Opinion
The defendant, Julio Morquecho, appeals from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a (a).
The jury reasonably could have found the following facts in support of its verdict. The defendant, the victim, Maria Chuica, and their two children originally lived in Ecuador before moving to Danbury. The defendant and the victim never were married. Once living in Danbury, the victim worked at two different restaurants. In January, 2005, the victim’s two brothers, Jose Chuica and Luis Chuica, moved to Danbury from Ecuador, and, in February, 2005, they moved into an apartment with the defendant, the victim and the two children.
In the spring of 2005, the victim becаme involved romantically with a coworker, Abel Quinde. Upon learning of this, the defendant became angry and stated that he wanted to kill Quinde. The victim was afraid of the defendant and sought advice from staff at a women’s center in Danbury. Specifically, the victim received advice about how safely to move out of the apartment she shared with the defendant and how to care for her children during such a transition. In May, 2005, the victim moved out of her apartment with the help of law enforcement officers and without notifying her family of her whereabouts. She was admitted to a domestic violence crisis center in Norwalk on May 19, 2005.
On June 20, 2005, the victim applied for a restraining order against the defendant, alleging an immediate threat to her physical well-being. Four days later, the victim and Quinde were present at a scheduled appointment at the women’s center. The defendant confronted them inside the women’s center, upsetting the victim. Staff members of the women’s center escorted the victim to a secured area and called the police. When the police officers arrived, the defendant lied to the police concerning his presence аnd was arrested for violating a restraining order. In a hearing that followed, the defendant pleaded guilty to violating a restraining order. The court sentenced the defendant to 364 days incarceration, execution suspended, and two years of probation.
Sometime in July, 2005, the defendant, having learned of the victim’s whereabouts, drove to a violence crisis center in Norwalk, where he approached the victim. The defendant asked the victim to reunite with him. The defendant’s presence upset the victim, and she refused to reunite with the defendant.
The victim left the crisis center in July, 2005, and lived in Danbury, but she was compelled to relocate again because the defendant learned where she was living. In September, 2005, the victim moved into a new apartment in Danbury with her children and her brothеrs. The defendant learned where she was living, and he attempted to visit her at the apartment several times when her brothers were at work. In the fall of 2005, the defendant told an acquaintance of the victim that if the victim did not forgive him and return to him, she might not be with anybody else.
On September 12, 2005, the defendant and Quinde had a physical altercation on a public street in Danbury. When the police arrived, the victim was visibly upset, crying and shaking. During the altercation, Quinde appeared to be protecting the victim. Police officers arrested the defendant, who behaved in a highly agitated manner even after their arrival. The defendant pleaded guilty to violation of a restraining order and admitted to having violated his probation. For the finding of violation of probation, the court sentenced the defendant to a ninety day period of incarceration. For the conviction of violation of a restraining order, the court imposed a 364 day suspended sentence, followed by three years of probation, with the special condition that the defendant was to have no contact with the victim.
The defendant was released from prison on April 13, 2006. Shortly thereafter, the defendant went to the victim’s apartment. He spoke to the victim’s brothers, stating that he wanted to reunite with the victim but, if she was with someone else, “it would be better just to kill [her].” The defendant had a history of harassing the victim on her commute to work, on her commute home from work and at her workplace. This conduct upset the victim. On April 18,2006, the defendant visited the victim at her workplace. He told the victim that, if she did not stop seeing Quinde, he would kill her or Quinde, or take away her children. Although the defendant’s angry words upset the victim, there was no evidence that she called the police.
The victim left work at 1 a.m. on April 20, 2006, and drove one of her coworkers home. Thе coworker noticed that the victim appeared to be upset and asked her what was wrong. The victim stated that she was fearful of the defendant. She explained that sometimes the defendant would wait for her outside her apartment when she returned from work and that, on one such occasion, he grabbed her. The victim dropped off her coworker at the coworker’s Danbury residence at 1:40 a.m., before proceeding home.
Shortly after 6 a.m., Danbury police responded to a 911 call concerning the victim. When emergency personnel arrived on the scene, they discovered the victim dead on the ground in front of her apartment building. She exhibited two major wounds to her neck, wounds that were consistent with the use of a sharp instrument, as well as several other cuts and abrasions. Also, the victim exhibited defensive type wounds on her hands.
The police interviewed the defendant, who denied any involvement in the victim’s death. This appeal followed the defendant’s conviction for murder of the victim. Additional facts will be set forth as necessary.
I
First, the defendant claims that the court improperly admitted expert testimony concerning domestic violence. We disagree.
At trial, the state presented testimony from Evan Stark, who holds a master’s degree in social work and is an expert in the field of domestic violence. Stark testified concerning his credentials and experience in the field of domestic violence. He defined the term “domestic violence”
The court permitted Stark’s testimony over the defendant’s objection. On appeal, the defendant raises a multifaceted challenge to the court’s admission of the testimony. Before turning to the specific arguments of the defendant, we set forth our standard of review. “The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor
A
First, the defendant argues that the court should have excluded Stark’s testimony on the ground that, in light of the factual findings to be made by the jury, “[t]he jury did not need the assistance of an expert to make its decision.”
“A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.” Conn. Code Evid. § 7-2.
Stark provided testimony about domestic violence and the general behavioral traits of persons in a relationship characterized by domestic violence. There is no dispute that Stark was qualified as an expert and that his testimony was based on specialized knowledge. The defendant characterizes his claim as whether Stark’s testimony was “neсessary” to resolve an ultimate issue of fact, yet our standard for the admission of expert testimony permits the admission of such testimony when such testimony “will assist the trier of fact in understanding the evidence . . . .” Conn. Code Evid. § 7-2. There was ample evidence in this case that the defendant, by the use of violent and threatening conduct, attempted to control the victim.
Stark testified that, generally, domestic violence relationships do not end neatly but persist in some form despite the physical separation of the parties. Stark testified that, despite taking steps to end abusive relationships, victims of domestic violence typically continue to interact with their abusers for a variety of reasons, such as reducing the level of violence in the ongoing relationship or merely achieving immediate protection. Insofar as this observation conveyed “scientific, technical or other specialized knowledge”; Conn. Code Evid. § 7-2; we conclude that the court did not abuse its discretion in concluding that it would be helрful to the jury in its assessment of the evidence. There was ample evidence that the victim feared the defendant and that she attempted to end her contact with the defendant. She sought counseling, moved out of the residence that she shared with the defendant and obtained a protective order. To the extent that this evidence might have appeared to contradict a finding that the victim interacted with the defendant, even briefly, at the time of the murder, Stark’s testimony concerning the conduct of victims of domestic violence was useful to the jury in its appraisal of the victim’s conduct and whether, as the state argued, the defendant was the perpetrator of the victim’s murder. Thus, we conclude that the court’s admission of the testimony was not an abuse of discretion.
B
Next, аs he did at trial, the defendant argues that Stark’s testimony was inadmissible because it concerned battered woman’s syndrome and, thus, was irrelevant. As the defendant correctly points out, the state conceded at trial that the victim was not a battered woman in that it did not rely on evidence that, prior to the events at issue, the defendant physically assaulted the victim such that she could be considered a battered woman.
Our review of Stark’s testimony leads us to conclude that his testimony did not pertain to battered woman’s syndrome, but to the broader topic of the behavior of persons in a relationship characterized by domestic violence. Stark’s testimony was in no way limited to relationships marked by physical abuse, but those marked by violent and threatening conduct aimed at coercing a victim to behave in a certain way. Because this aspect of the claim is not based on the evidence presented at trial, it is without merit.
C
Next, the defendant claims that Stark’s testimony was inadmissible on relevance grounds “[bjecause the relationship at issue did not fall within the parameters of Stark’s definition of domestic
Our review of the record reflects that, at trial, the defendant argued that Stark’s testimony was inadmissible because there was no evidence that the victim was a battered woman or that the defendant had engaged in physical violence against the victim. The defendant did not argue that Stark’s testimony was irrelevant because the evidence did not fit into either of the types of domestic violence described by Stark; the defendant’s relevancy objection preceded this testimony. Because this aspect of the defendant’s evidentiary claim was not distinctly raised at trial, we do not reach its merits.
D
Next, the defendant argues that Stark’s testimony concerning nonphysical “ ‘coercive control’ ” in relationships characterized by domestic violence “was irrelevant because Stark had not reviewed the evidence regarding [the] defendant’s specific domestic situation prior to trial and had never made a diagnosis [concerning his relationship with the victim].” Relying on State v. Carpenter,
The record reflects that, at trial, the defendant objected on relevancy grounds to the admission of Stark’s testimony. The record, however, does not reflect that the defendant raised an objection that was grounded, even tangentially, in terms related to the present argument. Accordingly, we decline to review this aspect of the defendant’s claim. See, e.g., State v. Alvarez, supra,
E
Next, the defendant argues that the court should have excluded Stark’s testimony because “it improperly implicated
The record does not reveal that, at trial, the defendant objected to these inquiries during the state’s examination of Stark or that the defendant raised an objection of this nature. For this reason, we decline to review this aspect of the defendant’s evidentiary claim. See, e.g., State v. Alvarez, supra,
F
Next, as he did at trial, the defendant argues that the court should have excluded Stark’s testimony on the ground that it was not merely adverse to the defense but unfairly prejudicial. Essentially, the defendant argues that the evidence lacked any probative value and that it was highly prejudicial in that it “unfairly created sympathy for [the victim], and anger toward [the] defendant.” We disagree.
“Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Conn. Code Evid. § 4-3. “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. ... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Collins,
The defendant’s analysis inaccurately presumes that Stark’s testimony lacked any connection to the evidence in this case. Because it was reasоnable to find that the defendant’s violent and threatening conduct caused the victim to fear him, to alter her living arrangements and to obtain a protective order against him, we conclude that Stark’s testimony was likely to assist the jury in evaluating the nature of the defendant’s relationship with the victim. Furthermore, the defendant argues that “[bjecause [Stark’s] conclusory testimony led the jurors to believe that it was the natural result that murders occur when certain factors are present, it gave the jury no choice but to conclude that [the] defendant had also murdered.” The flaw in this argument, however, is that Stark did not testify that murder is the natural or customary result of a relationship characterized by domestic violence. Moreover, the defendant argues that Stark’s testimony likely misled the jury into believing that its deliberations were easy, made its job seem “cut and dry” when, in fact, Stark knew almost nothing about the facts of this case.
We disagree that the prejudicial effect of the evidence outweighed its probative value. Affording the court’s determination every reasonable presumption of correctness, we conclude that the court’s ruling was not an abuse of its discretion.
n
Next, the defendant claims that the court improperly permitted the state to present the prior testimony of Quinde on the ground that he was unavailable. Wе disagree.
The following additional facts underlie this claim. Prior to the presentation of evidence, the defendant’s attorney alerted the court to the fact that, at a prior criminal trial of the defendant that took place approximately five months earlier,
During the present trial, in November, 2009, the state presented the testimony of Marylou Comstock, an investigator in the office of the state’s attorney. Com-stock testified that one of her duties in assisting in the preparation оf cases for trial is to search for witnesses. Comstock testified that in January, 2009, as part of her work in this case, she was asked to locate Quinde. She testified that Quinde was living in Ecuador. Comstock testified that she searched for Quinde with the use of various databases and contacts. She testified that, in September, 2009, she searched once again for Quinde and that her research encompassed hospital data, motor vehicle data, tax data, department of correction data and department of labor data.
Additionally, the state presented testimony from Daniel Trompetta, a detective with the Danbury police department. Trompetta testified that, in connection with a probable cause hearing in this case, in 2007, he served a subpoena on Quindе at the Danbury residence of Quinde’s mother. Trompetta testified that, to his knowledge, sometime after Quinde testified at the probable cause hearing, he returned to Ecuador and remained in that country. Trompetta testified that, approximately six: months earlier, in connection with the earlier trial, he obtained Quinde’s telephone number in Ecuador from Quinde’s mother
Thereafter, the state offered Quinde’s testimony from the probable cause hearing on the ground that he was an unavailable witness. The defendant objected, arguing that the state had not demonstrated that it had exercised due diligence to present Quinde. Specifically, the defendant’s attorney argued that, unlike its efforts with regard to other witnesses that were not in Connecticut, the state did not demonstrate that it had offered either to finance Quinde’s travel to Connecticut from Ecuador or to handle immigration issues relаted to Quinde’s travel. The defendant’s attorney argued that because the state knew of Quinde’s whereabouts for several months, which was not the case at the time of the first trial, efforts of such nature were likely feasible and the fact that they were not made should be considered by the court when evaluating the state’s due diligence at the present trial. The court agreed with the defendant that the state had failed to demonstrate that Quinde was unavailable.
Later, the state presented the testimony of Maria Tigre, Quinde’s mother. Tigre testified that Quinde was in Ecuador, she spoke with Quinde two weeks earlier and Quinde did not want to return to Connecticut. Tigre testified that Quinde did not want to return to Connecticut because of concerns about what the defendant would do to him if he was released from prison. Also, the state presented testimony from Craig Martin, a detective with the Danbury police department. Martin testified that, two weeks earlier, with the assistance of a Spanish speaking police officer, he contacted Quinde in Ecuador and tried to convince him to return to Connecticut. Quinde refused. Martin testified that in the weeks prior to trial, the police left several messages for Quinde, but he did not respond to these messages.
Once more, the prosecutor asked the court to admit into evidence the probable cause hearing testimony of Quinde. The prosecutor asserted that it had made a sufficient showing that Quinde was unavailable. In his objection, the defendant’s attorney reiterated his earlier argument that the state had not demonstrаted that it offered to assist Quinde in returning to Connecticut for trial. Although the defendant’s attorney argued that such offers of assistance were not necessary in all cases to demonstrate the unavailability of a witness, he argued that such efforts were necessary with regard to Quinde because the state had made such efforts to procure the live testimony of other witnesses in this case. The prosecutor represented that, although the state had provided travel assistance to two other witnesses after they had expressed a willingness to return to Connecticut for the trial, Quinde had not expressed such willingness. The prosecutor represented: “I don’t think there’s any reason to presume that, had . . . Quinde wanted to come back, that the state would not have [arranged for his transportation to and accommodations in Connecticut].”
On appeal, the defendant takes issue with the court’s admission of the probable cause hearing testimony on the ground of Quinde’s unavailability. The defendant characterizes the state’s efforts to procure Quinde’s presence at the trial as less than diligent. The defendant asserts that the state merely located Quinde and took at “faсe value” his representation that he would not return to testify. The defendant argues that the admission of Quinde’s testimony deprived him of an opportunity to cast doubt on the testimony and an opportunity to demonstrate reasonable doubt of his guilt.
It is well established that, in certain circumstances, a party may present the prior testimony of a declarant who is unavailable to testify. See Conn. Code Evid. § 8-6 (1). “In State v. Frye,
“[D]ue diligence to procure the attendance of the absent witness [is] ... an essential . . . predicate of unavailability. ... To take advantage оf the hearsay exceptions requiring unavailability, the proponent must show a good faith, genuine effort to procure the declar-ant’s attendance by process or other reasonable means. . . . This showing necessarily requires substantial diligence. In determining whether the proponent of the declaration has satisfied this burden of making reasonable efforts, the court must consider what steps were taken to secure the presence of the witness and the timing of efforts to procure the declarant’s attendance. ... A proponent’s burden is to demonstrate a diligent and reasonable effort, not to do everything conceivable, to secure the witness’ presence.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Wright,
We observe that the defеndant does not argue that the court abused its discretion in accepting as true the evidence presented by the state with regard to its efforts to secure Quinde’s attendance at the trial. Nor does the defendant explicitly argue that the state had the ability to, but failed to, compel the attendance of Quinde, a foreign national, through its own process.
The record contains adequate evidence of the state’s efforts, which may be summarized as follows. With the use of various databases, Comstock was able to determine that Quinde was in Ecuador and that, as late as September, 2009, there was no record of his presence in the United States. In March, 2009, Trompetta obtained Quinde’s telephone number from his mother, Tigre, and spoke with Quinde via telephone, stressing thе importance of his presence at trial. Quinde unambiguously stated that he was not returning to Connecticut to testify in the defendant’s prosecution. This sentiment plainly was echoed by his mother who spoke with Quinde just two weeks prior to her testimony. Lastly, Martin contacted Quinde through a Spanish speaking officer just two weeks prior to his testimony, but Quinde again stated that he would not return to Connecticut to testify. In the weeks following this conversation, Quinde did not respond to additional messages left for him by the police.
Thus, the record reflects that persons, on behalf of the state, determined Quinde’s whereabouts, conducted research to ensure that he was not in the United States, spoke with him about the importance of his presence at trial and directly inquired if he would return to testify. These efforts were made until the eve of trial. The gist of the defendant’s arguments is that the state conceivably could have done more to secure Quinde’s attendance by providing travel and immigration assistance to Quinde, taking steps to ensure that Quinde did not leave the country prior to trial and providing protection to Quinde during his stay in Connecticut. Again, the defendant argues that the state undertook greater efforts to secure the presence of other state witnesses who were living abroad.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The court imposed a sentence of fifty-five years incarceration.
Stark testified: “I would define domestic violence as any situation where a partner or a former partner of somebody who’s involved in a relationship uses forms of coercion, not limited to, but typically including, violence and threats, to hurt or to frighten or to subjugate, in some cases, or to make dependent, the victim in that instance.”
At trial, the defendant, arguing that the court should preclude Stark’s testimony, raised a materially similar argument. Specifically, the defendant’s attorney argued that, because the evidence presented at trial did not reflect that the victim was physically abused by the defendant, Stark’s testimony concerning domestic violence was not “relevant” or “probative” to any issue in the present case.
There was evidence that the defendant slapped the victim twice, that on one occasion the defendant waited near the victim’s driveway for her to return home and grabbed the victim by the arm when he encountered her and that the victim had obtained a protective order after alleging “an immediate and present physical danger to [her] and/or [her] minor children” posed by the defendant. A coworker of the victim described an incident in which the defendant followed the victim and her in his automobile as they drove home from work. During the incident, the defendant repeatedly turned the headlamps of his automobile on and off and nearly caused an automobile accident. Apart from the defendant’s threats against the victim’s well-being, he behaved violently in the victim’s presence by engaging in a physical altercation with Quinde in public. There was evidence that the defendant, on several occasions, threatened the victim, harassed the victim and greatly upset the victim.
“[A]s a precautionary measure,” the defendant urges us to review any unpreserved aspects of his claim under the doctrine set forth in State v. Golding,
At the prior trial, which was based on the events at issue in this case, the defendant was convicted of stalking in the first degree. The jury in that trial, however, was unable to reach a verdict as to the murder count.
In light of our determination that the court properly admitted Quinde’s testimony on the ground that he was an unavailable witness, we need not discuss the substance of his testimony. Accordingly, we do not address the state’s alternate argument that Quinde’s testimony was cumulative of other evidence and that it was unlikely to have affected the jury’s verdict.
Although the defendant argues in part that the court’s admission of the evidence violated his right tо confrontation under the federal and state constitutions, we view the claim as being evidentiary, rather than constitutional, in nature. As a preliminary matter, we do not address the claim under the state constitution because the defendant did not provide this court with an independent analysis under the state constitution. See, e.g., State v. Vakilzaden,
Beyond stating that the court violated his sixth amendmеnt right to confrontation, the defendant does not undertake an analysis to demonstrate that, because he lacked an opportunity to cross-examine Quinde at the probable cause hearing, the admission of the testimony violated his rights under the confrontation clause of the sixth amendment to the United States Constitution. The defendant does not raise a Crawford claim and did not advance arguments of that nature before the trial court. See Crawford v. Washington,