200 Conn. 721 | Conn. | 1986
After a jury trial, the defendant, David Sanchez, a/k/a Cecilio DeLeon, was convicted of felony murder in violation of General Statutes §§ 53a-54c and
I
The defendant’s first claim is that the trial court erred in excluding the hearsay confession of a third party. The defendant attempted to introduce a statement made out of court by a third party, one Jovino Solar. The statement was sought to be introduced through Maria Navarro, who had previously testified that the defendant had been with her on the night of the robbery and murder.
In State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980), we held that third party statements against penal interest exculpatory to a defendant were no longer per se inadmissible. See also State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). The rule we adopted in DeFreitas is consistent with the United States Supreme Court decision in Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), and is also in accord with rule 804 (b) (3) of the Federal Rules of Evidence providing that trustworthy third party statements against penal interest exculpatory to a defendant are admissible if the declarant is
In our review of a trial court’s ruling on the admissibility of the third party confession, the determination as to whether the third party declaration against penal interest is trustworthy is left to the sound discretion of the trial court. State v. DeFreitas, supra. In this case, the trial court excluded the proffered testimony on the ground that “the corroborating circumstances clearly indicate[d] that the alleged statement was untrustworthy.” The unavailability of the declarant was established, and it is undisputed that the alleged statement was against the declarant’s penal interest. Therefore, we will examine only the evidence concerning the time of the declaration, the party to whom it was made, and the evidence corroborating the statement. See State v. DeFreitas, supra, 449.
The defendant first argues that Solar’s statement. was made at a time and to a person that would tend to indicate trustworthiness. We disagree. Although the statement was allegedly made only hours after the crimes occurred; see State v. Gold, supra, 634; cf. United States v. Satterfield, 572 F.2d 687 (9th Cir.), cert. denied, 439 U.S. 840, 99 S. Ct. 128, 58 L. Ed. 2d
We now turn to the second factor, the corroboration of the statement. Unlike the situation in State v. Gold, supra, 634, where “a myriad of corroborating circumstances were present” to indicate reliability, here the record reveals few, if any, corroborating circumstances. The declarant in this case was not placed in the vicinity of the crime by another witness. Therefore, there was no independent evidence that Solar had an opportunity to commit the murder. Cf. State v. Gold, supra, 634-35. Moreover, the alleged statement by Solar was in direct conflict with the testimony of the two eyewit
II
The defendant next claims that the trial court erred in denying his motion to open his case for the purpose of calling an additional alibi witness, Hector Rodriguez. Specifically, he challenges the trial court’s ruling on four grounds: (1) he was in compliance with the applicable Practice Book sections; (2) the trial court improperly relied upon the “stipulation” of the defendant that Rodriguez would not be called as a witness; (3) the trial court’s ruling denied him due process of law under the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution; and (4) the trial court abused its discretion in denying the motion to open. We disagree
As we recently stated in State v. Boucino, 199 Conn. 207, 209, 506 A.2d 125 (1986), “our state’s notice of alibi discovery rules are similar in scope and wording to those used in the federal system and most states. See Fed. R. Crim. Proc., rule 12.1; see generally LaFave & Israel, Criminal Procedure (1985) § 19.4 (b).” Practice Book § 763 provides that “[u]pon written demand filed by the prosecuting authority ... the defendant shall file within ten days, or at such other time as the judicial authority may direct, a written notice of his intention to offer a defense of alibi.” Pursuant to § 763 the notice must state “the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.” Once this notice is filed by the defendant, the state “within ten days after filing of the notice, but in no event less than ten days before the trial unless the judicial authority otherwise directs, shall file a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense and any other witnesses to be relied upon to rebut testimony of any of the defendant’s alibi witnesses.” Practice Book § 764. Upon failure of the defendant or the state to comply with these provisions, the trial court “may exclude the testimony of any undisclosed witness . . . . ” Practice Book § 766.
On July 15,1982, the state filed a demand for notice of alibi pursuant to Practice Book § 763. The defendant filed a notice of alibi defense on July 19,1982, naming only Maria Navarro as an alibi witness. Pursuant to Practice Book § 764, the state filed a notice stating the names and addresses of the witnesses it would call to establish the defendant’s presence at the scene of the alleged offense. After both the state and the defendant had rested their respective cases, the defendant moved to open his case to permit Rodriguez to testify as an alibi witness.
The trial court conducted a thorough examination of the defendant and his counsel to determine the merits of the defendant’s motion. The court asked why Rodriguez’ name had not been included in the original notice of alibi. The trial court also noted that defense counsel had “stipulated” earlier in the trial that Rodriguez would not be called as a witness.
The trial court stated that the defendant’s failure to make a timely disclosure of a proffered alibi witness permitted exclusion of the testimony under Practice Book § 766. The court added, however, that Practice Book § 767 indicates that for good cause shown, the judicial authority may grant an exception to the requirements of §§ 763 through 766, and allow the testimony. It concluded, however, that the failure of the defendant to comply with the Practice Book requirements was not excused because the defendant had not shown good cause. It also noted that the defendant had “stipulated” during the trial that he would not call Rodriguez as a witness. The defendant duly excepted.
The defendant claims that under the circumstances he complied with § 763 in a timely fashion and that the trial court failed to consider Practice Book § 765 in rendering its decision. Practice Book § 765 requires that, “[i]f prior to or during the trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under Secs. 763 or 764, the party shall promptly notify the other party or his counsel of the existence and identity of such additional witness.” (Emphasis added.) The
As the state argues, Practice Book § 765 requires that, upon learning of the identity of an additional alibi witness, “the party shall promptly notify the other party or his counsel... of such additional witness.” (Emphasis added.) It is a fundamental rule of statutory construction that where the language of a statute is clear, “ ‘it is assumed that the words themselves express the intent of the legislature . . . and thus there is no need to construe the statute.’ ” State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984). This rule applies with equal force to Practice Book provisions. See State v. Gethers, 193 Conn. 526, 551, 480 A.2d 435 (1984) (Healey, J., dissenting). The language of Practice Book § 765 requires a “party” to disclose the identity of witnesses. Although there is no indication on the record that defense counsel knew of Rodriguez’ alibi testimony prior to filing the defendant’s motion to open, the defendant acknowledged that he knew as early as December 23,1980, the day of the alleged crimes, that Rodriguez could offer alibi testimony. The defendant, a “party,” therefore had a duty to disclose this information prior to trial. We agree with the trial court that the defendant did not comply with either §§ 763 or 765 of the Practice Book and failed to show “good cause” for noncompliance.
The defendant next claims that the trial court erred in rendering its decision on the testimony because it relied on a “stipulation”* ****
We do not disagree with the defendant’s characterization of defense counsel’s role with respect to trial strategy. It is established that “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, supra, 302; State v. Boucino, supra, 214. However, in presenting a defense, the accused, as well as the state, is required to comply with established rules of procedure and evidence designed to assure both fairness and relia
There is no error.
In this opinion the other justices concurred.
“[General Statutes] Sec. 53a-54c. felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
“[General Statutes (Rev. to 1979)] Sec. 53a-54a. MURDER defined. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION. (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
“(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
“(c) Murder is punishable as a class A felony unless it is a capital felony and the death penalty is imposed as provided by section 53a-46a.”
“[Practice Book] Sec. 766.--FAILURE to comply
“Upon the failure of either party to comply with the requirements of Sec. 762, the judicial authority may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. Sec. 762 shall not limit the right of the defendant to testify in his own behalf.”
“Mr. Connor: I could put on the record at this time there is one witness that we are unable to locate. And it turns out my client does not want him called anyway. I can put that on the record.
“The Court: Who is that?
“Mr. Connor: Hector Rodriguez. I had indicated at one time we might call a Hector Rodriguez, your Honor. We have been unable to locate him. And I have gone over this with Mr. Sanchez this morning with the aid of our investigator who speaks Spanish, Mr. Amaldo Nieves. And Mr. Sanchez has indicated to me that he doesn’t want him called anyway. So I wouldn’t ask for a continuance to try to locate him. Is that correct, Mr. Sanchez?
“The Court: Mr. Sanchez, is that a correct statement just made by Mr. Connor?
“The Defendant: Yes.”
“The Court: Well, did you, Mr. Sanchez, did you know about this before last night?
“The Interpreter: About what?
“The Court: About the fact that Mr. Rodriguez had this information, or did you know it before?
“The Interpreter: All the time I knew about it.”
The record indicates that the defendant argued that he had not called Hector Rodriguez as a witness because he did not know where Rodriguez was at the time of trial.
“The Court: Well, what I’m saying is that when he made that statement he said that he did not want to call—he didn’t say he wasn’t able to get a hold of him. He said he did not want to call him. And he said that after
“The Interpreter: All the time I knew he could help me, but I didn’t know where he was.”
We note that even if the defendant had not known of Rodriguez’ whereabouts until the day of the motion to open, this did not relieve the defendant of his duty to disclose under Practice Book § 765. Trial counsel could have sought a continuance pursuant to Practice Book § 981 to enable him to locate Rodriguez.
The defendant does not challenge the trial court’s characterization of the defendant’s statement on the record as a “stipulation.” We do not consider the statements of the defendant or defense counsel to be formal stipulations.