260 Conn. 339 | Conn. | 2002
Opinion
The defendant, Geoffrey K. Ferguson, following a jury trial, was convicted of five counts of murder in violation of General Statutes § 53a-54a (a),
The jury reasonably could have found the following facts. The defendant owned property at 166 Portland Avenue in the Georgetown section of Redding, Connecticut. Located on this property was a single-family residence that the defendant had enlarged and converted into three apartments. The first floor of the building consisted of two apartments with the entirety of the second floor serving as the third apartment. A two-story glass atrium was attached to one side of the building and a spiral stairway inside the atrium provided access to the apartment from the ground. In April, 1995, the second floor apartment was occupied by Scott Auerbach, David Froehlich and Jason Trusewicz. Laureen Spear and her five year old son lived in the front first floor apartment, and the rear first floor apartment was occupied by Freddi Altamirano, an immigrant from Costa Rica. Altamirano lived with three other men in this apartment. The defendant served as the tenants’ landlord, but he resided in Powell’s Point, North Carolina.
In March, 1995, the upstairs tenants were late paying their rent to the defendant. The defendant asked a friend, Christopher Given, to attempt to collect the rent from the upstairs tenants. The tenants told Given that the rent would be forthcoming and Given relayed this information to the defendant. The defendant was dissatisfied with this arrangement and shortly thereafter informed Given that the defendant was going to evict these tenants.
Later that day, the tenants returned to their apartment. They called the police and reported that they had been locked out of the apartment. The police conducted an investigation to determine whether the defendant had lawfully evicted the tenants. The police concluded that the tenants had the right to reenter the apartment because the defendant had not properly evicted the tenants. After receiving this information from the police, the tenants reentered the apartment by pulling off the plywood barrier.
As a result of the lockout, two of the tenants instituted small claims actions against the defendant. Redding officials also notified the defendant of several possible building code violations. The defendant was also ordered to appear before the Redding conseivation commission on April 18, 1995, to respond to an alleged environmental violation on the property. The Redding fire marshal also informed the defendant of several possible fire code violations at the building. Finally, on April 17, 1995, a member of the Redding police department applied for an arrest warrant charging the defendant with criminal lock out.
That same day, the defendant rented a champagne colored Ford Tempo from U-Save Auto Rental in Harbinger, North Carolina. The defendant told the rental agent that he would be using the car to visit his wife
The defendant left the rental agency at approximately 4:15 p.m. on April 17, and traveled north to Connecticut. At approximately 12:20 p.m. the next day, Spear left her first floor apartment and walked to the end of the driveway to get her mail. From the end of the driveway, Spear spotted the defendant driving the rental car. When Spear saw the defendant, he was tinning the car into a synagogue parking lot that abutted his property. At the last moment, however, the defendant returned to his lane of travel and proceeded straight along the road. As the car drove past her, the defendant turned his head away from her so that Spear was able to see only the back of his head and his grey ponytail. Spear also noted a North Carolina license plate on the rear of the car. Later that afternoon, the defendant parked the rental car in the synagogue parking lot. The car was parked with the tailgate against a wall that separated the synagogue from the defendant’s property, effectively hiding from view the car’s North Carolina license plate.
Around 4 p.m., Altamirano was in his apartment watching television. The screen went blank. Altamirano adjusted the cable box, but he could not correct the problem because the defendant had cut the cable and telephone lines to the building. At several points and through various windows of his apartment, Altamirano observed the defendant walking outside the building. Altamirano had a clear view of the defendant. At one point, as Altamirano watched through a window in his bathroom, he saw the defendant from a distance of only a few feet as the defendant bent down at an oil tank pipe coming out of the ground at the base of the building. Altamirano knew who the defendant was because they had met on two prior occasions: first, when Altamirano had placed a deposit on the apartment, and second, as noted previously, when Altamirano helped the defen
The defendant entered the second floor apartment through the sliding glass door. Once inside the apartment, the defendant shot Froehlich and David Gartrefl. Froehlich was shot twice and Gartrell was shot three times. All gunshots were to the head. Altamirano heard the gunshots, as did two neighbors. The defendant then placed both bodies in the bathroom, laying Gartrefl’s body on top of Froehlich’s.
Auerbach, Tmsewicz and Sean Hiltunen all worked in Stamford. They left work on April 18, 1995, at some point between 5 p.m. and 5:15 p.m. The travel time between their office in Stamford and the apartment in Redding was approximately thirty-five minutes. The three men entered the apartment and the defendant shot each one. Hiltunen was shot twice, once in the head and once in the neck. Trusewicz was shot once in the head. Auerbach was shot twice in the head.
The defendant poured an accelerant on four of the bodies and set them ablaze. The defendant also used an accelerant to set fires in various areas of the basement and second floor apartment. Neighbors found the fifth victim hanging from the spiral staircase in the glass atrium. He was pulled, still alive, from the burning building, although he later died at the hospital. Each of the victims died as a result of gunshot wounds to the head. The shots were fired from a .22 caliber semiautomatic pistol owned by the defendant. The gun, however, was never recovered.
After killing the victims and setting fire to their bodies and the building, the defendant left the scene and drove
The defendant makes six claims on appeal. He contends that the trial court improperly: (1) precluded the cross-examination of a prosecution witness in violation of the defendant’s right to confront a witness pursuant to both the sixth amendment
I
CROSS-EXAMINATION AND RIGHT TO PRESENT A DEFENSE
The defendant contends that the trial court improperly denied him his right to cross-examine a witness for the state, and his right to present a defense by excluding photographic evidence.
Altamirano gave a statement to the police the day after the crime. In the statement, Altamirano identified the defendant as the person he had seen walking outside the building on the day of the murders. He said he knew it was the defendant because he had met him before. As noted previously, the defendant was Altamirano’s landlord.
On August 7, 1996, the police again met with Altamirano and they asked him to describe what the defendant had been wearing on the day of the murders. Altamirano
After showing Altamirano the Mobil photograph, the police asked him if the individual in the photograph was wearing clothing similar to the defendant on the date of the murders. In a statement given to the police (1996 statement), Altamirano agreed that there were similarities, but indicated that he could not say for certain that the individual in the photograph was the defendant because the picture was poor in quality and the individual was pictured from the side.
During the trial, the defendant attempted at several points to have the Mobil photograph admitted into evidence. The defendant first tried to introduce the Mobil photograph through his cross-examination of Altamirano and, thereafter, upon recalling Altamirano during the defendant’s case-in-chief. The state objected to the photograph’s admission on relevancy grounds. The trial court permitted the defendant to make several offers of proof concerning the photograph. The defendant based his argument for admissibility of the Mobil photograph on essentially three grounds. First, the defendant claimed that Altamirano, by viewing the photograph, was able to make an enhanced identification of the defendant. This additional detail, the defendant claimed, was inconsistent with Altamirano’s earlier identification of the defendant and he had a right to explore this inconsistency on cross-examination of Altamirano by introducing the photograph. Second, because he was an illegal alien, Altamirano had an interest in testifying in a manner favorable to the state. Altamirano, therefore, was likely to acquiesce to any of the state’s requests concerning the identification and the defendant sought to use the Mobil photograph to cross-examine Altamirano with respect to his interest and bias as a witness for the state. Third, the Mobil photograph would be used to establish a third party culpability defense. The state contends that the trial
“Our analysis of the defendant’s claim begins with the axiom that the defendant is entitled to confront and cross-examine fairly and fully the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Pratt, 235 Conn. 595, 603-604, 669 A.2d 562 (1995). “In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). “Impeachment of a witness for motive, bias and interest may also be accomplished by the introduction of extrinsic evidence. . . . The same rule that applies to the right to cross-examine applies with respect to extrinsic evidence to show motive, bias and interest . . . (Citations omitted.) State v. Colton, 227 Conn. 231, 249, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert.
“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995). Furthermore, “[t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” (Internal quotation marks omitted.) State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985). “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Internal quotation marks omitted.) State v. Barnes, supra, 747. “When the trial court excludes defense evidence that provides the defendant with a basis for cross-examination of the state’s witnesses, however, such exclusion may give rise to a claim of denial of the right to confrontation and to present a defense.” State v. Casanova, 255 Conn. 581, 592, 767 A.2d 1189 (2001). With these principles in mind, we turn to the defendant’s contentions.
We first examine whether exclusion of the Mobil photograph impermissibly interfered with the defendant’s right of confrontation. We do so, mindful of the trial court’s “duty ... to exclude irrelevant evidence. . . . The 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.” (Citations omitted; internal quotation marks omitted.) State v. Pratt, supra, 235 Conn. 604-605. After careful review of the record, we conclude that the defendant’s right of confrontation was not violated
As noted, the defendant first argued for admission of the Mobil photograph on the basis that it would assist him in revealing an inconsistency with Altamirano’s testimony on direct examination. Like the trial court, we are unconvinced that the Mobil photograph revealed any inconsistencies with Altamirano’s testimony on direct examination.
We also conclude that exclusion of the photograph did not interfere with the defendant’s attempt to cross-examine Altamirano concerning interest and bias. The theme of the defendant’s cross-examination on this issue is that because of Altamirano’s status as an illegal immigrant, he was beholden to the state and would testify to whatever the state asked of him. When determining whether cross-examination was improperly restricted, a reviewing court should examine the entire cross-examination. State v. Valentine, 240 Conn. 395, 407, 692 A.2d 727 (1997). The defendant had ample opportunity to examine Altamirano’s potential bias and interest as a witness. Specifically, the jury learned that Altamirano was an illegal alien who came to the United
We conclude, further, that the defendant’s right of confrontation was not violated when the trial court refused to admit the Mobil photograph during the defendant’s examination of Altamirano in its case-in-chief. Although a party may impeach his own witness; State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986); the trial court must still ascertain whether the evidence sought to be used to impeach the witness is relevant. Our careful review of the record indicates that the defendant failed to establish how the Mobil photograph was relevant. The important point to recall with reference to the Mobil photograph is that when he met with police in August, 1996, Altamirano never identified the individual in the photograph as being the defendant. In fact, he articulated his inability, based on the photograph’s poor quality and the side angle view of the subject, to state that this person was the defendant. Obviously, if Altamirano had identified the man in the Mobil photograph as being the defendant, then it would have been a proper line of inquiry to challenge Altamirano’s ability to differentiate between the defendant and a photograph of a person that all parties agreed was not the defendant. This, however, was not the case. We also conclude that presentation of the Mobil photograph to the jury likely would have led to confusion.
The defendant also contends that the trial court improperly interfered with his constitutional right to present a defense when it excluded the Mobil photograph. On appeal, the defendant argues that he sought to use the Mobil photograph to present a defense of third party culpability. For the reasons that follow, we conclude that it was not an abuse of discretion for the trial court to preclude the defendant from using the photograph for this purpose.
“Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.” (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000).
We first note that, with regard to the Mobil photograph, the defendant attempts to present a third party culpability defense on appeal that it largely disavowed during the trial. In an offer of proof regarding the Mobil photograph, the defendant’s attorney stated: “What we’re trying to establish here is that—not that [the Mobil person] committed the crime because this is probably
Without more, the Mobil photograph is insufficient evidence upon which to base a third party defense. In essence, this is a blurry photograph, taken around the time of the fire, of an unknown third party. If the defendant seriously sought to utilize this defense strategy through use of the Mobil photograph, then he should have adduced other evidence to be used for this purpose. The defendant presented no other evidence, however, linking the individual at the Mobil station to the crime scene. “Ordinarily, evidence concerning a third party’s involvement is not admissible until there is some evidence which directly connects that third party with the crime. . . . Unless that direct connection exists it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.” (Citation omitted; internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 549-50, 613 A.2d 770 (1992). The trial court properly determined that the photograph, standing alone, was insufficient to constitute a basis for the defense of third party culpability.
For the foregoing reasons, we conclude that the defendant’s right of confrontation and right to present a defense were not violated by the trial court’s exclusion of the Mobil photograph.
II
ADMISSION OF THE DEFENDANT’S PRIOR THREATS
The defendant contends that the trial court improperly admitted testimony from two of his former tenants
In 1991, Richard Barry Marshall was a tenant of the defendant. At one point, after Marshall had been late paying the rent, the defendant came to the apartment and demanded payment. Marshall told the defendant that he had certain rights as a tenant, including the right to make payment up until the tenth of each month. Marshall also told the defendant that if the defendant locked him out of the apartment, Marshall had the right to reenter it. According to Marshall, the defendant responded, “ ‘Well, if you move back in, Til break your fucking legs.’ ” Marshall then left Redding for a few days and came back to the apartment to find that his belongings had been removed to the porch area. The defendant also had changed the locks. When Marshall informed the defendant that he was going to call the police for assistance in gaining reentry, the defendant told him, “ ‘Call the cops. I’ll get my gun and go out in a blaze of glory.’ ” Marshall never reentered the apartment.
In 1993, Troy Harvey was a tenant of the defendant. In July of that year, Harvey was late paying rent. He received a call from the defendant demanding payment by the next day. The defendant also told Harvey that if payment were not made, the defendant would remove all of Harvey’s belongings and board up the house. Harvey told the defendant that he had certain rights as a tenant and that if the defendant carried out his threat to evict Harvey from the apartment, he would ask the
As this is a claim of an evidentiary error, the trial court’s ruling will be reversed only upon a showing of clear abuse of the court’s discretion. See, e.g., State v. Matos, 240 Conn. 743, 764, 694 A.2d 775 (1997). Furthermore, in the case of evidentiary error, the defendant bears the burden of proving harm. See, e.g., State v. Torres, 210 Conn. 631, 642, 556 A.2d 1013 (1989). “The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Payne, 219 Conn. 93, 102-103, 591 A.2d 1246 (1991). We conclude that the trial court properly admitted the defendant’s statements because they constitute admissions and, therefore, they constitute an exception to the rule against hearsay. Further, as admissions, the defendant’s threats to physically harm his prior tenants if they asserted their rights are relevant to the defendant’s motive to commit the crimes in the present case.
It is an “elementary rule of evidence that an admission of a party may be entered into evidence as an exception to the hearsay rule.” Fico v. Liquor Control Commission, 168 Conn. 74, 77, 358 A.2d 353 (1975); Conn. Code Evid. § 8-3 (1). In the criminal context, an admission “is the avowal or acknowledgment of a fact or of circumstances from which guilt may be inferred, and only tending to prove the offense charged, but not amounting to a confession of guilt.” (Emphasis in original; internal quotation marks omitted.) State v. Stepney, 191 Conn. 233, 250, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). “[Statements made out of court by a party-
In State v. Woodson, supra, 227 Conn. 15-16, we concluded that a defendant’s earlier threat qualified as an admission, even when the prior threat concerned a different event than the crime for which the defendant is being prosecuted, so long as the threat was relevant to an issue in the case. In Woodson, the defendant was charged with arson and insurance fraud and the trial court permitted the state to introduce a threat by the defendant on an earlier occasion, to bum a different property. Id., 13. We concluded that the trial court had not abused its discretion in allowing the state to introduce evidence of this threat as an admission. Id., 15. Even though the threat, in the context in which it was made, was not an admission to the specific crime of which the defendant was being tried, the threat, nevertheless, was relevant because it served to establish the defendant’s state of mind at the time he was alleged to have committed the crimes for which he was being tried. Id., 16.
In the present case, the defendant’s prior threats to Marshall and Harvey are admissions because they constitute facts that, if accepted by the jury, are relevant to the defendant’s state of mind at the time he was alleged to have committed murder. Whereas Marshall and Harvey heard the threats and took no action against the defendant, the victims in this case challenged the defendant by reentering the apartment and by instituting legal proceedings against him. The defendant, there
Relevant evidence is excluded, however, when its probative value is outweighed by the danger of unfair prejudice. State v. Rinaldi, 220 Conn. 345, 356, 599 A.2d 1 (1991); Conn. Code Evid. § 4-3. “[T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court judge and is subject to reversal only where an abuse of discretion is manifest or injustice appears to have been done.” (Internal quotation marks omitted.) State v. Rinaldi, supra, 355. Of course, “[a]ll evidence is adverse to some party and thus prejudicial to that party’s case, but . . . [evidence] damaging to one’s case is inadmissible only if it creates ‘undue’ prejudice so that it threatens an injustice were it to be admitted.” C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.8, pp. 208-209.
We have established that there are four situations wherein the potential for prejudice suggests the exclusion of otherwise relevant evidence. “These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and
Ill
DOUBLE JEOPARDY
The defendant contends that his double jeopardy rights were violated by virtue of his conviction of two separate counts of capital felony. We disagree.
The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy.
“The double jeopardy analysis in the context of a single trial is a two part process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 67, 644 A.2d 887 (1994). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); Garrett v. United States, 471 U.S. 773, 793, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); State v. Greco, 216 Conn. 282, 290, 579 A.2d 84 (1990). “[T]he role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Greco, supra, 290. On appeal, the defendant “bears the burden of proving that the prosecutions are for the same offense in law and fact.” (Internal quotation marks omitted.) State v. Kulmac, supra, 67.
Section 53a-54b (8) provides that a person is guilty of capital felony when convicted of the “murder of two or more persons at the same time or in the course of a single transaction . . . .’’If the defendant committed two independent sets of multiple murders, with the
We specifically noted, in Gibbs, the two means by which multiple murders could be prosecuted as a capital felony: first, if the murders took place at the same time, and second, if the murders took place in the course of a single transaction. General Statutes § 53a-54b (8); State v. Gibbs, supra, 254 Conn. 601. In analyzing the language of § 53a-54b (8), we stated in Gibbs that neither statutory mandate for the commission of a capital felony should be interpreted in such a way so that the other statutory provision is deemed superfluous. State v. Gibbs, supra, 602. The defendant asks us essentially to ignore the other statutory provision by which a person can commit a capital felony: that the murders took place at the same time. In the present case, the evidence established that the defendant committed two separate sets of multiple murders: first killing Froelich and Gartrell between 4 p.m. and 4:30 p.m., and later killing Auerbach, Trusewicz and Hiltunen when they returned from work, no earlier than 5:35 p.m.
While double jeopardy prohibits multiple punishments for the same offense, “distinct repetitions of a prohibited act, however closely they may follow each other . . . may be punished as separate crimes without offending the double jeopardy clause. . . . The same transaction, in other words, may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense. . . . [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such
IV
DENIAL OF A FRANKS HEARING
The defendant next argues that the trial court improperly denied his request to hold a hearing, pursuant to Franks v. Delaware, supra, 438 U.S. 154, because an affidavit in support of a warrant to search the defendant’s home and truck in North Carolina, as well as his person, contained three material misstatements and one material omission. The defendant contends that the case should be remanded for a Franks hearing. We disagree and conclude that the trial court properly denied the defendant’s request for a Franks hearing.
“In order for a defendant to challenge the truthfulness of an affidavit underlying a warrant at a Franks hearing, he must: (1) make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit; and (2) show that the allegedly false statement is necessary to a finding of probable cause. ... If the allegedly false statement is set aside, however, and there remains sufficient evidence to establish probable cause, a Franks hearing is not necessary. . . . Although the Franks decision referred only to false statements in the affidavit, we have held that material omissions from such an affidavit also fall within the rule . . . .” (Citations omitted; internal quotation marks omitted.) State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990). As the Supreme Court noted in Franks, “[t]here is, of course, a presumption
In the present appeal, the defendant claims that the affidavit supporting the warrant to search his North Carolina home and Toyota truck, as well as his person, contained three material misstatements and one material omission. The alleged misstatements are: (1) the affiant, Sergeant Graham L. Keaton, of the sheriffs office in Currituck County, North Carolina, misstated that, shortly after midnight on “4-18-95,” he had received a message from Connecticut state police concerning a request to locate the defendant at his residence in North Carolina. Because the crime occurred during the afternoon of April 18, 1995, Keaton could not have received a message concerning the crime before it had occurred; (2) Keaton misstated that the crime had occurred in Southbuiy, and not in Redding; and (3) Keaton misstated that the defendant had been seen at the crime scene “at the time the building burned . . . .” Finally, the defendant claims that Keaton omitted from his affidavit that Altamirano was an illegal alien. We address each of these claims in turn.
Keaton’s reference to receiving a message from Connecticut state police shortly after midnight on April 18, 1995, is obviously a scrivener’s error. Later in the affidavit, Keaton correctly reported that the building had burned “on 04-18-95 at 1800 hours . . . .” Common sense dictates that Keaton had intended to indicate that the message he had received from the Connecticut state police had been received by him shortly after midnight on April 19, 1995, not April 18, 1995. See State v. Rosario, 238 Conn. 380, 386-87, 680 A.2d 237 (1996) (obvious scrivener’s error does not undermine magistrate’s con
Neither does the fact that Keaton had misstated that the crime had occurred in Southbury, and not in Red-ding, serve to invoke the requirement that a Franks hearing should have been held. The trial court took judicial notice that Troop A of the Connecticut state police is located in Southbury and that the message received by the sheriffs office in North Carolina had emanated from Troop A in Southbury. Keaton’s averment that the crime had occurred in Southbury was a result of the fact that the message had been received from that town. Whether the crime occurred in South-bury or in Redding had no bearing on the North Carolina magistrate’s finding of probable cause.
We acknowledge, as did the trial court, that the third alleged misstatement, namely, that the defendant had been seen by witnesses “at the time the building burned,” might be considered false.
Finally, the defendant claims that Keaton omitted reference to the fact that Altamirano was an illegal alien. The defendant claims that if this fact had been disclosed to the North Carolina magistrate, probable cause would not have been found because Altamirano would have been deemed to be unreliable. We disagree. We cannot reasonably conclude that status as an illegal alien, standing alone, would have had any bearing on whether probable cause existed to authorize the search warrant. We conclude that the trial court properly denied the defendant’s request for a Franks hearing.
V
JURY ARRAY CHALLENGE
The defendant also contends that the trial court improperly denied his constitutional challenge to the
In State v. Gibbs, supra, 254 Conn. 593, 597, a case also involving a claim of Hispanic underrepresentation in a jury array, we rejected the defendant’s challenge that the jury array procedures violated his right to a fair cross section and his right to equal protection. We also rejected the defendant’s equal protection challenge to the English proficiency requirement contained in § 51-217 (a) (3). Id., 600. We will not revisit the same issues we so recently have decided.
VI
JURY INSTRUCTIONS ON REASONABLE DOUBT
The defendant’s final claim is that the trial court’s instruction on reasonable doubt was improper. Specifically, the defendant challenges the following portions of the trial court’s instruction on the meaning of reasonable doubt: (1) “[a] reasonable doubt is a doubt for which, in your own mind, you can assign to yourself, a valid reason”; (2) “[a reasonable doubt] in other words, is a real doubt. It is an honest doubt”; (3) “[a reasonable doubt] is such a doubt that as in the serious affairs of every day life you would pay heed to”; and (4) “[proof beyond a reasonable doubt] leaves you firmly convinced of the defendant’s guilt.”
“We consistently have held that the definition of reasonable doubt as ‘a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence,’ as ‘a doubt for which a valid reason can be assigned,’ and as a ‘doubt which in the serious affairs which concern you in every day life you would pay heed and attention to’ does not dilute the state’s burden of proof when such definitions are viewed in the context of an entire charge. See, e.g., [id.], 248; State v. Morant, 242 Conn. 666, 688, 701 A.2d 1 (1997); State v. Kelley, 229 Conn. 557, 567-68, 643 A.2d 854 (1994); State v. Smith, 210 Conn. 132, 147-50, 554 A.2d 713 (1989).” State v. Whipper, 258 Conn. 229, 297, 780 A.2d 53 (2001). In addition, our Appellate Court recently has concluded that an instruction that proof beyond a reasonable doubt means that the jury must be “firmly convinced” that the defendant is guilty of the crime charged does not dilute the state’s burden of proof when taken in conjunction with the entirety of the court’s instructions. State v. Nunes, 58 Conn. App. 296, 309, 752 A. 2d 93, cert. denied, 254 Conn. 944, 762 A.2d 906 (2000). We conclude that the defendant here has offered no compelling reason for us to reconsider these cases. Moreover, we see no reasonable possibility that the challenged language, when read in the context of the entire charge regarding reasonable doubt, misled the jury in its understanding of the state’s burden of proving the defendant’s guilt beyond a reasonable doubt.
The judgment is affirmed.
In this opinion the other justices concurred.
General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (8) murder of two or more persons at the same time or in the course of a single transaction . . . .”
General Statutes § 53a-111 (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied . . . .”
General Statutes § 53a-112 (a) provides in relevant part: “A person is guilty of arson in the second degree when, with intent to destroy or damage a building, as defined in section 53a-100, (1) he starts a fire or causes an explosion and . . . (B) such fire or explosion was intended to conceal some other criminal act . . . .”
The state did not seek the death penalty because, it asserted, it could not establish an aggravating factor. See General Statutes § 53a-46a.
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor
Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him; [and] to have compulsory process to obtain witnesses in his behalf
The defendant invoked both the federal constitution and the constitution of Connecticut. “[H]e [however] has proffered no argument that the rights afforded to him by the federal and the state constitutions are in any way distinguishable with respect to the substantive issue that he has raised. We see no reason, on the facts of this case, independently to undertake such an analysis.” (Internal quotation marks omitted.) State v. Birch, 219 Conn. 743, 746 n.4, 594 A.2d 972 (1991).
Altamirano described the individual in the photograph as follows: “I noticed the individual was wearing a dark colored baseball hat similar to the one that [the defendant] was wearing on 04-18-95, the date of the Are. I also noticed the individual wearing a long sleeved, dark colored T-shirt. This shirt was similar in style and type as the shirt that [the defendant] was wearing when I saw him on the day of the fire. This individual was also wearing dark colored jeans similar to the dark colored jeans that [the defendant] was wearing on 04-18-95. I also noticed that the individual in the photograph was wearing light colored work boots. I cannot be sure that these were the same or similar [footwear] that [the defendant] was wearing on 04-18-95, because I did not take notice of the type of [footwear] he was wearing on 04-18-95.1 noticed that the individual in the photograph did have his hair tied back in a ponytail similar to the hair style that [the defendant] had the day I saw him on 04-18-95.1 also noticed that the individual in the photograph has his shirt tucked into his pants in a similar fashion to [how] I recall [the defendant] was wearing his shirt on the day I saw him on 04-18-95. Through my observation of this photograph I cannot say for certain
If the defendant sought to impeach Altamirano by introducing a prior inconsistent statement, then he should have moved for admission of his 1996 statement, which was given to police after he had viewed the Mobil photograph. The defendant, however, sought to have only the photograph admitted, not the 1996 statement.
We agree with the trial court’s statement in its oral ruling excluding the Mobil photograph: “[All] it’s going to do is raise speculation on the part of the jury. It will not, [be] of any benefit in impeaching the testimony of [Altamirano] since he refused to identify or did not identify rather, the pictures of a person who was not the defendant, as the defendant.”
At trial, both the state and the defendant addressed the issue of the defendant’s prior threats as an issue of uncharged misconduct. The trial court, without determining whether the threats constituted uncharged misconduct, admitted the testimony because it deemed the threats to be admissions. For the reasons set forth hereafter, we agree with the trial court.
Although the Connecticut constitution contains no specific double jeopardy provision, the due process and personal liberty guarantees of article first, §§ 8 and 9, of the Connecticut constitution include protection against double jeopardy. State v. Kasprzyk, 255 Conn. 186, 192, 763 A.2d 655 (2001).
Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
The defendant makes the further general claim that, even if the date had been corrected to mean shortly after midnight on April 19, 1995, the affidavit was nevertheless defective because some of the information contained in it was not known by Connecticut police until later in the morning on April 19,1995, after they interviewed Altamirano. We agree with the trial court that some of the information contained in the affidavit was based on continuing communications between Connecticut and North Carolina police after the initial midnight message on April 19,1995. “In determining whether the warrant was based upon probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom.” (Emphasis added; internal quotation marks omitted.) State v. Mordowanec, 259 Conn. 94, 110, 788 A.2d 48 (2002). When the search warrant was signed by the North Carolina magistrate at 11:30 a.m. on April 19,1995, the affidavit contained truthful information concerning the ongoing criminal investigation.
As noted previously, Spear saw the defendant driving on Portland Avenue around 12:30 p.m., and Altamirano saw the defendant outside the building around 4 p.m.
The test for discerning the existence of probable cause is well settled. “In determining the existence of probable cause to search, the magistrate should make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . . In making this determination [of probable cause], the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reason
General Statutes (Rev. to 1997) § 51-217, as amended by No. 97-200, § 3, of the 1997 Public Acts, provides in relevant part: “(a) All jurors shall be electors, or citizens of the United States who axe residents of this state having a permanent place of abode in this state and appear on the list compiled by the Jury Administrator under subsection (b) of section 51-222a . . . who have reached the age of eighteen. A person shall be disqualified to serve as a juror if such person ... (3) is not able to speak and understand the English language . . . .”
“The doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 196, 676 A.2d 831 (1996). Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that
We realize that our decision in Gibbs was based on the jury selection system in effect in 1995; State v. Gibbs, supra, 254 Conn. 586 n.10; and that the procedures in effect at the time of the defendant’s trial in the present case were based on General Statutes (Rev. to 1997) § 51-222a, as amended by No. 97-200, § 6, of the 1997 Public Acts, which became effective October 1, 1997. This discrepancy does not undermine the continued validity of our decision on this issue in Gibbs. Under Gibbs, the source list of potential jurors was comprised of licensed motor vehicle operators and registered voters. State v. Gibbs, supra, 586. Under the scheme in effect at the time of the defendant’s trial here, the source list included both of these groups as well as “residents subject to taxation on personal income under chapter 229 and recipients of unemployment compensation under chapter 567.” Public Act 97-200, § 6 (b). The procedures in effect at the time of the defendant’s trial, therefore, arguably produced a greater pool of potential jurors than was in effect for our decision in Gibbs. The potential, therefore, for underrepresentation of Hispanics in the defendant’s jury array was lower than the procedures that we found to be constitutional in Gibbs.
The defendant alleges that the trial court unfairly prevented him from making a record by which he could challenge the jury array procedures when it denied his request to have potential jurors indicate their race and
The trial court instructed the jury regarding reasonable doubt as follows: “Now, this phrase ‘reasonable doubt’ that I’ve used has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word ‘reasonable.’
“A reasonable doubt is a doubt for which, in your own mind, you can assign to yourself a valid reason. It is a doubt which is something more than a guess or a surmise. It is not a conjecture or a fanciful or captious doubt. A reasonable doubt is not a doubt raised by someone for the sake of raising doubts, nor is it a doubt suggested by the ingenuity of a fellow juror which is not warranted by the evidence or lack of evidence.
“A reasonable doubt, in other words, is a real doubt. It is an honest doubt. It is a doubt which has its foundation in the evidence or lack of evidence.
“Now, on the other hand, absolute certainty, of course, in the affairs of life is almost never attainable and the law doesn’t require absolute certainty on the party of a jury before it returns a verdict of guilty.
“I charge you that there is no obligation on the part of the state to establish the elements of the crime beyond all doubt, for that would be virtually impossible. Proof beyond a reasonable doubt does not require proof that overcomes every possible doubt. On the other hand, proof beyond a reasonable doubt leaves you firmly convinced of the defendant’s guilt.
“You must remember that a defendant is never to be convicted on mere suspicion or conjecture. So remember that the state’s obligation is to prove the defendant guilty beyond a reasonable doubt. What the law does require is if, after reviewing in your mind, all of the evidence and giving consideration to all of the testimony, if there is something in that evidence or lack of evidence which leaves in the minds of you, the jury, as reasonable men and women, a reasonable doubt of the guilt of the accused, then you must give him the benefit of that doubt and find him not guilty.
“It necessarily follows that such proof beyond a reasonable doubt must preclude every reasonable hypothesis except guilt. The proof must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. If you can, in reason, reconcile all of the facts proved with any reasonable theory consistent with the innocence of the accused, then, of course, you cannot find him guilty.”