241 Conn. 322 | Conn. | 1997
Lead Opinion
Opinion
The defendant, Jesus Correa, was charged in an eleven count information with crimes committed during the November 15, 1990 murder and robbery of two men on Adelaide Street in Hartford and with the crime of attempted escape from the Hartford community correctional center. The defendant was convicted, after a jury trial, of all counts.
The defendant claims that the trial court improperly: (1) admitted into evidence his statements to police because the statements were involuntary and given without a knowing, voluntary and intelligent waiver of
The jury reasonably could have found the following facts. Rodolfo Garcia Tamayo was a Hartford drug dealer. Jorge Trujillo Izquierdo, a native of Colombia, South America, supplied Garcia with cocaine from New York. On November 14, 1990, Garcia met with the defendant and Yo-Yo, another drug dealer. Yo-Yo, whose identity remains unknown, was a Colombian who formerly had been a steady customer of Trujillo. Garcia and Trujillo agreed that on the following day, November 15, 1990, they would sell the defendant and Yo-Yo one kilogram of cocaine for $20,000.
Between 7:30 and 8 p.m. on November 15, 1990, the defendant borrowed a tan Cadillac El Dorado from Felix Rivera, who planned to sell the car to the defendant. The defendant had agreed to pay Rivera $1800 for the car, of which one half would be paid in cash and one
The defendant and another person took the Cadillac to Adelaide Street, where Garcia and Trujillo were already waiting in Garcia’s car. When the defendant approached Garcia’s car, Garcia attempted to exit his car. The defendant shot Garcia in the shoulder and head, and Garcia fell back into the driver’s seat. The defendant then shot Trujillo, who was in the passenger seat, at close range in the head. He then shot Garcia again in the head. Garcia and Trujillo died of those wounds. Thereafter, the defendant removed a metal box from the back seat of Garcia’s car, ran to the Cadillac and jumped into its passenger side. The defendant and the driver then left the scene in the Cadillac.
After disposing of his gun, the defendant took the metal box to the apartment of his girlfriend, Elizabeth Delgado, arriving at about 9 p.m. The defendant had blood on his clothes. He told Delgado that “he had gotten into a fight . . . and he had to throw the gun away.” Inside the box was a block of cocaine with a street value of $100,000. The defendant gave one or two ounces of the cocaine to Rivera in partial payment of the Cadillac. The defendant then put the empty box in the Cadillac and hid the remaining cocaine in his apartment at 54 Barker Street in Hartford.
Five days later, on November 20,1990, the defendant was stopped in the Cadillac and arrested. During the early morning hours of November 21,1990, the Hartford police executed a search warrant at the defendant’s apartment. In the broiler pan storage area of the defendant’s oven, they found a bag containing 839.7 grams of cocaine. At the defendant’s apartment, the police also seized a shirt that later tested positive for gunshot residue on the left sleeve. Tests on the Cadillac showed
The jury could have found that the defendant’s crimes were motivated by the fact that he did not have $20,000 to pay Garcia and Trujillo for the cocaine and that he went to the meeting armed and intending to murder them and leave with the cocaine. The jury, therefore, could have, and did, find the crimes to be robbery murders.
On December 6, 1991, it was discovered that the defendant had cut the top and bottom portions of a bar in his cell window at the Hartford community correctional center. The defendant had used tape to hold the bar in place and to conceal what he had done. A hacksaw, pliers, screwdriver, and a roll of tape were found in the defendant’s cell. The defendant had also broken part of the louver window outside of the cell bars.
I
The defendant claims that the trial court improperly admitted into evidence three statements that he had given to the Hartford police. He argues that the statements were involuntary and given only as a result of threats, coercion and inducements made by the police. The defendant also claims that he made the statements without a knowing, intelligent and voluntary waiver of his Miranda rights. We find no merit to the defendant’s claims.
“[T]he use of an involuntary confession in a criminal trial is a denial of due process of law. Mincey v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); Jackson v. Denno, 378 U.S. 368, 376, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986).
“In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker. ... If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process. . . . State v. Chung, [202 Conn. 39, 53, 519 A.2d 1175 (1987)]. The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it; id., 53-54; including both the characteristics of the accused and the details of the interrogation. . . . State v. Madera, 210 Conn. 22, 41, 554 A.2d 263 (1989). Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep. . . . Id.; see also State v. Shifflett, supra, 199 Conn. 728. Under the federal constitution . . . coercive police activity is a necessary predicate to the finding that a confession is not voluntary .... Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).
“The trial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be over
The following evidence concerning the defendant’s statements was introduced. On November 20, 1990, at approximately 8 p.m., Officer Ramon Bermudez of the Hartford police department stopped a tan Cadillac El Dorado occupied by persons identified as suspects in a homicide. Six or seven other police cruisers arrived and several officers, including Bermudez, approached the Cadillac with their service revolvers drawn.
Officer Charles Allen ordered the defendant out of the Cadillac, which he was driving. Bermudez handcuffed the defendant and placed the defendant in his cruiser.
Bermudez transported the defendant to Hartford police headquarters at about 9 p.m. Rivera was also taken there in another cruiser. Both individuals were seated in a large room, several feet apart. About five minutes later, the police began to question the defend
When asked if he knew why he had been apprehended, the defendant said that he did not know. When told that he was a suspect in a double homicide, the defendant said that he had not killed anyone. Bermudez then asked the defendant to identify his nationality. Initially, the defendant claimed to be from Rio Pedras, Puerto Rico. When Bermudez, who knew the area, asked the defendant about Rio Pedras, the defendant admitted that he was not Puerto Rican, but rather, Colombian, and that he had entered the United States illegally about one and one-half years earlier. The defendant also stated that his family was residing illegally in the United States. The police then told the defendant that if he would tell them what had happened, they would see what they could do for his family with the Department of Immigration and Naturalization Services. The defendant shrugged his shoulders and did not respond.
Fifteen to twenty minutes into the interview, the defendant was informed that he was lucky that the police had picked him up. The defendant was told that the police had information that two people were being paid $50,000 to kill him because he had killed someone very important in the New York drug business. The defendant was also told that the hired killers might go after his family if they could not reach him. The defend
In the interview, the defendant was questioned about the Cadillac and his whereabouts on November 15,1990. The defendant said that he had bought the Cadillac from Rivera on the night of November 15. He stated that he paid for the car with money he had earned working as a janitor at the federal building in Hartford. The defendant also stated that he usually worked from 12 to 9 p.m. and had worked the night of the murders. When confronted with the contradiction of having both worked and purchased the car on the same night, the defendant explained that his car was parked on Hungerford Street between 7 and 9:30 p.m. that night. The police told the defendant that he was one of the “most confused persons” ever and that someone had seen his car leaving the crime scene. The defendant continued to remain calm and to maintain that he had not killed anyone. During the interview, the defendant also stated that he had a beeper.
The detectives also showed the defendant two photographs, which they identified as the men whom he had killed. The photographs had been taken prior to the victims’ deaths. Only then did the defendant appear to become nervous and agitated. The defendant would not look at the photographs despite the requests of the detectives and continued to assert that he knew nothing. The interview ended after forty-five minutes to one hour. Thereafter, the defendant was moved to an interview room at about 10 p.m.
At approximately 3:10 a.m. on November 21, 1990, Officer Ezequiel Laureano, who had been assigned to transport the defendant to the booking area and who spoke Spanish, entered the interview room where the defendant was being held and handcuffed him. There is no evidence of any attempt by the police to interview
The defendant told the officers that, at 6:30 p.m. on November 15, 1990, he was in front of 179 Hungerford Street when he was approached by a man he knew as Luis Carlos. This man asked the defendant if he could borrow the defendant’s car to take his girlfriend home, and the defendant agreed. The defendant had become very upset because Carlos did not return with the car until sometime between 9 and 10 p.m. When Carlos finally returned, the defendant had a heated argument
Between 6:20 and 8:10 a.m. on the morning of November 21, 1990, Detective Louisa St. Pierre, who spoke Spanish, took a written statement from the defendant. St. Pierre discussed with the defendant his Miranda rights. In response, he stated that he had been given
St. Pierre then asked the defendant questions to which he gave responses that St. Pierre typed in Spanish. During this interview, the defendant was shown the shirt he had worn the night of the murders. This shirt had been seized by the police during a search of the defendant’s home that morning. When the two page statement was completed, the defendant read it. St. Pierre explained to the defendant the English portions of the form on which the statement was typed.
In the statement, the defendant claimed that Carlos had borrowed the Cadillac from him on the night of the murders, that Carlos had returned late, and that they had had a fight during which the defendant got blood on his pants. The defendant further claimed that he had discovered the cocaine in his car only after returning to Delgado’s house.
The defendant argues that the combination of the circumstances of his arrest, the intimidating attitude of the police, the offer concerning the immigration status of his family, the statements regarding the $50,000 contract against his life, and his alienage and lack of education render his statements involuntary.
An involuntary confession may result from psychological, as well as physical, coercion. Miller v. Fenton, 796 F.2d 598, 602-603 (3d Cir. 1986). “However, while a per se involuntariness rule applies when an interrogation is accompanied by physical violence, see Stein v. New York, 346 U.S. 156, 182, 73 S. Ct. 1077, 1091, 97 L. Ed. 1522 (1953), no such rule applies when the alleged coercion is psychological. [Id., 184]. As the [United States] Supreme Court has noted, ‘[t]he line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused.’ Haynes v. Washington, 373 U.S. 503, 515, 83 S. Ct. 1336, 1344, 10 L. Ed. 2d 513 (1963).” Miller v. Fenton, supra, 604.
We agree with the trial court that the defendant’s will was not overborne by any promises, threats or coercion. The trial court aptly observed: “I don’t see whether the court . . . could come to any conclusion that the confession ... if this was a confession and I am not sure that it was a confession, a statement made by the defendant, was not freely and voluntarily made.”
It is significant that the defendant never confessed to the murders and robbery in response to the police statements that he now claims to have been psychologically coercive. While the defendant stated during the initial interview that he owned the Cadillac El Dorado and had a beeper, we conclude that, under the circumstances, the defendant was never “coerced” into providing this information. The defendant had been apprehended while driving the Cadillac with Rivera,
Approximately five hours later, however, the defendant initiated a statement when Laureano came to take him to the booking room. The defendant does not claim that Laureano sought to question him or asked him to give a statement. Instead, the defendant sought to explain away his possession of the incriminating Cadillac. Later in the morning, while being shown the shirt that police had seized from his apartment, the defendant also tried to explain away the metal box containing cocaine that Rivera had seen in his possession on November 15, his bloody clothes and the kilogram of cocaine that the police would discover. All the while, he attempted to incriminate Carlos. If the defendant’s will was overborne, it is highly unlikely that he would have signed a statement in which he accused another individual of being the killer. The defendant’s consistent claims that he had not been involved in the crimes provide strong evidence that his will was not overborne by any police tactics. See Self v. Collins, 973 F.2d 1198, 1214 (5th Cir. 1992) (“[i]f [the defendant] had been coerced into saying whatever would please law enforcement officials, it seems most unlikely that they would have allowed him to sign a confession that was inconsistent with the physical evidence”); McCall v. Dutton, 863 F.2d 454, 460 (6th Cir. 1988) (“it is noteworthy that [the defendant’s] denials were consistently exculpatory and he persistently identified [another] as the individual who shot and killed [the victim]”); United States v. Pelton, 835 F.2d 1067, 1073 (4th Cir. 1987) (defendant’s
We do not find any evidence that the defendant’s statements were procured by use of the police tactics of which the defendant complains. Other facts support our conclusion that the statements were not the product of police coercion. The defendant was transported to police headquarters, where he was seated in a large room, and in no way threatened with physical force. There, the police repeatedly read the defendant his Miranda rights before beginning the interrogation. “[A] warning at the time of the interrogation is indispensable to overcome its pressures and to [e]nsure that the individual knows he is free to exercise the privilege at that point in time.” Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); see State v. Lapointe, 237 Conn. 694, 734, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996).
The defendant argues that the police statements regarding his family’s immigration status and the purported contract on his life overcame his will. We disagree.
In sum, we agree with the trial court that the defendant’s statements were the result of the police stopping the defendant in the Cadillac and informing him that someone saw the Cadillac leave the crime scene rather than of any of the other interrogation techniques employed by the police, which the defendant labels as coercive. The initial interview of the defendant, in which the circumstances the defendant complains of took place, lasted until about 10 p.m. The defendant was then taken to the interview room until 3:10 a.m. During that time, he was not interrogated. When Laureano then went to the interview room to take the defendant to be booked, the defendant initiated, as the trial court found, his statement attempting to incriminate Carlos. Later in the morning, after the defendant had been shown the shirt seized from his apartment, he added that he had fought with Carlos, leaving blood on his clothes, and that he had found the box of cocaine in his car. We conclude that the defendant’s statements were voluntary and properly admitted against the defendant at his trial.
With respect to the waiver of his Miranda rights, the defendant argues that the same police conduct that coerced him into giving statements also establishes that his waiver was not knowing, intelligent and voluntary. As the evidence presented above demonstrates, however, the police repeatedly advised the defendant of his Miranda rights and ascertained that he understood
II
The defendant claims that the trial court denied him his rights to due process and a fair trial
The fact that a defendant is not formally charged as an accessory pursuant to General Statutes § 53a-8 does not preclude a conviction as such. State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986). “This state . . . long ago adopted the rule that there is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility.” State v. Harris, 198 Conn. 158, 164, 502 A.2d 880
In State v. Steve, 208 Conn. 38, 45-46, 544 A.2d 1179 (1988), however, it was held that the defense was prejudiced as a result of a substantial variance between the allegations in the bill of particulars that the defendant was the principal and the court’s instructions concerning accessorial liability where the state presented no evidence in its case-in-chief that the defendant had acted as an accomplice. “The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise. State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983). A bill of particulars limits the state ‘to proving that the defendant has committed the offense in substantially the manner described.’ State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).” State v. Steve, supra, 44-45.
The state argues that Steve is distinguishable because in this case the state alleged in the substitute information and bill of particulars that the defendant was guilty of two counts of felony murder because he, or another participant in the robbery, caused the deaths of the victims by shooting them with a handgun. The state also argues that the state’s attorney provided the defendant with notice of the accessorial liability theory by stating, at the end of the state’s case-in-chief, that he would request an instruction on accessorial liability if the defendant attempted to introduce evidence that the defendant was an accessory rather than the principal
The trial court instructed the jury that in order to convict the defendant of capital felony and the two counts of murder, the jury must find beyond a reasonable doubt that the defendant committed the murders of the two victims. With respect to the two counts of felony murder, the court instructed the jury that it must find that the defendant, or another participant, caused the deaths of the victims while in the course of or in furtherance of the commission of robbery in the first degree. Finally, the court instructed the jury that in order to convict the defendant of robbery in the first degree, it must find that the defendant, or another participant, caused serious physical injury or was armed with a deadly weapon in the course of the commission of a crime or immediate flight therefrom.
After the court instructed the jury, the court excused the alternates immediately before lunch and did not return until after 3 p.m. At 2:20 p.m., the jury sent a note asking if it should begin deliberating and requesting pads of paper and a list of charges. At 3:25 p.m., the jury sent a second note asking the following question: “Count[s] six and seven [the two counts of felony murder], does the defendant have to be the person causing the murder in order to find him guilty or merely a participant in [the] robbery in which the victim
The defendant argues that the supplemental instruction on accessorial liability requires reversal of the judgment as to the capital felony count, the two counts of murder and the robbery count.
We do not agree with the defendant that the jury’s findings demonstrate prejudice where the substitute
We do not read each count specified in the substitute information and bill of particulars in isolation. See State v. Beaulieu, 164 Conn. 620, 626, 325 A.2d 263 (1973) (information supplied by another count). In this case, the defendant was charged with three counts of conspiracy,
Ill
The defendant claims that his conviction of capital felony violates his state constitutional rights to due process, a fair trial and the prohibition against cruel and unusual punishment because the jury did not unanimously agree on whether the defendant was liable as a principal or an accessory for the shooting deaths of Garcia and Trujillo.
The defendant urges us here to find greater protection of his rights under the state constitution than under the federal constitution as interpreted by the United States
Nothing in the history or text of our constitution supports the defendant’s claim. It is also plain that federal decisions do not support his position. An argument similar to the defendant’s was rejected by the court in Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991), which contains strong and convincing arguments against reaching any other result under our constitution. In Schad, the United States Supreme Court deferred to the states’ determination that certain statutory alternatives are mere means of committing a single offense. This court has repeatedly so held concerning principal and accessorial liability. State v. Flanders, 214 Conn. 493, 504, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990); State v. Smith, 212 Conn. 593, 605, 563 A.2d 671 (1989); State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985); State v. Kemp, 199 Conn. 473, 480 n.4, 507 A.2d 1387 (1986).
While giving initial deference to legislative competency in defining the elements of a crime, the court in Schad also recognized that fundamental fairness, as taught by “history and wide practice,” as well as “the moral and practical equivalence” of the different elements required under a statute should be considered. Schad v. Arizona, supra, 501 U.S. 637. The Connecticut legislature has provided that “[a] person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he
With respect to the development of the law in other jurisdictions, the Schad court observed, in the words of the concurring opinion, that it has long been the general rule that when a single crime can be committed in various ways, a jury need not agree on the mode of commission. Schad v. Arizona, supra, 501 U.S. 651 (Scalia, J., concurring). Such historical and contemporary acceptance is further evidence that the defendant’s conviction of capital felony does not offend some principle of justice so rooted in the tradition of our people as to be ranked as fundamental. Id., 643.
Finally, the Schad court considered whether the alternative means, as developed by the evidence, were morally equivalent. The record here shows that the jury found that the defendant either intentionally caused the death of the two victims or aided and abetted another in killing the two victims with the intent that they be killed. There was evidence that the motive and result of these murders was the robbery of one kilogram of cocaine and that both victims were shot in the head as they sat in their car with the cocaine. Under these circumstances, we conclude that there was evidence from which the jury could find a highly culpable mental state on the defendant’s part under either means of committing murder. Such equivalence “is enough to rule out the argument that . . . moral disparity bars
We therefore reject the claim that the defendant has a right under the Connecticut constitution that the jury unanimously agrees on his liability as a principal or an accessory in his commission of a capital felony. Such a rule would lead to absurd results where, as here, the jury disagreed only about the defendant’s exact role in the murders and there was ample evidence that he had intended the two victims to be killed. Our decision is, at its core, necessary and “indispensable in a system that requires a unanimous jury verdict to convict.” Id., 651 (Scalia, J., concurring).
IV
The defendant next claims that the state violated his rights to due process and a fair trial by eliciting testimony from the defendant’s brother, Miguel Correa Motta, that the defendant did not discuss with his brother how he had obtained the block of cocaine, and by arguing in the presence of the jury that the defendant’s statements to police that he found the cocaine in his car were inconsistent with the fact that the defendant did not give this explanation to his brother. The defendant made a motion for a mistrial, which the trial court denied. The court did, however, grant the defendant’s motion to strike his brother’s testimony and the state’s argument. We conclude that the trial court did not abuse its discretion in denying the motion for a mistrial.
The state called Miguel Correa as a witness. On direct examination, Miguel Correa identified the defendant as his brother and testified that after the defendant was arrested, he visited the defendant in jail usually twice a month. Miguel Correa testified that when he asked the defendant “how his problem was going,” the defendant responded that “they were accusing him of possession
On the completion of this examination, and while the jury was present, the defendant moved to strike the testimony as irrelevant. The court asked the state to what the elicited testimony was supposed to be foundational. The state answered that the testimony was relevant because if the defendant was truthful in telling police that he found the drugs in his car, then he would have told his brother, who he knew hated illegal drugs, that he had come into possession of the drugs by innocent means and had no intention of selling them.
The next day, outside of the presence of the jury, argument continued regarding the defendant’s motion to strike. The defendant also made a motion for a mistrial. He argued that a mistrial was required in view of the testimony before the jury. The court granted the defendant’s motion to strike. The court denied the motion for a mistrial, however, stating: “I don’t feel there is anywhere near sufficient prejudice, and especially with cautionary instructions that I’m going to give the jury that the defendant is — would be in any way prejudiced.” The court then summarized Miguel Correa’s testimony for the jury, including the inferences that the state argued could be drawn from the testimony, and instructed the jury “that [the] evidence that
The defendant argues that the state improperly failed to bring the admissibility of the defendant’s silence to the attention of the court prior to presenting it to the jury and failed to lay a basic foundation for the claim of admission. The defendant contends that this was in contravention of practice and the obligations of the state’s attorney’s office, and was exacerbated by the state’s arguments before the jury. The defendant argues that the striking of this testimony and the rendering of a curative instruction were not sufficient to cure the prejudice caused by the state’s attorney.
“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . State v. Wooten, [227 Conn. 677, 693-94, 631 A.2d 271 (1993)]. On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972).” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 836-37, 661 A.2d 539 (1995). The trial court is in a better position than we are to evaluate
We are unpersuaded that the state’s presentation of Miguel Correa’s testimony and its comments concerning that testimony were so prejudicial, in the context of the whole trial, that the defendant was denied a fair trial. See State v. Traficonda, 223 Conn. 273, 282-83, 612 A.2d 45 (1992).
The defendant relies on State v. Bryant, 202 Conn. 676, 706, 523 A.2d 451 (1987), for the proposition that “ [consistent with a defendant’s constitutional rights, the prosecution, in accord with the high standards of that office, must act in good faith” in its presentation of evidence. Bryant specifically concerned the prudence of holding a bench conference to ascertain whether a proper foundation existed for cross-examining an alibi witness about the witness’ pretrial silence. Id., 705. We do not doubt that a bench conference, initiated by the state’s attorney or the trial court, should have been held here.
Finally, the defendant argues that the state’s attorney violated Practice Book § 288 by arguing, in the presence of the jury, the inferences that he claimed could be drawn from Miguel Correa’s testimony. Section 288 provides in pertinent part: “Whenever an objection to the admission of evidence is made . . . [argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point.” As the defendant recognizes, the trial court asked the state to what Miguel Correa’s testimony was supposed to be foundational. The state responded that the testimony created an inference that the defendant’s statements to the police were untrue. The state did not, as the defendant contends, take the opportunity to take advantage of the court and the defendant, but was presenting its theory of relevancy.
While the state’s presentation of Miguel Correa’s testimony and its theory regarding the inference to be drawn therefrom was not based on sound evidentiary principles, it is not likely that the jury would be prejudiced by this portion of the proceedings. “Due process seeks to assure a defendant a fair trial, not a perfect one.” State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982). The trial court struck Miguel Correa’s testimony
V
The defendant next claims that the trial court improperly admitted the expert testimony of Special Agent Richard Foster of the Federal Bureau of Investigation.
“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. State v. Campbell, 225 Conn. 650, 654, 626 A.2d 287 (1993); State v. Kemp, [supra, 199 Conn. 476]; State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Coffin v. Laskau, 89 Conn. 325, 330,
When the state offered Foster as a witness, the defendant objected to testimony concerning a Colombian or South American connection to cocaine that was being brought into Hartford through New York City. He claimed that evidence of such a connection was prejudicial and its prejudicial impact outweighed its probative value. The court agreed and restricted the evidence to portrayal of the roles of “mules,” those people who transport the drugs, and middle-level, local dealers distributing the cocaine in Hartford since the evidence presented a reasonable basis for equating those roles with Garcia and Trujillo. During the lengthy colloquy that followed, the defendant conceded that evidence of the value of the cocaine, one kilogram of 54 percent purity, would be relevant on the issue of motive. The defendant persisted, however, in his claim that even this evidence would be prejudicial because it linked him to a worldwide drug problem in which cocaine came from South America. The court then restricted the testimony to evidence that cocaine comes from New York City to Hartford in order to avoid any connection of the defendant to an international drug cartel. Thereafter, Foster testified before the jury concerning the operation of a cocaine distributor, the value of the cocaine removed by the police from the defend
The defendant argues that Foster’s further testimony concerning the use of weapons, the potential for robbery and homicide during drug dealings, the interest of major drug dealers to retaliate for robberies with violence and the robbers’ interest in, and means of, escaping retaliation should not have been allowed. He argues that the jury already knew of these circumstances and that expert testimony was not required, especially because the testimony was prejudicial.
We conclude that expert testimony concerning drug trafficking and its potential for violence may be admitted into evidence. State v. Delossantos, 211 Conn. 258, 281, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989) (“expert testimony that individuals possessing large amounts of drugs often carry weapons to protect their goods”). Even in this era when drugs and drug dealing have been widely portrayed in the media, the state may present evidence from those who have observed firsthand what is really happening on the streets. Here, the court was careful to instruct the jury that Foster’s testimony should not be considered a judgment of the defendant’s guilt, but only a view into a world that might be unknown to the average juror.
Furthermore, Foster’s testimony concerning the use of weapons, the value of the kilogram of cocaine ($20,000 wholesale and $100,000 retail) and the use of murder to avoid retaliation was in every respect consistent with the evidence. There was evidence that the defendant arranged to buy one kilogram of cocaine for $20,000, that he went to make the deal armed with his nine millimeter pistol, that the dealers were shot at point blank range in the head while still in Garcia’s car
VI
The defendant next claims that, in closing arguments, the state improperly appealed to ethnic prejudice and commented on the defendant’s silence and failure to testily. The defendant did not preserve these claims at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
A
Prosecutorial misconduct may occur in the course of closing arguments. State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987); State v. Couture, 194 Conn. 530, 563-64, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). “In order to deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We
The defendant points to two isolated remarks by the state’s attorney in the course of his closing arguments. In his opening summation, the state’s attorney stated: “What this case is about is the dark and shadowy world of drugs, where greed leads to the buying and selling of the souls of men. A case about a Colombian who came to this country and who exploited the demand for drugs that exists here. Who became a merchant of despair and destruction.” Then in rebuttal, the state’s attorney stated: “Don’t let [the defendant] laugh at the American system of criminal justice . . . . Just tell this man that in America, we do not tolerate the execution of people for the love of money.”
The defendant argues that the state’s attorney’s remarks improperly appealed to prejudice against Colombians. The defendant contends that by stressing the defendant’s ethnicity, the state’s attorney invoked stereotypes of “violence, murder, drugs [and] lawlessness.” Bermudez had testified before the jury that the defendant admitted to being from Colombia after the officer questioned him about Rio Pedras, Puerto Rico, from where the defendant initially claimed to have come. Also, there was evidence that, on the night of November 15, 1990, the defendant saw a newscast covering the murders and “had a small laugh.” The state’s
We likewise cannot conclude that, to the extent that the comments were inappropriate, they seriously prejudiced the defendant. The defendant fails to point to a sufficient pattern of misconduct to demonstrate blatantly egregious behavior. See State v. Williams, 231 Conn. 235, 245-47, 645 A.2d 999 (1994). The defendant cannot, by identifying isolated remarks, set forth a claim of constitutional magnitude. State v. Chance, 236 Conn. 31, 64, 671 A.2d 323 (1996); State v. Atkinson, supra, 235 Conn. 770; State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990); State v. Smith, 209 Conn. 423, 428, 551 A.2d 742 (1988). This claim is therefore not reviewable under State v. Golding, supra, 213 Conn. 239-40.
B
The defendant also argues that the state’s attorney commented on the inability to cross-examine the defendant, who did not testify, regarding the defendant’s statements to police. He claims that this was misconduct because it attracted the jury’s attention to the defendant’s decision not to testify.
“It is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). . . . This
During his opening summation, the state’s attorney reviewed the defendant’s statements to Officer Laureano. He stated that after the defendant was read his Miranda rights, the defendant “tells some of the story. It’s this incremental disclosure based on how much in trouble he thinks he is.” The state’s attorney then noted that although the defendant told Laureano that he wanted to reveal everything that he knew about the murders, he did not tell Laureano about being at Delgado’s house, that he just bought the car’, that he had been in a fight or that he had found drugs in his car.
In rebuttal, the state’s attorney argued that in the defendant’s closing argument, “defense counsel [relied] on things the defendant said in his statement to the police, a statement that we can’t cross-examine, but ... in that statement, the defendant says he found the box in his car.” We conclude that the state’s attorney
VII
Finally, the defendant requests that we inspect the exhibits sealed by the trial court to determine whether the contents were exculpatory and should have been disclosed. The record reveals that the defendant filed a pretrial motion for the disclosure of exculpatory evidence. During trial, the court reviewed numerous documents turned over by the state and, after determining that the state was not required to disclose the information in the documents, sealed them. We are unpersuaded by the defendant that he was prejudiced by that nondisclosure.
The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution. Brady v. Maryland, 373 U.S. 83, 86, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); State v. Simms, 201 Conn. 395, 405 and n.8, 518 A.2d 35 (1986). “In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the
“[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Shannon, supra, 212 Conn. 399; State v. Pollitt, 205 Conn. 132, 148-49, 531 A.2d 125 (1987). “The determination of materiality has been said to be ‘inevitably fact-bound’ and like other factual issues is committed to the trial court in the first instance.” State v. Pollitt, supra, 147. We have reviewed the sealed exhibits and the record, in the manner presented, and conclude that the defendant was not prejudiced. These documents provide no basis for the reversal of the defendant’s conviction. State v. Rasmussen, 225 Conn. 55, 92, 621 A.2d 728 (1993).
The judgment is affirmed.
In this opinion CALLAHAN, C. J., and NORCOTT and PETERS, Js., concurred.
The defendant was convicted of one count each of conspiracy to commit capital felony in violation of General Statutes §§ 53a-48 and 53a-54b (8), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, capital felony in violation of General Statutes § 53a-54b (8), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48, 53a-133 and 53a-134 (a) (1) (2), robbery in the first degree in violation of General Statutes §§ 53a-133 and 53a-134 (a) (1) (2), possession of narcotics with intent to seE in violation of General Statutes § 21a-278 (b), and attempt to escape in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-169 (a) (1), and of two counts each of murder in violation of General Statutes § 53a-54a (a), and felony murder in violation of General Statutes § 53a-54c.
Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Brady v. Maryland,, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
When apprehended the defendant was not under the influence of drugs or alcohol and did not appear nervous or surprised by the stop.
Laureano testified that the defendant described the dispute as a verbal altercation only and that the defendant made no mention of a physical altercation.
These portions provided: “I, Jesus Correa, of 54 Barker Street in Hartford was bom on [D]ec:ember 16, 1961, in Cali, Colombia, South America. I attended five grades of school. I cannot read or write English. I’ve lived at my present address for five months. . . . This statement was given at 50 Jennings Road, Hartford, Connecticut. ... I am giving the following statement of my own free will on well accord without fear, threat of promise.”
The defendant’s statement reads: “I am in the police station in the city of Hartford, in the state of Connecticut giving this statement about what I know concerning a homicide that occurred on Thursday, November 15. This statement is being taken by Detective Louisa St. Pierre in Spanish because I do not read English.
“The detectives gave me my rights and I know that I do not have to say anything about my part in the homicide. But I decided to tell the truth about everything I can.
“The Thursday that the homicide occurred I went to work in the morning in Center Enterprises where I have worked for a year and a half. I worked all day and got out at 4:30 in the afternoon. After I got out of work I went to my house and I bathed and changed my clothes. Afterwards I went to my girlfriend’s house [whose] name is Elizabeth Delgado and lives on the Street Hillside Avenue. I arrived at her house about six in the evening. Her
“He wanted to sell the car for 1,800.00 dollars. I told him that I was going to buy it and I took the car. I went to Hungerford Street where I parked the car and I spoke with some friends. There were like four friends there. There was one named Pedro, Esteban, Jose also, there was the man whom I lent the car to and his name is Luis Carlos. He is a Puerto Rican. I do not know the last name of any of the men that were together with me when I parked the car.
“Luis Carlos told me that he found the car very pretty and told me to lend it to him. to go for a spin.. I let him take it and he returned very late. I thought that he was going to take it only to go for a spin. Luis Carlos returned late it was close to 8:30 ... in the evening. When he arrived we had a discussion and fought. Fought using fists. Luis Carlos is a little taller and bigger than I.
“I hit him a few times once I hit him with the knee in the mouth. And took the chance of entering in the car and left. I went directly to the home of Elizabeth. I arrived at Elizabeth’s home like after nine at night. When I arrived at Elizabeth’s house I was bleeding. On the pants I had blood. I had a coffee color pants and a green shirt. The shirt was shown to me by the detective. He brought it to the police station. The shirt was in my sister’s house.
“Elizabeth asked me what had happened. Because I had blood on the pants. I told her that I had gotten into a fight. I told her that I had a fight with a ‘Boricua.’ Afterwards I wanted to leave in the car but it would not start. I returned and told her to call me a taxi that I was going to my home. It was past 10 [p.m.] and Elizabeth’s husband arrives like around twelve at night. Elizabeth called her sister-in-law and Elizabeth’s brother took me home. I arrived home around eleven at night.
“When I arrived at Elizabeth’s house I parked the car and when I was going to get out of the car I saw a box on the passenger side. I saw a small coffee color metallic box on the floor of the car. I opened the box and saw that it had a quantity of ‘perico’ inside. I took the perico out of the small box. I returned it an[d] put it in the small box and took it upstairs to Elizabeth’s house. Elizabeth saw it and asked me what that was. I told her that it was some drugs that were in the car. When Elizabeth’s brother came to take me home I had the perico in a bag. I had the cocaine in a paper bag when he took me home. When I arrived at my home I put away the cocaine . . . under the stove in my sister’s home with whom I lived. . . .
“On Saturday there was a party at my house and I did not take out the car. On Sunday, I left about one in the afternoon. I went to a friend[’s] house whom I asked to give me a ride.
“The box that had the cocaine is behind in the trunk of the car, I put it there.”
The defendant also claims that “[t]he record here is severely hampered by the court’s refusal to allow testimony on the specific questions [the] police asked the defendant during the interrogation and the defendant’s response.” The defendant argues, therefore, that he was denied a fair hearing on the issue of the voluntariness of his confession. The futility of this argument, however, is demonstrated by the specifics of the defendant’s primary claim. After the trial court initially denied the defendant’s motion to suppress, the state revealed that during the initial interview there had been discussions concerning the deportation status of the defendant’s family and the contract on his life and that the police had attempted to show the defendant, photographs of the victims. The motion to suppress was then opened, and Bermudez was recalled to testify regarding the specific questions the police had asked the defendant. The defendant then had every opportunity to explore the issue of voluntariness on cross-examination of Bermudez, or by calling his own witnesses, which he chose not to do.
The defendant also points to the fact that the police tried to show him photographs of the victims. The defendant reacted to this by rocking in his chair and breaking out in “like a cold sweat.” We do not agree with the defendant, however, that this police action coerced him to give a confession. The photographs of the victims, which depicted them while alive, were not the type to overcome his free will. The defendant was calm and collected for the remainder of the interrogation, both before and after the police tried to show him the photographs. See United States v. Major, 912 F. Sup. 90, 96 (S.D.N.Y. 1996). Furthermore, despite the defendant’s physical reaction to the photographs, he continued to deny involvement in the shootings.
The defendant cites the fifth, sixth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article I, §§ 8, 9.
The state argues that the defendant’s claim pertains only to the capital felony count. We disagree.
The state’s attorney specifically stated: “I just want to mention on the record that there is a case ... on the issue of accessorial liability and I did want to apprise the court that the state does or may ... at the time of the charge to the jury, ask the court and the state may rely ... on the statute that allows somebody charged as a principal to also be found guilty as an accessory, regardless of whether the information so charges it.”
The jury also asked whether the defendant had to be the actual perpetrator for count eight, conspiracy to commit robbery in the first degree. The court told the jury that the defendant had to be an actual conspirator.
The trial court initially instructed the jury, pursuant to the language of § 53a-134 (a) (1) and (2), that the defendant or another participant, in the crime caused serious physical injury to any person or was armed with a deadly weapon. The defendant does not object to that initial instruction. Therefore, it can hardly be seen how the supplemental instruction prejudiced him with respect to the robbery count.
Count one alleged conspiracy to commit capital felony, count two alleged conspiracy to commit murder, and count eight alleged conspiracy to commit robbery in the first degree.
The dissent argues that this case is more egregious than State v. Steve, supra, 208 Conn. 38, where a majority of this court found prejudice to the defendant. In Steve, the defendant claimed to have relied on the absence of an accessory charge when he took the witness stand and testified in his own defense that a second person had actually shot the victim and that he had not participated although he had been present. Id., 42. The majority of the court in Steve concluded that it was “probable that the defendant’s
The defendant relies on the constitution of Connecticut, article first, §§ 8, 9 and 19.
Article first, § 8, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”
Article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
Article first, § 19, provides: “The right of trial by jury shall remain inviolate.”
Miguel Correa also testified as to where he was employed.
Practice Book § 887 provides in relevant part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . .”
While it is unclear on what specific basis the state sought to introduce Miguel Correa’s testimony, the state, despite the defendant’s arguments otherwise, was likely attempting to introduce evidence of the defendant’s silence as an admission. “[Statements made within the accused’s hearing, which are relevant and material, to which he makes no reply, may be given in evidence as indicative of conduct on his part, when the circumstances show that he heard, understood and comprehended the statement, and the facts are known to him and he had the opportunity to speak and the circumstances naturally called for a reply from him. State v. Harris, 182 Conn. 220, 228, 438 A.2d 38 (1980), quoting State v. Ferrone, 97 Conn. 258, 265-66, 116 A. 336 (1922). State v. Morrill, [197 Conn. 507, 535, 498 A.2d 76 (1985)].’’ (Emphasis added; internal quotation marks omitted.) State v. John,
The defendant has not claimed that Foster was unqualified to testify as an expert witness.
“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.
The defendant later related this information to Detective St. Pierre.
We note that it is well established that the principle of Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), that the use of a defendant’s silence after receiving Miranda rights may not be used to impeach the defendant at trial, is not violated in situations such as tills where the defendant has chosen not to remain silent. See State v. Joly, 219 Conn. 234, 256-57, 593 A.2d 96 (1991); State v. Lytell, 206 Conn. 657, 661-62, 539 A.2d 133 (1988); State v. Casey, 201 Conn. 174, 185, 513 A.2d 1183 (1986); State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985).
Dissenting Opinion
dissenting. The defendant’s state and federal constitutional rights to due process and a fair trial were violated when the trial court improperly instructed the jury that it could find the defendant guilty of capital felony and robbery, either as a principal or as an accessory, after the jury had already commenced its deliberations, and when accessorial liability was neither alleged in the substitute information on those counts nor supported by the evidence. The egre
In State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), the majority of the court reversed a conviction because of the state’s failure to put the defendant on notice that he was being prosecuted as an accessory as well as a principal. In Steve, the court held as follows: “We conclude that . . . the defendant was prejudiced in his defense as a result of a substantial variance between the allegations in the bill of particulars and the court’s instructions concerning accessorial liability. It is clear that the presentation of his defense relied upon the state’s claim [in its bill of particulars] that the defendant was in fact the principal of each crime. . . . It is significant that the state presented no evidence in its casein-chief suggesting that the defendant had acted as an accomplice. . . . The state did not seek to amend its information to allege that the defendant had acted as an accomplice . . . .We do not regard the state’s notification to the defendant prior to [closing] argument of its intention to request a charge on accessorial liability as equivalent to an amendment offered seasonably before the close of evidence. . . . Accordingly, we need not decide whether such an amendment would have
In an attempt to distinguish this case from Sieve, the majority claims that the defendant was put on notice of accessorial liability, based upon the conspiracy counts from the “substitute information and bill of particulars” (substitute information) that the majority has applied completely out of context — that is, the majority points to clauses that allege that the defendant “agreed with another person, who is believed to use the street name, ‘Yo-Yo,’ to intentionally cause the death of [the victims] . . . .’’First, this is not language of accessorial liability, but, rather, it is that of a conspiracy. This is made absolutely clear by the fact that the substitute information does not refer to the accessorial liability statute, General Statutes § 53a-8,
Furthermore, the substitute information was filed in response to the defendant’s motion for a bill of particulars,
Finally, even the assistant state’s attorney conceded at trial that the defendant was charged as a principal when he stated to the trial court that if the defense were to suggest, by way of evidence or argument to the jury, that the defendant was an accessory, then the state would seek an accessory instruction “even though he was charged as a principal in the information.”
The majority also attempts to distinguish Steve on the basis that in this case there was evidence on which the jury could have found that the defendant was an accessory. This is simply incorrect. In this case, there was no evidence, as the state conceded at trial, of accessorial liability on the part of the defendant.
In Steve, the prosecution requested an accessorial charge prior to closing arguments. In this case, only after the jury sent a note to the trial court, raising the question of accessorial liability, did the court instruct the jury on this issue. Notwithstanding the majority’s intimation to the contrary, the record clearly indicates that the instruction on accessorial liability was given after the jury began its deliberations, and the state concedes this in its brief The trial court completed its charge to the jury at 12:48 p.m. and suggested that the jury go to lunch. Specifically, the trial court stated that: “Your first duty when you go into the jury room will be to select a foreperson from among you and then, after all of the exhibits are delivered to you, you may start your deliberations. . . . I’m going to excuse you now. My suggestion to you is, in view of the lateness — if you wish to select your foreman before you go to lunch,
Because the judge had a commitment and would not return until between 3 and 3:30 p.m., and after having been instructed in the aforementioned manner, it is clear that the jury began deliberating before 3:57 p.m., the time at which they were brought back into the courtroom. This conclusion, which the majority does not directly contradict, is based on several facts. First, defense counsel expressed concern because the trial court would not entertain his exceptions to the charge until the judge returned after 3 p.m., and after the jury began its deliberations.
The conclusion that the jury began deliberating before the trial court instructed it on accessorial liability is buttressed by several other revealing facts contained in the transcripts. Before the jury returned to the courtroom at 3:57 p.m., the trial court had a short colloquy with the attorneys regarding the jury questions it had been presented with by the sheriff. After the questions were read into the record, the trial court stated that “if they want to keep deliberating, I don’t have any problem. We’ll just tell them that we can’t give them an answer right now.” The assistant state’s attorney indicated that he did not want the jury to continue deliberating without the jury’s questions first being answered by the court. After the jury returned to the courtroom, the trial court excused the jurors for the day and indicated that the court would answer their questions in the morning. In doing so, it was clearly indicated by the jury that it had been deliberating.
Unlike in Steve, we know that the jury’s verdict was not unanimous in the present case. See State v. Steve, supra, 208 Conn. 47 (jury not polled, but concluding that trial court’s improper instruction on accessorial liability “more likely than not affected the result”). Here, the trial court polled the jury and exposed the fact that ten jurors had found the defendant guilty as a principal on the capital felony and robbery in the first degree counts, and two jurors had found him guilty as an accessory on those counts.
Finally, the defendant was misled by the state because the state advised the trial court and defense counsel, after the presentation of its case-in-chief, that it would not seek a charge on accessorial liability unless the defendant suggested, by way of evidence or argument to the jury, that he was was not a principal, but an accessory.
I find that not only is this case on all fours with Steve, but it presents additional facts, all of which are undisputed, that make it more compelling. In my view, the accessorial liability instruction deprived the defendant of a fair trial and due process of law. See State v. Franko, 199 Conn. 481, 491-92, 508 A.2d 22 (1986) (“[d]ue process requires that a criminal defendant be
Accordingly, I dissent.
The defendant was also charged with and found guilty of two counts of murder. The jury was not polled on the murder counts because murder is a lesser included offense of the crime of capital felony.
The defendant also raises the issue of whether such a nonunanimous jury verdict passes state constitutional muster. I leave that issue for another day.
General Statutes § 53a-8 provides in pertinent part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct, and may be prosecuted and punished as if he were the principal offender. . . .”
General Statutes § 53a-48 provides in pertinent part: “Conspiracy. . . . (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. ...”
In addition, count two of the substitute information provides in pertinent part: “Said State’s Attorney further accuses Jesus Alberto Correa of the crime of conspiracy to commit murder, in violation of Connecticut General Statutes Sections 53a-48 [conspiracy] and 53a-54a [murder], and charges that, at an unknown place, on or around November 15, 1990, Correa agreed with another person, who is believed to use the street name, ‘Yo-Yo,’ to intentionally cause the death of two persons . . . and that Correa committed an overt act in furtherance of said conspiracy, that is, he obtained a handgun and went to Adelaide Street, Hartford, CT, on November 15, 1990, to commit said murders.”
Also, count eight provides: “Said State’s Attorney further accuses Jesus Alberto Correa of the crime of conspiracy to commit robbery in the first degree, in violation of Connecticut General Statutes Sections 53a-133, 53a-134 (a) (1) (2), and 53a-48, and charges that, at an unknown place, on or around November 15, 1990, Correa agreed with another person, who is believed to use the street name, ‘Yo-Yo,’ to commit the crime of robbery in the first degree . . . and that Correa committed an overt act in furtherance of said conspiracy, that is, he obtained a handgun and went to Adelaide Street, Hartford, CT, on November 15, 1990, to commit said crime.”
The majority also relies on the fact that the felony murder charges in counts six and seven of the substitute information allege that the defendant, or another participant, caused the deaths of the two victims. The defendant does not raise the issue of notice of accessorial liability with respect to counts six and seven, but, rather, he argues that he was not given notice of his potential culpability as an accessory under the capital felony charge (count three), the murder charges (counts four and live), and the robbery in the first degree charge (count nine).
“The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his
See footnote 9 of this opinion.
The majority relies on the vague testimony of an eyewitness in the state’s case-in-chief that, after she heard gunshots, she saw someone, who did not look unlike the defendant, run from the victim’s automobile carrying a box and enter the passenger side of the getaway vehicle. The majority states that this testimony demonstrates that the state attempted to prove that the defendant was either the principal or an accessary. This assertion, however, is inconsistent with the admission by the assistant state’s attorney at trial and the theory on which the state tried its case.
After the state completed its case-in-chief, the assistant state’s attorney started to mention the possible issue of accessorial liability, and the trial court quickly responded by asking him, “[d]o we have some evidence here of accessorial liability?” The assistant state’s attorney responded: “I don’t think so but . . . there’s a possibility that defense counsel could either
The state, in its closing argument, argued to the jury that the defendant was the shooter/robber and reminded the jury “that you do not need to know the identity of any accomplice or any coconspirator in order to find the defendant guilty of the crimes charged that involve an accomplice or coconspirator.” Indeed, the state presented testimony that the defendant, shortly after the time that the shootings occurred, arrived at his girlfriend’s apartment carrying a box, with blood on his pants. The state also offered forensic evidence and testimony that the shirt worn by the defendant at that time contained residue from gunshots fired at close range.
The following colloquy occurred after the judge excused the jury and advised counsel that he would not return until approximately between 3 and 3:30 p.m.:
“Mr. Gold [Defense Counsel]: . . . My concern is that the jury will be deliberating for a period of time and we have a number of exceptions to be made and I don’t want to waive — I’m prepared to do it—
“The Court: You are not waiving anything. All right? If the jury comes back before you get your exceptions in, I guess we’re stuck with that and I don’t expect that to happen.
“Mr. Massameno [Assistant State’s Attorney]: Well, I don’t expect it either but I presume that Your Honor would consider any exceptions to the charge before receiving a verdict.
“The Court: Absolutely. But I mean, if they say they’ve come to a verdict and I haven’t done it yet, I suppose we’ll have to face that at the time but well face that.”
The first question from the jury, written by the foreperson of the jury at 2:20 p.m., asking whether it could begin deliberating, was obviously moot by the time the jury was brought back into the courtroom at 3:57 p.m. The second question from the jury, written by the foreperson at 3:25 p.m., was with respect to whether it could consider accessorial liability on certain charges.
After the jury returned to the courtroom, one juror asked the court whether the juiy would be allowed to continue deliberating without having its questions answered. The following colloquy occurred:
“The Court: [Sjomebody have a question? Is there a problem at coming in at 10 o’clock?
“Juror: No, I was just — we shouldn’t continue if we — I mean, if we feel that we want to continue without having those questions ....
“The Court: Without the questions being answered at this time? Do you want to?
“Juror: I don’t know. We have to discuss it but is that an option?
“The Court: Well, if you’d like to. If you’d like to but I don’t — you know, I’d just as soon you not — I’d like to answer your questions first. I think perhaps you might be going down the wrong road if I don’t answer them first. So, do you agree with that? Okay. ... So then I’ll excuse you at this time . . . .”
See footnote 9 of this opinion.
