t] anywhere
near Bridgeport when this happened, and I don’t know anything about it,
words to that effect?
‘‘[Borona]: Yes.
‘‘The Court: Now, you also gave testimony that the interview continued
for two or three minutes, and you asked him a couple questions about where
he lived at the time—or who lived with him?
‘‘[Borona]: Yes.
‘‘The Court: And his aliases?
‘‘[Borona]: Yes.
‘‘The Court: Did those questions come before or after you say he made
the statement about not being anywhere near there in Bridgeport when
this happened and not knowing anything about it. I just want to get my
sequence right.
‘‘[Borona]: After.
‘‘The Court: So, the [two] or three questions—which was first, I’m sorry?
‘‘[Borona]: He stated, I was nowhere near Bridgeport when this incident
happened, and then he was asked the questions after that.
‘‘The Court: All right. So, you said he wasn’t going to sign it. Then he—
you didn’t ask him the question; he said—you said he said this.
‘‘[Borona]: Correct.
‘‘The Court: And then afterward, you asked him a couple questions about
who lived with him and the aliases?
‘‘[Borona]: Yes.
‘‘The Court: Which he refused?
‘‘[Borona]: Yes.’’