Date: 02-16-2016

Case Style: STATE OF CONNECTICUT v. ALAIN LECONTE

Case Number: SC 19258

Judge: Carmen E. Espinosa

Court: Connecticut Supreme Court

Plaintiff's Attorney: Timothy F. Costello, Richard J. Colangelo, Jr., James Bernardi, David I. Cohen

Defendant's Attorney: Daniel J. Foster

Description: The defendant, Alain Leconte, appeals from the judgments of the trial court convicting him of crimes committed during a string of armed robberies in the cities of Stamford and Norwalk, and the town of Greenwich,betweenOctoberandDecember,2009.1 The defendant claims that his convictions resulting from theStamfordrobberyshouldbereversedontheground that his constitutional right to counsel was violated when the trial court admitted incriminating statements he made to an informant regarding the Norwalk and Greenwich robberies while he was incarcerated and represented by counsel. The defendant also claims that his convictions resulting from the Norwalk and Greenwich robberies should be reversed on the ground that the trial court violated his sixth amendment right to confrontation or, in the alternative, abused its discretion by restricting defense counsel’s cross-examination of a key prosecution witness. The state responds that the trial court’s admission of the incriminating statements and its restrictions on counsel’s cross-examination of the witness did not violate the defendant’s sixth amendment rights or constitute an abuse of the trial court’s discretion and that, even if they did, any error was harmless. We affirm the judgments of the trial court. The following facts and procedural history are relevant to our resolution of this appeal. Between October andDecember,2009,thedefendantparticipatedinthree armed robberies, each of which resulted in criminal charges against him. The first robbery took place on October 10, 2009. The defendant, together with an accomplice, entered a Shellgasstationandconvenience storeinNorwalkand demanded that the store clerk hand over the money in the cash register, which contained approximately $1300. He then shot the clerk in the head before fleeing with his accomplice. The clerk later died from the gunshot wound. The second robbery took place on November 21, 2009. The defendant and three accomplices drove to a Mobil gas station in Greenwich. While two of the accomplices waited in the car and the third, Teran Nelson, stood outside as a lookout, the defendant entered theconveniencestoreandorderedtheclerkatgunpoint to give him the money in the cash registers. After the clerk handed over approximately $638 and several boxes of cigarettes, the defendant shot him in the head and drove off with Nelson. The clerk ultimately recovered from the gunshot wound. The third robbery occurred on December 12, 2009. The defendant called and asked a friend, who also was a police informant, to give him a ride in her car. During the ride, the defendant told her to stop at a certain
location, where he picked up a gun, smoked marijuana, and met an accomplice, David Hackney, with whom he decidedtocommitarobbery.Theinformantthendrove the defendant and Hackney to a Walgreens store in Greenwich. While the two men waited in the car, the informant purchased a pair of stockings that the defendant said he wanted for his mother and contacted the police by cell phone to warn of a possible robbery in Stamford. When the informant returned to the car, she drove the defendant and Hackney back to Stamford and dropped them off on Vista Street. The men then walked a short distance to Adams Grocery Store. After the defendant and Hackney pulled the stockings over their heads, they entered the store and the defendant ordered everyone at gunpoint to get down on the floor. When the defendant encountered difficulty trying to open the cash register, the store clerk offered to help. Thedefendantthengrabbedapproximately$203incash and fled from the store with Hackney. A short time later,thepolicecaughtthedefendantashewasrunning down the street. The defendant was detained and arrested, and various individuals who had been in Adams Grocery Store during the robbery identified the defendant and Hackney as the men who had just robbed the store. Police officers who had observed the men in immediate flight also identified the defendant, who was wearing the same clothing he had worn during the robbery. The defendantthenwasbroughttothepolicestation,where he provided a written statement in which he confessed to his involvement in the Stamford robbery and provideddetailsregardingtheincident.Thedefendantsubsequently was charged with two counts of robbery in the first degree in connection with this robbery. Duringthedefendant’sincarcerationfortheStamford robbery,hetoldAnthonySimmons,acellmatewhohad agreed to be a cooperating witness for the state, that he had been involved in the Norwalk and Greenwich robberies. On the basis of this information and the evidence obtained from several other persons who also werecooperatingwitnesses,thedefendantwascharged with murder, felony murder and robbery in the first degreeforhisparticipationintheNorwalkrobberyand with attempt to commit murder and robbery in the first degree for his participation in the Greenwich robbery. The three cases were joined for trial on August 21, 2012, and a jury found the defendant guilty as charged, except with respect to the two first degree robbery charges in the case involving the Stamford robbery. Withrespecttothosecharges,thejuryfoundthedefendant guilty of two counts of the lesser included offense of robbery in the second degree because evidence had beenadmittedthatthegunhehadusedintheStamford robberywasinoperable.OnFebruary13,2013,thecourt rendered judgments of conviction and imposed a total
effective sentence of ninety years incarceration. I The defendant first claims that he was deprived of his sixth amendment right to counsel2 when the trial court admitted the incriminating statements he made to Simmons regarding his participation in the Norwalk and Greenwich robberies at a time when he was represented by counsel in the case involving the Stamford robbery.Thedefendantacknowledgesthat,becausethe statements concerned offenses for which he was not yet represented by counsel, they were admissible with respect to the charges stemming from the Norwalk and Greenwich robberies at the time of his trial on those charges. He claims, however, that, because the trial court granted the state’s motion for joinder and tried the charges in all three cases in a single proceeding, theincriminatingstatementscouldhaveinvitedthejury to infer that, if the defendant had committed the Norwalk and Greenwich robberies, he was likely to have committedtheStamfordrobbery.Thedefendantfurther claims that the trial court’s error was not harmless beyond a reasonable doubt. The state responds that the admission at trial of the defendant’s incriminating statements to Simmons was notimproperbecausethe NorwalkandGreenwichrobberies were separate offenses from the Stamford robbery and the defendant’s right to counsel, which is offense specific, had not yet attached to the Norwalk and Greenwich robbery charges when he mentioned his involvement in those robberies to Simmons. See, e.g., Texas v. Cobb, 532 U.S. 162, 167, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001) (sixth amendment right to counsel is ‘‘ ‘offense specific,’ ’’ meaning it does not attach until prosecution has commenced). The state adds that, to the extent the admission of this evidence was improper, it constituted harmless error. We agree withthestatethattheevidenceofthedefendant’sguilt, even without the testimony of Simmons regarding the Norwalk and Greenwich robberies, is so overwhelming and compelling that any error, even if it did exist, was harmless beyond a reasonable doubt. With respect to harmless error analysis, we have observed that, ‘‘[i]f the claim is of constitutional magnitude, the state has the burden of proving the constitutional error was harmless beyond a reasonable doubt. . . . Whether a constitutional violation is harmless in a particular case depends upon the totality of the evidence presented at trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. . . . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony
of the witness on material points, the extent of crossexamination 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. . . . In order to assess the harmfulness of the impropriety, we review the record to determine whether there is a reasonable possibility that the evidence . . . complained of might have contributed to the conviction . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Santos, 318 Conn. 412, 425, 121 A.3d 697 (2015). We apply a de novo standard of review to the defendant’s sixth amendment claim. Applying this standard in the present case, we conclude that any presumed error was harmless beyond a reasonable doubt. The defendant notes in his brief that ‘‘the identity of the perpetrator(s) in each incident, includingtheStamfordrobbery,wastheprincipalissue inthiscase.’’Thedefendantalsoconcedesthataconfession ‘‘is probably the most probative and damaging evidence that can be admitted against [a defendant] . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Artis, 314 Conn. 131, 154, 101 A.3d 915 (2014). Thus, it is extremely probative in this case thatthedefendantvoluntarilygaveadetailedstatement to the police one day after the Stamford robbery confessing to his role in that incident and that another fellowinmate,CheikhSeye,testifiedthatthedefendant had told him in July, 2010, that he had committed the Stamford robbery. Four eyewitnesses also gave testimonyregardingtheStamfordrobberythatcorroborated the defendant’s description of events inside the store, andtwooftheeyewitnesseswhohadchasedhimdown the street following the robbery not only corroborated the defendant’s account of many of his actions after running out of the store but saw him apprehended by the police when he was still wearing the stocking to conceal his face. Accordingly, we conclude that the defendant’sconvictionsresultingfromhisparticipation intheStamfordrobberyshouldnotbereversedbecause any presumed error by the trial court in admitting the incriminating statements was harmless beyond a reasonable doubt.3 II Thedefendantnextclaimsthatthetrialcourtviolated his sixth amendment right to confrontation,4 or, in the alternative, abused its discretion when it restricted defense counsel’s cross-examination of Teran Nelson, oneofthedefendant’scoconspiratorsintheGreenwich robbery,whotestifiedregardingthedefendant’sparticipation in the Norwalk and Greenwich robberies. The state responds that the defendant’s sixth amendment right to confrontation was not violated and that the trial court did not abuse its discretion because the trial court’s rulings did not prevent the defense from
embarkingonafarrangingcross-examinationofNelson thatexposedalloftheinformationthedefendantsought to enter into evidence and adequately addressed Nelson’s credibility. We agree with the state. The following additional facts are relevant to our resolution of this claim. At trial, Nelson repeatedly acknowledged on direct examination that he had entered into a cooperation agreement with the state in exchange for his promise to testify truthfully at trial and for immunity from several pending charges that could subject him to significant prison time. Nelson then testified regarding his involvement in the Greenwich robbery and how the defendant had entered the store and robbed and shot the clerk. He also testified that, in the aftermath of the Greenwich robbery, the defendant implied that he had committed the robbery andmurderinNorwalk.Nelsonadmitted,however,that he had lied to the police during an interview in the summer of 2010, when he denied being involved in the Greenwichrobbery,andduringaninterviewinSeptember, 2010, when he again denied participating in that robbery but stated that he had driven the defendant to Bridgeport following its commission. Nelson ended by testifying that, in December, 2010, upon learning that the defendant had spoken to the police regarding the robberies, he finallytold the truth, confessedto participating in the Greenwich robbery and entered into a cooperation agreement with the state. On cross-examination, defense counsel repeatedly queried Nelson about his obligation to tell the truth under the cooperation agreement, his repeated lies to the police before December, 2010, concerning the Greenwichrobbery,themultipleattemptsbytheGreenwichpolicetopersuadehimtotellthetruth,hisreasons for entering into the cooperation agreement with the state and, finally, the substance of the cooperation agreement, including the elimination of prison time for various pending charges in exchange for his truthful disclosure of any and all information he might possess inconnectionwiththeNorwalkandGreenwichrobberies. Defense counsel also questioned Nelson regarding certain details relating to the police interrogations, including being ‘‘threatened’’ on several occasions to tell the truth or ‘‘they would make this about you,’’ because the police already had evidence from other sources regarding the robberies and would know if Nelson was lying. In connection with this point, Nelson testified that Detective Pasquale Iorfino had told him duringthesummerinterviewaboutcertaindetailsrelating to the case that he wanted Nelson to confirm so he ‘‘would get a free walk,’’ even though Nelson resisted and did not tell the truth until December, 2010. In addition, defense counsel elicited testimony from Nelson that, if he did not testify truthfully at trial, he would risk losing the benefits provided under the cooperation agreement.
On redirect examination, Nelson again testified that he had lied to the police until he learned in December, 2010, that they had obtained information concerning the Greenwich robbery from other sources and ‘‘had everything on tape . . . .’’ Nelson also explained that he had heard parts of an audio recording in which Detective Iorfino was talking about the crime and that he had been told that the police also had an audio recording of the defendant talking about the crime, at which point Nelson decided to tell the truth in order to ‘‘[s]ave [him]self.’’ Turningtothegoverninglegalprinciplesandthestandard of review, we note that ‘‘[t]he sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . . As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendantbeallowedtopresentthejurywithfactsfrom whichitcouldappropriatelydrawinferencesrelatingto the witness’ reliability. . . . [P]reclusion of sufficient inquiryintoaparticularmattertendingtoshowmotive, biasandinterestmayresultinaviolationoftheconstitutional requirements of the sixth amendment. . . . Further, the exclusion of defense evidence may deprive the defendant of his constitutional right to present a defense. . . . ‘‘However, [t]he [c]onfrontation [c]lause guarantees onlyanopportunityforeffectivecross-examination,not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Thus, [t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . [Furthermore, the] trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption shouldbemadeinfavorofthecorrectnessofthecourt’s ruling in determining whether there has been an abuse of discretion. . . . [Finally, the] proffering party bears the burden of establishing the relevance of the offered testimony. . . . ‘‘Although [t]he general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial [court] . . . this discretion comes into play only after the defendant has been per
mitted cross-examination sufficient to satisfy the sixth amendment. . . . The constitutional standard is met when defense counsel is permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . Indeed, if testimony of a witness is to remain in the case as a basis for conviction, the defendant must be affordedareasonableopportunitytorevealanyinfirmities that cast doubt on the reliability of that testimony. . . . The defendant’s right to cross-examine a witness, however, is not absolute. . . . Therefore, a claim that thetrial courtundulyrestricted cross-examinationgenerally involves a two-pronged analysis: whether the aforementioned constitutional standard has been met, and, if so, whether the court nonetheless abused its discretion . . . .’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Brown, 273 Conn. 330, 338–40, 869 A.2d 1224 (2005). Mindfuloftheseprinciples,wefirstconsiderwhether the restrictions that the trial court placed on defense counsel’s cross-examination of Nelson complied with the minimum constitutional standards required by the sixthamendment.‘‘Thedefendant’sconstitutionalright to cross-examination is satisfied [w]hen defense counsel is permitted to expose to the jury the facts from which it appropriately can draw inferences relating to the reliability of the witness . . . . [W]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that wereallowed,andtheoverallqualityofthecross-examination viewed in relation to the issues actually litigated at trial.’’ (Citation omitted; internal quotation marks omitted.) Id., 340. After reviewing the record, we concludethatthedefendantwasnotdeprivedofameaningful opportunity to cross-examine Nelson because Nelson testified extensively regarding the circumstances leading up to and surrounding his cooperation agreement with the state, including his repeated lies to the police. The defense thus was ‘‘permitted to expose to the jury the facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’’ (Internal quotation marks omitted.) Id. The defendant nonetheless claims that the trial court prevented defense counsel from asking Nelson five questions on cross-examination that would have affordedthedefenseareasonableopportunitytoreveal weaknesses that might cast doubt on the reliability of Nelson’s testimony. These questions included: (1) whether certain Greenwich police officers, including Detective Iorfino, told Nelson what they wanted him to say in order to obtain the cooperation agreement;5 (2) whether Nelson had confessed or intended to ‘‘take the rap’’ for the Greenwich robbery and the attempted homicide;6 (3) whether Nelson made changes to his
written statement to the police after entering into the cooperation agreement;7 (4) whether the supervisory assistant state’s attorney (prosecutor) was the person whowoulddecidewhetherNelsonwastellingthetruth; and (5) whether Nelson was compelled, in order to secure the benefit of the cooperation agreement, to stand by the statements he had made to the police in exchange for the cooperation agreement.8 Followingacarefulreviewoftherecord,weconclude that the defendant’s sixth amendment right to confrontation was not violated when the trial court restricted defensecounsel’scross-examinationbypreventinghim from asking Nelson the foregoing questions. With respect to the first question concerning whether Detective Iorfino told Nelson what the police wanted him to say in exchange for the cooperation agreement, which the trial court precluded in part on the ground that it was based on a document not in evidence, Nelson already had testified that Detective Iorfino told him during the September, 2010 interview about certain details relating to the robbery that he wanted Nelson to confirm in exchange for the agreement.9 Similarly, withrespecttothesecondquestionconcerningwhether Nelsonhadconfessedtothepoliceorintendedto‘‘take the rap’’ for the Greenwich robbery and the attempted homicide, which the trial court also precluded because it was based on a document not in evidence, even if Nelson had responded in the affirmative, he already hadtestifiedthatheliedrepeatedlytothepoliceregarding the extent of his participation in the Greenwich robbery. Thus, the trial court’s preclusion of potential testimony that Nelson was willing to ‘‘take the rap’’ for the Greenwich robbery would not have raised a new ground on which to challenge his credibility. It merely would have added another inconsistent statement in a longlineofinconsistentstatementsregardingtheextent of his participation in the Greenwich robbery and the attempted homicide. With respect to the third question of whether Nelson made changes to his written statement after entering into the cooperation agreement, the defendant misunderstands the question defense counsel wanted to ask. Counsel did not ask Nelson that question but, rather, askedwhetherthepolicewanted himtochangecertain statements he made prior to December, 2010, in which he had lied under oath during his interviews with the policedespitethe promiseofacooperationagreement. Accordingly, the trial court did not preclude defense counsel from asking the question alleged to have been asked in this appeal. Asfordefensecounsel’squeryregardingwhetherthe prosecutor himself would determine whether Nelson was telling the truth, this question was not relevant to Nelson’s credibility or reliability as a witness because it had nothing to do with his testimony regarding either
his or the defendant’s participation in the Norwalk and Greenwich robberies. Finally, the question regarding whether Nelson was compelled to stand by his past truthful testimony or risk losing the benefit of the cooperation agreement was similar to many other questions by the defense intended to challenge Nelson regarding his obligation to tell the truth in exchange for the cooperation agreement. We thus conclude that the trial court did not improperly preclude defense counsel from asking this question because Nelson had given extensive prior testimony on direct examination and cross-examination, and subsequently gave additional testimony on redirect examination, describing his initial lies to the police and his eventual decision to tell the truth in exchange for the cooperation agreement. In sum, we conclude that the trial court’s rulings did not violate the defendant’s sixth amendment right to confrontation because the defense was given ample opportunitythroughoutcross-examinationtochallenge Nelson’scredibility.Theissueofhiscredibilityalsowas raised on direct and redirect examination, when he stated in response to repeated questioning that he initially had lied to the police over a period of several months regarding his participation in the Greenwich robbery and that he finally had decided to tell the truth inorderto‘‘save[him]self’’fromhavingtoservesignificant prison time for multiple pending charges. In addition, the defense was able to establish that Detective Iorfino had presented Nelson with certain details relating to the Greenwich robbery that he hoped Nelson would confirm by telling the truth in exchange for the cooperation agreement. Accordingly, we next consider the defendant’s claim that the restrictions on defense counsel’s cross-examination of Nelson constituted an abuse of the trial court’s discretion. The defendant argues that the trial court abused its discretionforthesamereasonsitsrestrictionsoncrossexaminationviolatedhissixth amendmentrightofconfrontation. We disagree. Some of the questions that the trial court precluded would have elicited testimony on facts already established, such as the questions concerningwhetherDetectiveIorfino toldNelsonwhatthe police wanted him to say in exchange for the cooperation agreement, whether Nelson intended to ‘‘take the rap’’fortheGreenwichrobberyandtheattemptedmurder, and whether Nelson was compelled, in order to secure the benefit of the cooperation agreement, to stand by the statements he had made to the police in exchange for the cooperation agreement. See Motzer v. Haberli, 300 Conn. 733, 742, 15 A.3d 1084 (2011) (‘‘[o]urrulesofevidencevesttrialcourtswithdiscretion to exclude relevant evidence when its probative value is outweighed . . . by considerations of undue delay, waste of time or needless presentation of cumulative
evidence’’ [internal quotation marks omitted]); see also Conn. Code Evid. § 4-3. Of the two remaining questions the trial court allegedly precluded, one question was never asked and the other question regarding whether the prosecutor was the person who would decide if Nelson was telling the truth was not relevant to the issuesofNelson’scredibilityortohistestimonyregardingtheNorwalkandGreenwichrobberies.

Outcome: Accordingly, the trial court did not abuse its discretion in restricting defense counsel’s cross-examination of Nelson. The judgments are affirmed.

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