STATE OF CONNECTICUT v. JOSUE RIVERA
AC 36979
Appellate Court of Connecticut
Argued September 8—officially released November 15, 2016
Beach, Prescott and Bishop, Js.
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Susan M. Hankins, assigned counsel, for the appellant (defendant).
Rocco A. Chiarenza, assistant state‘s attorney, with whom were Brian K. Sibley,
Opinion
PRESCOTT, J. The defendant, Josue Rivera, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of
The jury reasonably could have found the following facts. Sometime in April or May, 2012, the victim, Anthony Pesapane, began living with the defendant and the defendant‘s family in a first floor unit of a multifamily house in New Haven, an arrangement designed to help the defendant pay rent. The victim regularly attended a local clinic to receive daily methadone treatments, and would often drive the defendant and his wife, Marta Matejkowska, to the clinic for their treatments as well. The last time the victim ever attended the clinic, however, was on June 4, 2012.
Later that day, while in the victim‘s bedroom, the defendant fatally stabbed the victim twenty-one times. One wound was 3.5 inches deep in the victim‘s chest and punctured his heart. After the victim died, the defendant cleaned the room with bleach, discarded the knife into the Quinnipiac River, and rolled the victim‘s body up into a rug. The defendant then obtained a U-Haul truck and placed the body and other bloodstained items in the rear compartment of the truck.
On June 11, 2012, the police conducted a motor vehicle stop of the U-Haul in Woodbridge, and found Matejkowska in the driver seat and the defendant in the passenger seat. The police then opened the back of the truck, where they found the
On February 20, 2014, in a long form information, the defendant was charged with murder in violation of
I
PROSECUTORIAL IMPROPRIETY
The defendant first claims that the prosecutor deprived him of his constitutional and statutory right to remain silent as well as his due process right to a fair trial by committing various acts of impropriety during closing argument to the jury. In particular, the defendant argues that the prosecutor improperly (1) commented on the defendant‘s failure to testify, (2) shifted and misstated the burden of proof with respect to self-defense, and (3) argued facts not in evidence. The state argues that the prosecutor‘s comments were not improper. Alternatively, the state contends that even if one or more of the prosecutor‘s comments were improper, none of them deprived the defendant of a fair trial. We disagree with the defendant that the prosecutor‘s comments were improper.
Before addressing the merits of the defendant‘s claim, we set forth the applicable standard of review and the law governing prosecutorial impropriety. Although the defendant did not preserve his claim of prosecutorial impropriety by objecting to the alleged improprieties at trial, “[o]nce prosecutorial impropriety has been alleged . . . it is unnecessary for a defendant to seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant‘s claim under Golding.” (Footnote omitted.) State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007). “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. . . . In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial.”3 (Citations omitted.) Id., 32.
A
Alleged Comment on Defendant‘s Failure to Testify
We turn first to the defendant‘s argument that the prosecutor improperly commented during closing argument on the defendant‘s failure to testify, thereby violating the defendant‘s fifth amendment rights4 and
During closing argument, the prosecutor directed the jury‘s attention to what he argued were the material pieces of evidence that the jury should consider when determining the defendant‘s guilt. The prosecutor stated: “What are some things you should look at? The two statements are probably the two most important things that give light to what happened here. In this courtroom there is one person [who] can tell you exactly what happened, to be truthful, and sit and ask questions, and that‘s [the defendant]. The only other person that we know is [the victim] and, unfortunately, he‘s not here, or we wouldn‘t be here. So, who has something to lose when they start telling the story about why they got caught with a body in the back of a truck? You have to come up with some explanation when the police are banging on that door, saying, tell me what‘s going on back here.”
Shortly thereafter, the prosecutor again returned to the subject of the defendant‘s statements to the police, imploring the jury to “[t]ake a look at the statements; those are the two closest things that we‘re going to get to in terms of what happened.
“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. . . . Our legislature has given statutory recognition to this right by virtue of its enactment of . . .
“When reviewing the propriety of a prosecutor‘s statements, we do not scrutinize each individual comment in a vacuum but, rather, review the comments complained of in the context of the entire trial. . . . [W]hen a prosecutor‘s potentially improper remarks are ambiguous, a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” (Citation omitted; internal quotation marks omitted.) State v. Felix R., 319 Conn. 1, 9, 124 A.3d 871 (2015).
Here, the defendant argues that the prosecutor‘s remarks were explicitly directed toward the defendant‘s failure to testify because the plain language, “that‘s [the defendant],” “[i]n this courtroom,” and “sit in that chair,” leaves no room for any other possible interpretation. He asserts that the improper remarks attempted to inextricably link the defendant‘s credibility and viability of his self-defense claim to his failure to take the witness stand, as most clearly illustrated by his comment that the defendant was the “one person” who “can tell [the jury] exactly what happened” because “[t]he only other person” was the victim. The state argues that, if the comments are viewed in their full context, the prosecutor was stating to the jury that it needed to assess carefully the credibility of the two statements that the defendant provided to police because the only two people who had firsthand knowledge of what occurred on the day the victim was killed were the defendant and the victim.
In this case, we conclude that although, in isolation, the statements relied on by the defendant could be construed as referring to the defendant‘s decision not to
The challenged comment that is most equivocal in its meaning is the prosecutor‘s question, “Does somebody have a stake when they sit in that chair and testify for you?” It is unclear whether the prosecutor was referring to the stake that any witness has when he or she sits in the witness chair and testifies at trial, the stake that the defendant specifically has when he sits in the witness chair and testifies at trial, or the stake that the defendant specifically has when he sits in a chair at the police station and gives his version of events, as presented to the jurors at trial. We conclude that this segment of the closing argument was, at worst, sufficiently ambiguous that it clearly was not “manifestly intended to be, [nor] was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify . . . .” (Internal quotation marks omitted.) State v. Parrott, supra, 262 Conn. 293. Because “a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning“; State v. Felix R., supra, 319 Conn. 9; we decline to accept the defendant‘s interpretation of the prosecutor‘s comments. Accordingly, we conclude that the challenged statements do not constitute improper comments by the prosecutor on the defendant‘s failure to testify.
B
Alleged Misstatement of Burden of Proof
The defendant next contends that the prosecutor misled the jury by misstating
During the state‘s direct examination of James R. Gill, the state‘s chief medical examiner, the prosecutor asked if the victim‘s wounds were consistent with the victim having been lying down at the time he was stabbed, to which Gill replied: “Certainly, if he‘s [lying] down prone . . . on his back, it would be a matter of having that surface of the body where the stab wound was to be able to be reachable or exposed to the knife.” Subsequently, during cross-examination, the defendant‘s counsel engaged Gill in the following exchange:
“Q. Dr. Gill, from your examination of the body of [the victim], who started the fight?
“A. I have no idea if there even was a fight. . . .
“Q. And you don‘t know where [the victim] was standing in relation to the person who stabbed him, correct?
“A. Yeah, I don‘t know if he was standing, sitting, lying down; that‘s correct.
“Q. Actually, it could be—as long as the—the arm could reach to the spot where the stab wound went in, it could be in any position, correct?
“A. It could be from behind, reaching around, yeah, a variety of positions, yeah.”
After this line of questioning, the defendant and his counsel performed demonstrations in the courtroom in which they modeled several positions that the defendant and the victim may have been in when the altercation began and the victim sustained various injuries.7 The defendant‘s counsel then followed up the presentations by asking Gill if each demonstration was consistent with the wounds of the victim as contained in the autopsy findings. Subsequently, during closing argument, the prosecutor referenced these enactments and stated: “You saw the defendant and his attorney provide demonstrations here in the courtroom; seemed pretty creative. Is it possible? Yes, it‘s possible. But what is more probable in light of the injuries?” (Emphasis added.)
We turn then to the authorities relevant to this claim. The defense of self-defense is codified in
“Under our Penal Code, self-defense . . . is a defense . . . rather than an affirmative defense. . . . Consequently, a defendant has no burden of persuasion for a claim of self-defense; he has only a burden of production. That is, he merely is required to introduce sufficient evidence to warrant presenting his claim of self-defense to the jury. . . . Once the defendant has done so, it becomes the state‘s burden to disprove the defense beyond a reasonable doubt. . . . The state may defeat a defendant‘s claim of self-defense involving deadly physical force by proving, beyond a reasonable doubt, any of the following: (1) the defendant did not reasonably believe that the victim was using or about to use deadly physical force or inflicting or about to inflict great bodily harm; or (2) the defendant knew that he could avoid the necessity of using deadly physical force with complete safety by retreating . . . .” (Citations omitted; internal quotation marks omitted.) State v. Singleton, 292 Conn. 734, 747, 974 A.2d 679 (2009).
Although, in a criminal prosecution, a material fact must be proven beyond a reasonable doubt, “[t]his does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury‘s factual inferences that support a guilty verdict need only be reasonable. . . . [I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 518, 782 A.2d 658 (2001).
Here, the defendant argues that the prosecutor‘s use of the language “probable” and “possible” misled the jury by suggesting a probability standard for self-defense rather than the state‘s burden of disproof beyond a reasonable doubt. We do not agree.
The prosecutor‘s remark—“Yes, it‘s possible. But what is more probable“—explicitly refers to the courtroom demonstrations that the defendant and his counsel engaged in during the trial. Those demonstrations attempted to show the different positions that the victim may have been in when the altercation began and escalated, in an effort to cast doubt on the state‘s theory that the victim was lying down when the dispute started. The only two elements of self-defense that the state must disprove “beyond a reasonable doubt” are (1) that the defendant reasonably believed that the victim was using or about to use deadly physical force or inflicting or about to inflict great bodily harm, and (2) that the defendant did not know that he could avoid the necessity of using deadly physical force with complete safety by retreating. Therefore, although evidence offered to prove how the victim was positioned when the dispute began is certainly useful information for the jury to consider, it is not an element of self-defense pursuant to
Because the prosecutor characterized the defendant‘s demonstrations to the jury as providing only a possible version of the events in question, he referenced the proper “reasonable” versus merely “possible” standard assigned to subsidiary findings. We conclude, therefore, that the prosecutor did not commit impropriety by using the “possible” versus “probable” language during closing argument.
Relatedly, the defendant also claims in this section of his brief that the prosecutor improperly communicated to the jury during closing argument the state‘s theory that the defendant initially stabbed the victim while the victim was sleeping. More specifically, the defendant argues that this theory was unsupported by the evidence. The state responds that this theory constituted a reasonable inference drawn from both the testimony of Gill and the physical evidence of the victim‘s injuries.
“[T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. . . . But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Internal quotation marks omitted.) State v. Niemeyer, supra, 258 Conn. 518.
As previously discussed, Gill testified during direct examination that the victim‘s wounds were consistent with having been in a prone position at the time he was stabbed. On redirect, the state again followed up on this theory, asking Gill “if a person was prone, face down, and a right-handed person approached the person that‘s prone up toward the head area, and the person would be lower, wouldn‘t that also be consistent with the type of wounds that were received on the—the left side of the neck and shoulder,” and whether “[i]t would be easier for a shorter person to reach a taller person at that—at that level,” to both of which Gill answered in the affirmative. Given this testimony and the one-sided nature of the victim‘s injuries, and especially in light of the generous latitude we afford prosecutors during closing arguments, it was reasonable for the prosecutor to ask the jury to infer that the victim was first attacked when he was asleep. We conclude that this did not constitute impropriety.
C
Alleged Interjection of Facts not in Evidence
Finally, the defendant contends that the prosecutor committed an impropriety during closing argument when he interjected facts that were not in evidence. Specifically, the defendant argues that the prosecutor improperly brought in “facts” that were based on assumptions about professional fighters in general, drug addicts in general, and the defendant and the victim in particular.8 The state responds that these comments constituted an appropriate use of a rhetorical device designed to appeal to the jury‘s common sense. We agree with the state.
In his rebuttal argument, the prosecutor, in an effort to cast doubt on the defendant‘s
Our law is well settled that “[the prosecutor‘s] conduct and language in the trial of cases in which human life or liberty [is] at stake should be forceful, but fair, because he [or she] represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice or resentment. . . . That is not to say, however, that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . The state‘s attorney should not be put in [a] rhetorical straitjacket . . . .” (Citations omitted; internal quotation marks omitted.) State v. Wilson, 308 Conn. 412, 435, 64 A.3d 91 (2013). Moreover, “jurors, in deciding cases, are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel to appeal to a jury‘s common sense in closing remarks.” (Internal quotation marks omitted.) State v. Maner, 147 Conn. App. 761, 790-91, 83 A.3d 1182 (2014), cert. denied, 311 Conn. 935, 88 A.3d 550 (2014).
In the present case, the defendant argues that the prosecutor‘s remark was improper because no evidence was presented at trial about the abilities of professional fighters or the physical abilities, stamina, and nutrition of drug addicts. We are not convinced that there needed to be. The use of juxtaposition, wherein one places a person, concept, or idea parallel to another to highlight the contrast between the two and compare them, as a rhetorical device to make a point in closing argument, is not prohibited. In this case, the prosecutor used the device in appealing to the jury‘s common sense that, because even professional fighters lack the stamina to fight continuously for an hour, the defendant‘s version of events simply was incredible. We agree with the state that the prosecutor “naturally presented [his argument] to the jury with the warmth and color of advocacy.” State v. Chapman, 103 Conn. 453, 476, 130 A. 899 (1925). To hold otherwise would be to put the prosecutor in the prohibited “rhetorical straitjacket,” which we decline to do.
In sum, we conclude that none of the challenged comments by the prosecutor was improper. Accordingly, the defendant was not deprived of his right to a fair trial.
II
ADMISSION OF EXPERT TESTIMONY BY DETECTIVE WUCHEK
We next turn to the defendant‘s claim that “[t]he trial court erred in permitting
During its case-in-chief, the state presented the testimony of Joseph Pettola, a detective with the New Haven Police Department. Pettola, who participated in the videotaped interview of the defendant along with Wuchek, described the defendant‘s demeanor during that meeting as “kind of on the nervous side.” He further testified, without objection, that the defendant “wouldn‘t look Detective Wuchek in our eye—in the eye, in our eyes, which is an indicator of, you know, if you‘re telling the truth or not, and doing many, many—hundreds of interviews in my career.” The prosecutor then engaged in the following exchange with Pettola:
“Q. All right. Were you also sort of paying attention to things like body language and things of that nature as [the defendant‘s] answering questions?
“A. Of course.
“Q. All right. What are you looking for when you‘re doing interviews and you‘re in that role, you‘re just observing somebody? What are some of the cues that you‘re looking for, sir?
“A. About—like I said before about looking you in the eye and not keeping your head down and looking up forward. . . .
“Q. All right. So, now, you—what—you said—you were looking for what, sir?
“A. Like, if the person you‘re interviewing [is] actually looking, you know, one-on-one, looking—look you right in the eye and wouldn‘t keep their head down or being fidgety, you know, all the time saying something and moving—moving certain body parts, as being very nervous or irritable when they‘re—when they‘re giving their version of what happened.”
The state later presented the testimony of Wuchek, during which the defendant‘s videotaped statement was admitted into evidence. After the videotape concluded, the state asked Wuchek if he “[pays] any particular attention to such things like body language” during his police interviews, to which Wuchek answered in the affirmative. When the state asked him to elaborate on why he does that, the defendant objected on the ground of relevance, without further elucidation, which the trial court overruled.11 Wuchek then replied that “[b]ody language helps [him] gauge the truthfulness of people‘s answers,” to which the defendant again objected, stating: “The jury has seen a videotape of the entire interview. The witness’ interpretation of my client‘s credibility is—is taking on the jury‘s job.”14 The trial court disagreed and again overruled the objection. Wuchek continued: “Through interview and interrogation courses, we‘ve learned
In a final exchange relevant to this claim, the prosecutor asked Wuchek if, during the course of his interview with the defendant, he had at his disposal bank records, phone records, evidence from the U-Haul scene, and/or evidence from the rental unit scene. Wuchek stated, “No, I don‘t think so.” The following colloquy then took place between the prosecutor, Wuchek, the defendant‘s counsel, and the trial court:
“[The Prosecutor]: All right. So, how does . . . a lack of information such as being able to do those things affect your interview in this case?
“[The Witness]: Well, I want to have as many facts as I—as I can to the case, both background and facts of the physical evidence so that I can gauge that person—gauge that person‘s truthfulness. A lot of times that‘s why I‘ll repeat the—
“[The Defendant‘s Counsel]: Objection, Your Honor. He‘s testifying as to evaluating a person‘s truthfulness. This is the sole province of the jury.
“The Court: No, it‘s an interview technique that he is discussing that he‘s been trained for, so I‘m going to allow it.
“[The Defendant‘s Counsel]: Well, I—I didn‘t hear a foundation of how—what training and experience—well, the training that he‘s received in determining people‘s truthfulness.12 I didn‘t hear anything about his courses at the police academy or anything that he did in order to prepare himself to determine somebody‘s truthfulness.
“The Court: All right. Do you want to get into more of a foundation on that?
“[The Prosecutor]: Judge, I believe the officer‘s testified he‘s conducted over thousands of interviews, and he just testified that through courses in interrogations and interviews, he‘s had training.
“The Court: All right. I will allow it. Go ahead.”
As a threshold matter, we first address the state‘s initial argument that the defendant‘s evidentiary claim was not preserved at trial and, thus, is unreviewable by this court on appeal. “[T]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. . . . In order to preserve an evidentiary ruling for review, trial counsel must object properly. . . . In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of [the] objection, any appeal will be limited to the ground asserted.” (Internal quotation marks omitted.) State v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013).
Although the defendant‘s brief on appeal is somewhat unclear regarding the precise ground upon which he challenges Wuchek‘s testimony, a careful reading of the defendant‘s appellate brief, as well as remarks made at oral argument, lead us to conclude that he primarily argues that physical indicators of a person‘s untruthfulness is not an appropriate topic for expert testimony because it is inherently unreliable.
We agree with the defendant that a significant question exists regarding whether the type of testimony in the present case is inherently reliable and, thus, “helpful to the . . . jury in considering the issues.” (Internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., supra, 280 Conn. 342. As previously mentioned, our Supreme Court recently suggested in a lengthy footnote in Lapointe that, at a minimum, this method of behavior analysis by police would be subject to substantial impeachment, without necessarily opining on its admissibility. We need not decide this issue in the present case, however, because the three objections made by the defendant in response to Wuchek‘s testimony did not apprise the trial court that the basis of the objection was a challenge to the reliability of this type of testimony. Instead, the objections included a generic reference to its relevance, a claim that the testimony
To the extent that the defendant challenges on appeal Wuchek‘s testimony on the ground that it invaded the jury‘s exclusive function as trier of fact to assess the defendant‘s credibility, we conclude
“[I]t is a jury‘s duty to determine the credibility of witnesses and to do so by observing firsthand their conduct, demeanor and attitude.” State v. Johnson, 288 Conn. 236, 265, 951 A.2d 1257 (2008). “Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness’ claims.” State v. Iban C., 275 Conn. 624, 634, 881 A.2d 1005 (2005). Moreover, our Supreme Court held in State v. Favoccia, 306 Conn. 770, 51 A.3d 1002 (2012), that an expert should not be permitted to testify as to whether a particular complainant exhibited specific behaviors that the expert also identified as those characteristic of sexual assault victims because (1) such testimony amounts to an implicit opinion on whether the complainant‘s claims are truthful, and (2) the subject of such testimony is not beyond the knowledge of an average juror.
We previously have emphasized, however, that “a critical distinction must be recognized between admissible expert testimony limited to general or typical behavior patterns and inadmissible testimony directly related to a particular witness’ credibility.” State v. Leniart, 166 Conn. App. 142, 223, 140 A.3d 1026 (2016), cert. granted on other grounds, 323 Conn. 918, A.3d (2016), citing State v. Spigarolo, 210 Conn. 359, 378-79, 556 A.2d 112 (1989), cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). Thus, in Leniart, we held that the trial court abused its discretion by excluding expert testimony that was “narrowly tailored to provide only general information related to [jailhouse] informant testimony and its unreliability“; State v. Leniart, supra, 224; because the expert “offered no testimony regarding any of the particular informants in this case, either with respect to their status as informants, how they had obtained their information, or their potential reliability as witnesses.” Id., 223.
Similarly, in the present case, the trial court record reveals that Wuchek was never asked for, nor did he offer, his opinion as to either the credibility of this particular defendant, the truthfulness of this particular defendant‘s statements, or whether the defendant exhibited any behaviors characteristic of untruthful behavior. Although Wuchek did testify generally as to various behaviors concerning eye contact, posture, and speaking patterns that, on the basis of his training and experience, he opined are characteristic of people who are being untruthful, Wuchek, unlike the expert in Favoccia, did not directly comment on whether this particular witness exhibited any of those discussed behaviors. The jury remained free to assess independently, untainted by expert testimony, whether the defendant actually engaged in such behaviors.15 Accordingly,
In sum, we conclude that to the extent the defendant is now claiming that body language and other behavioral indicators of untruthfulness are not proper subjects for expert testimony because they are inherently unreliable, this claim was not properly preserved at trial. To the extent that the defendant is claiming that Wuchek‘s testimony invaded the jury‘s exclusive function as trier of fact to assess the defendant‘s credibility, we conclude that the trial court did not abuse its discretion in making this evidentiary ruling.
III
ADMISSION OF POSTMORTEM PHOTOGRAPHS OF VICTIM
We next turn to the defendant‘s claim that the trial court improperly admitted postmortem photographs of the victim‘s corpse in advanced decomposition. The defendant argues that the limited evidentiary value of the photographs was outweighed by their prejudicial effect because the photographs improperly inflamed the emotions of the jury. In response, the state argues that the defendant has failed to establish that the trial court abused its discretion in admitting the subject photographs. We agree with the state.
During the state‘s case-in-chief, Matthew Greenstein, a state police trooper responsible for collecting evidence at the scene where the victim‘s body was found, identified five photographs that depicted various items as they appeared in the back of the U-Haul truck. The defendant objected to the admission of one of the photographs that depicted the victim‘s body partially rolled in the rug amid other items in the back of the truck, and the trial court excused the jurors. The defendant conceded that the photograph was relevant, but argued that its probative value was outweighed by its prejudicial effect because it portrayed a decaying head that would be shocking to the jury. Moreover, he contended that the state had already established that there was a body found in the back of the U-Haul and that the body was that of the victim. The state argued that the photograph was relevant to the case, as the manner in which the victim‘s body was discovered was relevant both to the charge of tampering with physical evidence as well as to the defendant‘s state of mind.
The trial court examined the photograph and overruled the defendant‘s objection, noting that the photograph was part of the history of the case and relevant to both counts, and that it was not inflammatory because it merely depicted the left arm of a person, presumably the victim, with the top of the body being “dark; this court cannot even make out what that entails.” Ultimately, the trial court concluded that the photograph was “not so prejudicial that it cannot be seen [by] the jury.”
The defendant next objected to autopsy photographs of the victim that the state sought to admit during its direct examination of Gill, the chief medical examiner. After the jury was excused from the courtroom, the defendant again asserted that the probative value of the photographs was very small compared to the prejudicial effect they would have on the jury, as the
The trial court, which had previously examined the photographs in chambers, overruled the defendant‘s objection, citing the state‘s heavy burden to prove every element of the two count information beyond a reasonable doubt, and the defendant‘s self-defense theory of the case on which the jury was to be instructed in the future. More specifically, the trial court stated that “it‘s very relevant for this jury to see . . . the number of stab wounds, the location of the stab wounds because that gets into the subjective, objective thoughts of the defendant and his claim of self-defense. So, that‘s relevant. . . . I understand that the photos are not the easiest to see. The record will reflect that I have seen the photos in chambers. So, I am going to allow them in. I find that they would be an aid to this jury and they are relevant evidence, so I will allow them in.” Accordingly, the trial court engaged in a weighing of the probative value of these photographs against their prejudicial effect.
As previously mentioned, our standard of review for evidentiary rulings is well established. “The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000). “[S]ound discretion has long meant a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.” (Internal quotation marks omitted.) State v. Williams, 195 Conn. 1, 8, 485 A.2d 570 (1985). Furthermore, “[e]very 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.” (Internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 173, 777 A.2d 604 (2001).
Section 4-3 of the Connecticut Code of Evidence provides: “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.” “A potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs
In the present case, the comprehensive trial court record reveals that we need not engage in a lengthy analysis of the court‘s ruling. As previously recounted, the trial court heard a lengthy offer of proof and arguments from the parties before balancing the probative value of the photographs against the risk of unfair prejudice. With respect to the photograph showing what appeared to be the victim‘s body in a rug in the back of the U-Haul truck, the trial court had difficulty even finding anything inflammatory about the image because it was difficult for the viewer to make out any details concerning the appearance of the victim‘s body. With respect to the autopsy examination photographs, we have previously held that “[a]utopsy photographs depicting the wounds of victims are independently relevant because they may show the character, location and course of the [weapon],” and that it is not an abuse of discretion to admit them when they are presented “to prove intent and causation, to help explain the autopsy procedure, [and] to assist the medical examiner in describing his observations . . . .” State v. Howard, 88 Conn. App. 404, 428, 870 A.2d 8 (2005), cert. denied, 275 Conn. 917, 883 A.2d 1250 (2005). On the basis of our review of the record, including the photographs in question, therefore, we conclude that the trial court did not abuse its discretion by admitting the photographs into evidence.
IV
EXCLUSION OF PROFFERED SELF-DEFENSE EVIDENCE
The defendant finally claims that the trial court improperly excluded evidence relevant to his state of mind and self-defense claim, thereby violating his right to present a defense. Specifically, the defendant argues that the trial court should have allowed the jury to hear evidence of his prior experience as a witness to a fatal knife fight many years earlier because it was relevant to support his subjective belief that he needed to use deadly physical force against the victim pursuant to
During his case-in-chief, the defendant, as support for his self-defense claim, sought to admit evidence of a fatal knife fight that he had witnessed fourteen years earlier. Outside the presence of the jury, the defendant offered the testimony of private investigator Deborah Curtis, who did not witness the altercation but had investigated
Before the defendant could finish his questioning of Curtis, however, both the state and the trial court interjected. The state proceeded to object to the admission of the evidence on relevance grounds, citing its remoteness in time from the events of the present case, and the lack of correlation between the proffered evidence and the alleged events of the present case. In response, the defendant argued that “the fact that he witnessed two of his stepfathers in a knife fight and one of them died is a subjective aspect of this—of his psyche and what he was anticipating the threat to be when [the victim] came at him with a knife.” The defendant also informed the trial court that he intended to call to the witness stand Sergio Estrada, the defendant‘s stepfather and one of the two individuals involved in the knife fight in 2000, as part of his offer of proof. Specifically, the defendant‘s counsel stated that he intended “to have [the defendant‘s] stepfather, who survived, testify; he‘s going to show scars on his hand where the knife severed almost all of his fingers off, scars on his back where he was stabbed on the back, and we‘re going to hear about how bloody this confrontation was, how the family was at risk, and how the individual who came into the house with a knife was intoxicated.” This proffer did not include any indication that Estrada could testify to what precisely the defendant saw during the altercation.
The trial court ultimately sustained the state‘s relevancy objection to the offer of proof, without hearing Estrada testify. It ruled that the offer of proof was not relevant to what the jury had to decide, stating that it “thought [the trial court] was going to hear an offer of proof concerning that [the victim] was somehow involved in a prior altercation or this defendant heard about [the victim] being involved in a stabbing incident and was fearful,” and that the defendant was “basically saying then that if somebody‘s charged with a violent assault, like we are here, which ended up in a murder, and they‘re pleading self-defense . . . that every episode that he or she was exposed to that has no bearing whatsoever on the deceased in the case on trial . . . the jury should hear . . . .”
We first set forth our standard of review. “As we recently observed, [a] defendant‘s right to present a defense does not include a right to present evidence that properly is excluded under the rules of evidence. . . . The sixth amendment to the United States constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant‘s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense. . . . A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant‘s right is not violated.” (Internal quotation marks omitted.) State v. Abreu, 106 Conn. App. 278, 282, 941 A.2d 974 (2008), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008).
“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . .
“When a defendant charged with murder asserts that he killed in self-defense, his state of mind—the existence and reasonableness of apprehension of such violence by the deceased as to justify the defensive measures adopted—becomes material.” (Internal quotation marks omitted.) State v. Collins, 68 Conn. App. 828, 832, 793 A.2d 1160 (2002), cert. denied, 260 Conn. 941, 835 A.2d 58 (2002). “We have articulated the requirements of self-defense as follows. A person may justifiably use deadly physical force in self-defense pursuant to [General Statutes]
In this case, we do not conclude that the trial court ruled on the relevancy of the defendant‘s proffered evidence so arbitrarily as to vitiate logic, or decided it on the basis of improper or irrelevant factors. The two proffered witnesses could not testify to exactly what the defendant saw in the fatal knife fight, or the nature or degree to which the experience subjectively affected him. Moreover, the testimony of Curtis, a private investigator who was not even present at the scene of the altercation when it occurred, would presumably be riddled with hearsay problems had she been permitted to testify at trial. We also note that we need not decide whether evidence regarding this dispute would have been admissible had it been offered through the defendant‘s testimony because this was not the manner in which the defense offered it.
Ultimately, the knife fight incident occurred more than one decade before the events of the present case took place. Thus, it was remote in time from the present case. Further, in addition to the fact that the prior incident did not involve the victim in this case in any capacity, the prior incident did not feature the defendant as an actual participant in the knife fight. Moreover, as noted previously, a substantial question regarding the admissibility of this evidence could have arisen, thereby interfering with the orderly administration of the trial. Finally, the trial court made clear its concern that accepting
The judgment is affirmed.
In this opinion the other judges concurred.
PRESCOTT, J.
Notes
“Q. Now, with regard to—there were several stab wounds on the right elbow of [the victim]; is that correct?
“A. Correct.
“Q. And they were clustered right around here?
“A. Yes, around the elbow.
“Q. Okay. Is that consistent with somebody—well, let me have the defendant stand up and—and model with me to see if it‘s consistent with his findings.
“Q. If I—if [the victim], who‘s about this height, had the defendant in a headlock like this, and the defendant had a knife in his right hand, and—[the defendant]—and would stab him here, would that be consistent with your findings?
“A. Yes.”