Connecticut Appellate Decisions
STATE v. GALARZA, 97 Conn. App. 444 (2006) 906 A.2d 685
STATE OF CONNECTICUT v. LUIS GALARZA (AC 26646) Appellate
Court of Connecticut
Schaller, Flynn and Stoughton, Js.[fn1]
[fn1] The listing of judges reflects their status on this
court at the time of oral argument.
Syllabus
Convicted of the crimes of murder and capital felony in
connection with the shooting deaths of the victims, R and
V, the defendant appealed. Held:
1. The defendant could not prevail on his claim that the
trial court denied him his state and federal
constitutional rights to confront the witnesses against
him by admitting into evidence a statement that R made
several hours before he was killed; even if the defendant
was denied the right to cross-examine the witnesses, the
admission of R’s statement was harmless beyond a
reasonable doubt given the trial court’s instruction
limiting the use of R’s statement to prove his state of
mind, which the jurors were presumed to have followed, and
because there was sufficient other circumstantial evidence
from which the jury, which weighed the evidence and
assessed the credibility of the witnesses, reasonably
could Page 445 have found beyond a reasonable doubt that
the defendant was responsible for the victims’ deaths.
2. The trial court did not abuse its discretion or deny the
defendant his state and federal constitutional rights when
it precluded defense counsel from cross-examining two
witnesses, A and H, as to whether they had murdered the
victims and from arguing that those witnesses were
responsible for the victims’ murders; although there was
evidence of a rivalry, antagonism and animosity between
the defendant and A arid H, that in and of itself was not
sufficient to constitute direct evidence of third party
culpability so as to make the cross-examination proposed
by the defendant relevant to the case, and although the
defendant was not permitted to argue that A and H were the
“real killers,” his counsel forcefully argued that those
two men had a strong motive to kill R.
3. The defendant’s claim that he was deprived of a fair
trial as a result of prosecutorial misconduct during final
argument to the jury was unavailing; contrary to the
defendant’s claim, the prosecutor did not improperly use
R’s statement for substantive purposes, rather than for
the limited purpose for which it was admitted, and the
prosecutor did not argue facts that were not in evidence,
but rather properly argued evidence presented at trial
that supported the state’s theory of the case.
Argued January 17, 2006
Officially released September 12, 2006
Procedural History
Substitute information charging the defendant with two
counts each of the crimes of felony murder and murder, and
with the crimes of capital felony, conspiracy and
possession of narcotics with intent to sell, brought to the
Superior Court in the judicial district of Fairfield, where
the court, Damiani, J., granted the defendant’s motion to
strike the conspiracy and possession counts; thereafter,
the matter was tried to the jury before Owens, J.;
subsequently, the court, Owens, J., denied the defendant’s
motion to preclude certain evidence and granted the state’s
motion to preclude certain testimony; verdict and judgment
of guilty of two counts of murder and one count of capital
felony, from which the defendant appealed. Affirmed.
Anna-Liisa Joseloff, pro hac vice, with whom were Mark
Rademacher, assistant public defender, and Carmine Perri,
for the appellant (defendant). Page 446
C. Robert Satti, Jr., senior assistant state’s attorney,
with whom, on the brief, was Jonathan C. Benedict, state’s
attorney, for the appellee (state).
Opinion
FLYNN, J.
A jury found the defendant, Luis Galarza, guilty of two
counts of murder in violation of General Statutes §
53a-54a (a) and one count of capital felony in violation of
General Statutes § 53a-54b (8).[fn2] The trial court
merged the two counts of murder into the count of capital
felony and sentenced the defendant to life imprisonment
without the possibility of parole. The defendant appealed
to our Supreme Court, which transferred the appeal to this
court pursuant to General Statutes § 51-199 (c).
On appeal, the defendant claims that the trial court denied
him the constitutional right (1) to confront witnesses
against him by admitting into evidence a statement made by
one of the victims hours before he was murdered and (2) to
present a defense and the right to the effective assistance
of counsel by limiting counsel’s (a) cross-examination of
certain witnesses and (b) final argument and that (3) the
prosecutor committed misconduct during closing argument. We
affirm the judgment of the trial court.
This case concerns the murders of half-brothers Magdiel
Rivera, Jr., and Luis Velez. The jury reasonably could have
found the following facts. On the afternoon of October 14,
1999, Maggie Montes and her husband, Edwin Bonilla, were at
the Trumbull Mall and encountered the victims, individuals
with whom they were acquainted. Montes testified that
everyone was happy. Rivera received a page, however, and
then made a telephone call. As a result of the telephone
call, Rivera’s Page 447 expression changed. He left the
mall alone between 4 and 5 p.m. Montes and Bonilla remained
at the mall and later returned with Velez to their home in
Bridgeport, where Rivera joined them. The four individuals
got into Rivera’s brown-colored van and drove about
Bridgeport. While they were in the van, Rivera received
another page and drove to a bar called the Latin Spirit
Club. In Montes’ opinion, Rivera was not acting like
himself.
Montes had never been to the Latin Spirit Club before and
described it as being a place in which she was
uncomfortable. Most of the patrons were men between the
ages of seventeen and twenty-five, wearing hooded
sweatshirts and army fatigue pants with firearms clipped to
them. Montes was nervous because everyone looked suspicious
and was whispering and looking over their shoulders. Montes
stood by the bar and watched Rivera walk to the back of the
room. The door to the restroom was ajar, and Montes could
see a figure standing at the door. The door was opened for
Rivera to enter and closed behind him. Rivera remained in
the restroom for ten to fifteen minutes. When he exited,
Rivera told Montes, Bonilla and Velez to leave the Latin
Spirit Club immediately. Montes described Rivera as looking
shocked. Bonilla walked beside Rivera as they proceeded to
the van. Rivera and his companions returned to Montes’
home, where they sat in the van talking. The substance of
their conversation concerned what Rivera had heard in the
restroom, an alleged plot to take his life. See part I.
Montes told Rivera three or four times not to go where he
had stated he intended to go. Montes and Bonilla entered
their apartment shortly after midnight, leaving the victims
in the van.
At approximately 12:30 a.m. on October 15, 1999, the
victims arrived at 116 Corn Tassel Road, Bridgeport, a
private home, and parked the van on the street in front of
the house. At the time, the victims were in possession
Page 448 of a large quantity of cocaine in powder form,
which they intended to process into crack cocaine with the
assistance of someone in the house. The approximate value
of the cocaine was $40,000 to $50,000. About an hour after
the victims entered the residence, they left with the crack
cocaine. Very soon thereafter, the residents heard gunshots
coming from the street and telephoned the police. Others in
the neighborhood also telephoned the police about hearing
gunshots.
Benjamin Mauro, a patrol officer, was dispatched to the
residence at about 2 a.m. He found the victims, shot
multiple times, inside the van. The window of the passenger
door had been shot out. Rivera’s body was in the operator’s
seat with the keys in his hand. Velez’ body was on the
floor between the front seats. Although no murder weapon
was recovered, ten spent nine millimeter shell casings and
thirteen bullets and bullet fragments were found at the
scene.[fn3] Ballistics tests revealed that the bullets were
all fired from the same gun. A forensic medical examination
of the victims’ wounds demonstrated that gunshots had been
fired through the window of the passenger’s side of the
van. The injuries caused by bullets on Velez’ body revealed
that he had turned away from the window when the gunshots
were fired. The police recovered no drugs or guns at the
scene.
No one witnessed the murders. The defendant, however, was
arrested for the crimes on November 15, 2001, on the basis
of statements made by numerous individuals acquainted with
both the defendant and the victims. The state prosecuted
the defendant on the theory that he had murdered the
victims as the result of an escalating dispute between him
and Rivera as to the distribution of illegal narcotics in a
particular area of Page 449 Bridgeport.[fn4] The
defendant’s theory was that others were responsible for the
deaths of the victims. The jury found the defendant guilty
of two counts of murder and one count of capital felony.
I
The defendant’s first claim is that the court denied him
his state[fn5] and federal constitutional rights to
confront witnesses against him by admitting into evidence a
statement Rivera had made several hours before he was
killed. Assuming without deciding that the defendant was
denied the right to cross-examine the witness, we conclude,
nonetheless, that the admission of the statement was
harmless beyond a reasonable doubt because there was
sufficient other circumstantial evidence from which the
jury reasonably could have concluded beyond a reasonable
doubt that the defendant was responsible for the death of
the victims.
The following facts are relevant to this claim. At trial,
Bonilla testified as to what Rivera had told him after they
left the Latin Spirit Club:[fn6] “We got in the van and
Page 450 sat down, and I asked him, `Why you look like
that? Why you upset?’ He said, `Because I just found out
that somebody just paid to kill me.’ And I said, `Who? What
you talking about?’ And he said, `[The defendant] just paid
a guy I seen in the bathroom.’ I said, `Who is that?’ I
wanted to know who was in the bathroom. And he said, `[Jose
Arciniega]. He paid him. He was my friend. And he said that
. . .'”[fn7] At the conclusion of Bonilla’s testimony,[fn8]
the court gave a limiting instruction, telling the jury
that Rivera’s statement was not admitted for the truth of
the matter.
The defendant contends that the admission of Rivera’s
statement into evidence deprived him of the right to
confront the witnesses against him. A conclusion that a
defendant’s constitutional rights were violated by the
admission of an out-of court statement is subject to
harmless error analysis, which will result in a new trial
only if the evidence admitted was not harmless beyond a
reasonable doubt. State v. Peeler, 271 Conn. 338, 399, 857
A.2d 808 (2004), cert. denied, ___ U.S. ___, 126 S.Ct. 94,
163 L.Ed.2d 110 (2005). The state bears the burden of
proving that the evidence was harmless beyond a reasonable
doubt. State v. Carpenter, 275 Conn. 785, 832, 882 A.2d 604
(2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1578, 164
L.Ed.2d 309 (2006). We conclude, on the basis of our review
of the entire trial transcript including the court’s
limiting instruction to Page 451 the jury, that the
admission of the evidence was harmless beyond a reasonable
doubt.
“Whether a constitutional violation is harmless in a
particular case depends upon the totality of the evidence
presented at trial. . . . If the evidence may have had a
tendency to influence the judgment of the jury, it cannot
be considered harmless.” (Internal quotation marks
omitted.) Id. “Whether such error is harmless in a
particular case depends upon a number of factors, such as
the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must examine
the impact of the evidence on the trier of fact and the
result of the trial.” (Citations omitted; internal
quotation marks omitted.) State v. Colton, 227 Conn. 231,
254, 630 A.2d 577 (1993), on appeal after remand, 234 Conn.
683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116
S.Ct. 972, 133 L.Ed.2d 892 (1996).
The fact that the jury found the defendant guilty weighs
heavily in our decision because the jury decided the
credibility of the witnesses. The jury had to decide which
version of a witness’ testimony was credible, that which
was presented by the state or that which was revealed
during rigorous cross-examination by defense counsel. There
were no eyewitnesses to the crimes, and the issue at trial
was the identity of the perpetrator.
Beyond the photographs depicting the physical evidence of
the crime scene, the autopsy and ballistics reports, the
state’s case was one of circumstantial evidence adduced
from witnesses familiar with both the defendant and the
victims. Save for the testimony of law enforcement
personnel and others in the criminal Page 452 justice
system, the witnesses were either convicted felons or their
wives or paramours who were involved in or benefited from
illegal drug sales. As counsel for both the state and the
defendant elicited, each of these witnesses had a motive
for testifying, primarily an expectation that the sentence
the felon currently was serving or the one about to be
imposed would be reduced in exchange for testimony
favorable to the state. Two of the witnesses agreed to
provide statements to the police after listening to a tape
recording in which the defendant accused them of murdering
the victims. The jury heard testimony about illegal drugs
and disputes between the men who sold illicit drugs for
either the defendant or Rivera, sometimes both. Nine
millimeter guns were a part of everyday life, as were
attempted assassinations. The witnesses spoke of deals and
double deals, alliances and counteralliances, the mothers
of their children and their girlfriends. Most of the
witnesses lived by their wits and generally demonstrated
poor judgment or lack of moral character. In short, the
witnesses did not possess those qualities that generally
indicate to a law abiding society an individual’s penchant
for truthfulness.
The jury in this case had an enormous task in weighing the
evidence to assess the credibility of the witnesses. That
task, however, is the raison d’etre of our jury system. See
State v. McFarlane, 88 Conn. App. 161, 169, 868 A.2d 130
(“responsibility of the jury to weigh conflicting evidence
and to determine credibility”), cert. denied, 273 Conn.
931, 873 A.2d 999 (2005). As this court and our Supreme
Court have stated so many times, it is not our function to
second-guess a jury verdict founded upon credibility, as
credibility is not something that can be gleaned from the
written page. See State v. Hunt, 72 Conn. App. 875, 884,
806 A.2d 1084, cert. denied, 262 Conn. 920, 812 A.2d 863
(2002). The transcript of this case, more than most, Page
453 exemplifies that truism, as defense counsel repeatedly
pointed out inconsistencies in and ulterior motives for the
testimony of witnesses. See State v. Colton, supra, 227
Conn. 249 (defense counsel is permitted to expose to jury
facts from which jurors could draw inferences relating to
credibility of witnesses). We are aware that in addition to
listening to the testimony of the witnesses, much of which
they asked to have read back to them, the jurors had the
opportunity to observe the defendant as the witnesses
testified. See State v. Hunt, supra, 884.
The defendant was given a full and effective opportunity
to cross-examine the witnesses. During his
cross-examination of Bonilla, defense counsel demonstrated
why Arciniega’s statement to Rivera lacked credibility;
although Arciniega had represented that he would shoot the
defendant, rather than Rivera, the defendant was still
alive. See footnote 7.
Furthermore, the court denied the defendant’s motions for
a judgment of acquittal at the conclusion of the evidence
and for a new trial. “The existence of conflicting evidence
limits the court’s authority to overturn a jury verdict
[and] . . . [t]he jury is entrusted with the choice of
which evidence is more credible and what effect it is to be
given.” (Internal quotation marks omitted.) Childs v.
Bainer, 235 Conn. 107, 116, 663 A.2d 398 (1995). The court
is in a better position than we, on the basis of the
written record, to gauge the tenor of trial and to detect
factors, if any, that could influence the jury. State v.
Davis, 61 Conn. App. 621, 633, 767 A.2d 137, cert. denied,
255 Conn. 951, 770 A.2d 31 (2001).
We also note that the court instructed the jury
immediately after Bonilla testified that Rivera’s statement
was not being offered for the truth of the matter, but
merely as evidence of his state of mind. Unless there is
some indication to the contrary, a jury is presumed Page
454 to follow the court’s instruction.[fn9] State v.
Vargas, 80 Conn. App. 454, 468, 835 A.2d 503 (2003), cert.
denied, 267 Conn. 913, 840 A.2d 1175 (2004).
To whatever extent, if any, that Rivera’s statement was
evidence of his then state of mind, it was cumulative. Both
Montes and Bonilla testified as to Rivera’s demeanor, which
they observed firsthand, when he left the restroom. See
State v. Thomas, 205 Conn. 279, 285, 533 A.2d 553 (1987)
(nonassertive conduct such as shaking is not hearsay).
There was no controversy that the defendant was a known
drug dealer who claimed the right to sell his drugs in a
certain part of east Bridgeport. It also is clear that the
defendant was unhappy that Rivera and his associates were
selling drugs in the territory he claimed. A number of
witnesses testified that the defendant bragged about
shooting the victims, and there was evidence from which the
jury could infer not only that the defendant had a motive
to kill Rivera, but also the means to do so.
Alan Lane, who sold drugs for the defendant, saw him with
guns including a nine millimeter gun. A few days before
Halloween, 1999, the defendant approached Lane and offered
him $10,000 to murder a man nicknamed Fuji,[fn10] who was
seeing the mother of the defendant’s children.[fn11] When
Lane refused, the defendant stated that he would do it
himself, just as he had done to two men who had tried to
take his block away. The defendant wanted to know if Lane
had read about the murders in the newspaper. The defendant
told Lane that he and a man named Danny had caught the
victims Page 455 in a van at Beardsley Park and “lit it
up.” Lane was a convicted felon who hoped to reduce the
term of the sentence he was serving in exchange for his
testimony. He also bore a grudge against the defendant, who
failed to help him post bail.
Jose Alvarado, who also had a motive to kill Rivera; see
part II; gave a statement to the police about the
statements the defendant had made to him.[fn12] According
to Alvarado, who sold drugs for the defendant, the
defendant did not like Rivera. The defendant told Rivera
that he ran the east side of Bridgeport and that Rivera
should keep his people in his spot. The defendant provided
Arciniega with drugs and money. The defendant bragged that
he had the money to pay anyone to do anything he wanted.
The defendant first said that he would pay Arciniega
$10,000 to kill Rivera because he would do it cheaply. If
the defendant could get Arciniega’s Porsche out of the
garage, Arciniega would do anything for the defendant.
Alvarado saw the defendant with several guns, including a
nine millimeter Taurus handgun. Alvarado heard the
defendant offer Arciniega money to kill Rivera. When
Alvarado spoke to the defendant about the victims’ murders,
the defendant responded, “What you want me to do? F____
them niggers.”
Roberto Hernandez, another witness who had a motive to
kill Rivera; see part II; testified about the drug rivalry
between the defendant and Rivera. Hernandez, in fact, was
selling drugs for both men. Hernandez began his
relationship with Rivera in August or September, 1999.
During that period of time, in the presence of Arciniega,
the defendant confronted Hernandez, while Page 456 holding
a gun to his face, saying that he did not want Hernandez to
sell Rivera’s drugs on the defendant’s block. After the
murders, the defendant told Roberto Hernandez that “Jose
didn’t hesitate to kill him. . . . Jose took the drugs and
gave him the guns. . . . Jose didn’t hesitate to kill `em.
He lit `em up. . . . Jose lit up the van. . . . Rivera’s
little brother tried to run and got shot up.” Arciniega
took the drugs and money and the defendant took the guns.
On direct examination, Carlos Hernandez testified that he
knew the defendant and spent time at the grocery store the
defendant owned, Luis Market. Prior to the murders, the
defendant related to Carlos Hernandez that he and Rivera
had had a shoot out over drug money. Carlos Hernandez was
at the Latin Spirit Club the night before the murders and
saw both Rivera and Arciniega there. Carlos Hernandez read
about the murders in the newspaper. When he saw the
defendant the next day, he asked him if he had seen the
newspapers. Carlos Hernandez testified that “[the
defendant] started laughing and he told me that he was the
one that did it. He pointed and went like this.[fn13] And
he just told me to keep my mouth shut. He was, like, don’t
say nothing, and he winked at me.” On redirect examination,
Carlos Hernandez testified that “when he shot [Rivera], he
shot him in the lower bottom of his head. Right here. That
he was trying to take — they robbed him [for the
cocaine]. He was trying to take his chain, but he panicked
because when he was asking Ho, they both panicked. And he
didn’t want to take the chain. He was drunk at Club
Hollywood. He told me he shot the defendant right here. And
shot him on the side, too.”[fn14] Page 457 According to
Carlos Hernandez, the murder was over a drug debt, not a
turf war and Arciniega was a fifty-fifty partner with the
defendant.
The jury was aware that Carlos Hernandez was a police
informant who first discussed this case with the police in
November, 1999, at which time he indicated that another
individual was responsible for the murders. He did not tell
the police about his postmurder conversation with the
defendant at that time. Before the trial of this case,
Carlos Hernandez contacted the police to reveal his
conversations with the defendant, hoping that his testimony
would influence positively the fifteen to twenty year
sentence he was facing in federal court.
Detective Gregory Nilan of the Stratford police department
was a member of the Drug Enforcement Administration task
force. He arrested the defendant for possession of
narcotics on November 5, 1999. The defendant provided
reliable information about drug trafficking in the
Bridgeport area. On November 8, 1999, the defendant told
Nilan that “he had information that he knew there was two
Hispanic males that had been shot in the north end of
Bridgeport, and that he had heard that it was a hit out of
New York because they owed money. And then he indicated to
me he knew there was a trap inside of the vehicle that the
deceased were found in.”
Jesus Lugo and the defendant were incarcerated together at
the Walker Reception/Special Management Unit correctional
facility. The defendant confided in Lugo that he had
committed a robbery in New York and urged Lugo to inform
the authorities in order to get a reduction on his prison
sentence. Lugo did so and received a six month reduction of
his sentence. The defendant also told Lugo about the
subject murders. Lugo testified that the defendant said
that “there was two kids that were always selling on one of
his streets. Page 458 I guess he owned the street,
whatever, he sold drugs on. And the two kids were selling
on his street. And he warned them not to sell on the
street. . . . He basically told me he had them killed for
selling on his street. . . . Shot `em up in a van. They was
in a van. They was leaving the street getting into a van.
And he said one — him and one of his friends shot
the van up. . . . Drugs. And he told me when the kid died,
he had the keys to the van in his hands. . . . He said when
they shot him up, they robbed the kids for the drugs they
had in the van . . . He said he had paid the kid that did
the murder with him for helping him kill the two kids . . .
Gs; that’s just thousands.” Lugo testified that he knew
about the murders for some time before passing it on to the
authorities in January, 2001. At that time, Roberto
Hernandez was being blamed for the murders. Lugo was
willing to pass on the information about the New York
robbery right away, but not the murders, because he was
hoping to become one of the defendant’s associates in the
drug trade.
Steven Necaise knew the defendant and had visited him in
his grocery store. The defendant told Necaise that the
police were coming to his house and his mother’s house to
discuss the subject murders. Just prior to trial, Necaise
asked his lawyer to approach the police to provide a signed
written statement in which he related that the defendant
had told him that he had committed the murders and that
cocaine was involved. The defendant was shaken up.
Approximately one month before trial, Necaise saw the
defendant outside a prison chapel. The defendant asked him
why he had gone to the state’s attorney and warned him not
to sign anything. The defendant was emotional and nervous.
There were numerous state’s witnesses, who, if believed,
connected the defendant to the commission of the charged
crimes. Page 459
For the foregoing reasons and on the basis of the
conflicting testimony that was presented to the jury for
its credibility determination, we conclude that Bonilla’s
testimony concerning Rivera’s out-of-court statement was
harmless beyond a reasonable doubt.
II
The defendant’s second claim is that the court violated
his state[fn15] and federal constitutional rights to
present a defense, to the effective assistance of counsel
and to the evenhanded application of the rules of evidence
because he was not permitted to ask Alvarado and Roberto
Hernandez whether they had murdered the victims or to argue
that those witnesses were responsible for the victims’
murders. The defendant argues that the court improperly
based its ruling on the lack of direct evidence that the
witnesses were responsible for the deaths of the victims.
We disagree.
During opening statements to the jury, defense counsel
argued, “[A]t least two of these people that were within
the circle of individuals [the prosecutor] was referring
to, at least two of them are, in all likelihood, the real
killers in this case. . . .”[fn16] Defense counsel
identified Alvarado and Roberto Hernandez as the real Page
460 killers. At the end of defense counsel’s statement, the
state asked the court to take curative measures with
respect to what it considered to be improprieties in
defense counsel’s opening statement, including the argument
that Alvarado and Roberto Hernandez were the real killers.
The state asked the court to rule on the motion in limine
it had filed previously. Defense counsel argued that there
was sufficient circumstantial third party evidence to
assert third party culpability. The court stated that it
would give the usual jury instruction that the arguments of
counsel are not evidence, but would reserve its decision
with respect to the argument about who the real killers
were.
The argument of defense counsel is grounded in events that
took place approximately two or three weeks before the
victims were murdered. Rafael Colon was one of the first
witnesses to testify. On or about September 22, 1999, he,
Alvarado and Roberto Hernandez were at the home of Jose
Valentine, where guns, including nine millimeter guns, were
present.[fn17] At that time, Colon overheard Alvarado
speaking on the telephone about doing something bad. At the
conclusion of the telephone conversation, Alvarado and
Roberto Hernandez excitedly put on bulletproof vests and
armed themselves. Colon asked them whom they were going to
get. Alvarado said, “[Rivera] . . . a motherf____er named
[Rivera].” Alvarado and Roberto Hernandez left in a blue
Honda motor vehicle. Colon did not hear the voice of the
person to whom Alvarado was speaking or ask Alvarado to
whom he had spoken. Colon believed that Alvarado and the
defendant were cousins and best friends. Colon assumed,
therefore, that Alvarado had been talking to the defendant
because whenever Rivera was on the east side of Bridgeport,
someone was watching him and talking to Alvarado. Page 461
Colon was upset by what Alvarado said because Rivera was
his friend. Colon later met Rivera and informed him that
two men were going to the east side to kill him and that
one of them was the defendant’s cousin. Rivera had a nine
millimeter handgun with him. The next afternoon, Rivera
told Colon that he had contacted Alvarado. The victims
attempted to shoot Alvarado, but the gun jammed. Rivera
burned Alvarado’s motor vehicle.
On cross-examination, the defendant elicited evidence that
Colon first talked to the police about the murders in
November, 1999,[fn18] at which time, he identified
Valentine as the person who was on the telephone with
Alvarado. Also, in a written statement he gave to the
police in June, 2001, Colon said that an individual had
telephoned Alvarado. The first time Colon identified the
defendant as the person with whom Alvarado was speaking was
at trial.
Alvarado also testified about the incident. Although he
denied Colon’s testimony about the events at Valentine’s
house, he admitted that he drove a blue Honda motor
vehicle. Because Alvarado could not remember what he had
told the Bridgeport police in two signed statements, they
were read to the jury pursuant to State v. Whelan, 200
Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107
S.Ct. 597, 93 L.Ed.2d 598 (1986). Alvarado’s December 2,
1999 statement concerned the burning of the Honda.
According to that statement, at approximately 8:30 p.m. on
or about September 22, 1999, Alvarado was driving the Honda
on Ogden Street when Page 462 he saw the victims in the
van. Alvarado and Rivera exchanged looks. Alvarado turned
his vehicle around and was in his vehicle talking to some
women on the street when he saw Rivera’s brown van coming
toward him. Roberto Hernandez told Alvarado to leave
quickly. They drove through the streets of Bridgeport with
the victims following them for a time.
Alvarado then partied with Roberto Hernandez near Seaside
Park but took him home about 11:30 p.m. Thereafter,
Alvarado went to visit Valentine at the Cambridge
Apartments. As Alvarado was parking his car, he looked out
the operator’s window and saw a burgundy Eurosport wagon
with two Hispanic males in it. Velez was pointing a gun at
Alvarado, and Rivera was telling him to shoot. Alvarado
jumped out of the passenger door, ran behind the apartments
and jumped a fence. The victims chased him. When Alvarado
returned to where he had left the Honda, it was missing.
The victims had taken and burned it. Two days later, Rivera
paid Alvarado $800 for the Honda and said there had been a
misunderstanding. Roberto Hernandez was not with Alvarado
when Velez pointed a gun at him, but he saw the Honda after
it had been destroyed.
After Alvarado’s direct testimony, the state asked the
court to preclude defense counsel from cross-examining
Alvarado and Roberto Hernandez as to whether they killed
the victims. The state made an offer of proof as to the
testimony Roberto Hernandez would offer. The state argued
that the cross-examination it sought to preclude was third
party suspect evidence and that the defendant had no direct
evidence linking Alvarado and Roberto Hernandez to the
murder of the victims. Defense counsel contended that
Valentine, Alvarado and Roberto Hernandez conspired to kill
Rivera and that Alvarado and Roberto Hernandez had a motive
to blame the defendant because he was talking to the
Federal Bureau of Investigation about drug dealing in Page
463 Bridgeport. Defense counsel also argued that there was
direct evidence that three weeks before the victims were
murdered, Alvarado and Roberto Hernandez were stalking
Rivera. After hearing the arguments of counsel and
reviewing State v. Colton, supra, 227 Conn. 258, and State
v. Ortiz, 252 Conn. 533, 563-64, 747 A.2d 487 (2000), the
court precluded defense counsel from making the claim in
the presence of the jury that Alvarado and Roberto
Hernandez were the individuals who had murdered the
victims. The court, however, permitted defense counsel to
otherwise impeach the credibility of Alvarado and Roberto
Hernandez.[fn19]
During cross-examination of Alvarado and Roberto
Hernandez, defense counsel was able to elicit evidence that
neither of the witnesses voluntarily went to the police to
accuse the defendant of having killed the victims. The
police told both Alvarado and Roberto Hernandez that they
would be charged with the murders unless they cooperated
with the police investigation. Although the defendant was
acting as an informant for the Federal Bureau of
Investigation, Roberto Hernandez denied that he accused the
defendant of murdering the victims as “payback.” While they
were in prison, Alvarado and Roberto Hernandez discussed
the murder of the victims and the defendant’s involvement
therein with inmates who testified at trial. Both Alvarado
and Roberto Hernandez refused to talk to defense counsel or
a private investigator unless the other was present.
The defendant has framed his second claim, in part, on
constitutional grounds. Our resolution of his claim, Page
464 however, turns on evidentiary grounds. “Our Supreme
Court has stated that the defendant’s constitutional right
to present a defense does not require the trial court to
forgo completely restraints on the admissibility of
evidence. . . . Generally, an accused 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. Eagles, 74
Conn. App. 332, 335, 812 A.2d 124 (2002), cert. denied, 262
Conn. 953, 818 A.2d 781 (2003).
“[A defendant has] the right to present a defense [and]
the right to present the defendant’s version of the facts
as well as the prosecution’s to the jury so that it may
decide where the truth lies.” (Internal quotation marks
omitted.) State v. Cerreta, 260 Conn. 251, 261, 796 A.2d
1176 (2002). In exercising his constitutional right to
present a defense, “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.” (Emphasis added; internal quotation marks
omitted.) State v. Ferguson, 260 Conn. 339, 354, 796 A.2d
1118 (2002). “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.”
(Internal quotation marks omitted.) State v. Page 465
Baker, 50 Conn. App. 268, 279, 718 A.2d 450, cert. denied,
247 Conn. 937, 722 A.2d 1216 (1998).
“The admissibility of evidence of third party culpability
is governed by the rules relating to relevancy. . . . No
precise and universal test of relevancy is furnished by the
law, and the question must be determined in each case
according to the teachings of reason and judicial
experience. . . . 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.” (Internal quotation marks
omitted.) State v. Rivera, 70 Conn. App. 203, 211, 797 A.2d
586, cert. denied, 261 Conn. 910, 806 A.2d 50 (2002).
“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.
Third party culpability cases decided by our Supreme Court
guide our decision.[fn20] Our Supreme Court reversed the
conviction of the defendant in State v. Echols, 203 Conn.
385, 524 A.2d 1143 (1987), where the trial court excluded
evidence of misidentification of the defendant by another
victim of a similar sexual assault committed in the same
area as the crime that was being prosecuted. Both victims
gave similar descriptions of the physical characteristics
of the perpetrator’s face. After the second victim
identified the defendant from a photographic Page 466
array, the first victim also selected the defendant’s
photograph from a similar array. The defendant, however,
was incarcerated at the time of the first sexual assault.
Id., 388. Our Supreme Court concluded that “[i]n a case . .
. where the identity of the assailant is essentially the
sole issue at trial, evidence that a third party lookalike
may have committed the crime with which the defendant is
charged is highly relevant.” Id., 393-94. Direct evidence
similar in nature to the misidentification by the first
victim is not present in the case before us.
State v. Boles, 223 Conn. 535, 613 A.2d 770 (1992), is
nearly on point with the issue in this case. In Boles, the
victim’s decomposing body was found in a wooded area several
days to two weeks after she was murdered. Id., 537-38.
There were two eyewitnesses to the defendant’s beating of
the victim with a crowbar, and one of the witnesses
testified that he had aided the defendant in putting the
victim’s body in a motor vehicle. At trial, the defendant
wanted to present the testimony of two police officers who
had investigated two complaints of kidnapping, sexual
assault and unlawful restraint by a third party, which were
made by the victim one month and one week prior to her
death. Our Supreme Court upheld the trial court’s decision
to preclude the defendant from presenting the officers’
testimony as to the complaints related to the third party
because there was no evidence that the complaints were even
“vaguely, connect[ed]”; (internal quotation marks omitted)
id., 548; to the victim’s death. Although the proffered
testimony of the officers “indicated animosity between [the
third party] and the victim, and that [the third party]
might possibly have had a reason to harm the victim, it
went no further. It would be sheer speculation to draw from
the evidence presented an inference that [the third party]
had killed the victim.” Id., 549. Unless there is a direct
connection between the third party Page 467 and the crime
charged, “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.” (Internal quotation marks omitted.) Id.,
549-50.
Although there was evidence of a rivalry, antagonism and
animosity between the defendant and Alvarado and Roberto
Hernandez, that in and of itself was not sufficient to
connect them directly with the murder of the victims. In
order to have cross-examined Alvarado and Roberto Hernandez
as to whether they had killed the victims and to argue that
theory to the jury, the defendant was required to make an
offer of proof directly linking them with the crimes. See
State v. West, 274 Conn. 605, 625, 877 A.2d 787 (not enough
to show that another had motive to commit crime), cert.
denied, ___ U.S. ___, 126 S.Ct. 775, 163 L.Ed.2d 601
(2005). Because there was no direct evidence of third party
culpability, the cross-examination proposed by the
defendant was irrelevant in this case. We note, however,
that during cross-examination, the defendant was able to
bring out that Alvarado and Roberto Hernandez were suspects
in the case at one time.
As to the defendant’s claim that he was not permitted to
argue that Alvarado and Roberto Hernandez were the “real
killers,” his counsel forcefully argued that these two men
had a strong motive to kill Rivera.[fn21] We Page 468
therefore cannot say that the defendant was denied the
effective assistance of counsel or the right to present a
defense by the court’s limiting the scope of his
cross-examination and final argument. We therefore conclude
that the court did not abuse its discretion by granting the
state’s motion to preclude.
III
The defendant’s last claim is that the prosecutor
committed misconduct during final argument to the jury.
Specifically, the defendant argues that the state made
substantive use of Rivera’s statement to Bonilla, rather
than for its limited purpose of showing Rivera’s state of
mind.[fn22] See part I. We conclude that there was no
prosecutorial misconduct during closing argument.
The following facts are relevant to our review. Prior to
closing argument, defense counsel asked the court to
instruct the prosecutor not to argue Rivera’s statement for
its truth, i.e., that the defendant had hired Arciniega to
kill Rivera. The court did not give the requested
instruction. During the state’s final argument in chief,
the prosecutor reminded the members of the jury that they
were to decide the facts, thanked them for their commitment
of time to the difficult task, outlined the charges in the
information and reminded them Page 469 of the testimony
from the police officer who first responded to the scene of
the victims’ death. He also stated that there was no
dispute that the victims had died as a result of gunshot
wounds by homicide and that the only issue in the case was
the identity of the person or persons who had killed the
victims. He discussed the biases, prejudices and motives of
the witnesses who testified and argued that the defendant,
a drug dealer, had a motive to kill the victims because
Rivera was intruding on his territory to sell his own
drugs. He also set forth the evidence that he considered
uncontradicted. He made two references to Rivera and the
Latin Spirit Club.
The prosecutor argued: “On the night of the killing, you
have testimony presented [that] there was a meeting at the
Latin Spirit with Jose Arciniega. That is not
[contradicted] by another witness.
“And then you have the testimony of Mr. Hernandez and Mr.
Alvarado. Now, you recall Mr. Alvarado’s testimony on the
first day of examination, when I was speaking with him. He
was pressured into this statement. The so-called August 14
statement, where he lays out the money of $10,000 to pay
Arciniega, but he might work cheaper, and the defendant
admitting he committed the crimes, that he had the beef
with Mr. Rivera. Remember he was pressured? You hear any
other evidence he was pressured? Matter of fact, you heard
the opposite of [Robert] Johnson, the patrol officer was
with him the whole time. He wasn’t pressured. If you take a
look at statement, I believe state’s exhibit 81, when he
spoke with the police, he said, `I’m here to tell the
truth.’ . . .” Contrary to the defendant’s assertion, we do
not consider the juxtaposition of these arguments to imply
a substantive use of Rivera’s statement. The first
paragraph represents a statement of fact. The second is an
attack on the defendant’s having elicited evidence that
Alvarado was pressured to give the police a statement.
Page 470
The prosecutor thereafter, in an apparent anticipation of
the argument the defendant would make to discredit the
state’s witnesses, contended: “You have a right to consider
[that] no witnesses came into court today and said that the
accused was at a specific place in the city of Bridgeport,
or as [defense counsel] said on opening statement, a
thousand miles away at the time of these crimes. You know
that the accused has told people that he was [at the scene]
with Jose Arciniega. You know Jose Arciniega, within a
couple of hours of the homicides, was meeting with the
victim. And Mr. Rivera came out of that meeting with people
with guns and camouflage shaken up and upset. You heard the
people describe his emotional state. You have a right to
consider those factors.” Evidence was presented at trial
that the defendant and Arciniega were at the scene of the
murders. As to the reference to the meeting at the Latin
Spirit Club, the prosecutor emphasized Rivera’s emotional
state.
Before closing, the state reminded the jurors that they had
the right to rely on both direct and circumstantial
evidence. It also told them that the defendant was the
person with the motive and opportunity to kill the victims.
It also recapped the testimony of the detective, Nilan,
that the defendant early on tried to blame the victims’
murders on two men from New York.
The following argument made by defense counsel is also
relevant to our analysis. “Edwin Bonilla, Maggie Montes,
okay. This crazy thing they claim happened over at Latin
Spirit. Do you believe that? Do you believe that actually
happened? You got Bonilla. How many stories [did] he tell?
. . . He says he sees Magdiel Rivera go into a bathroom
with a guy who is bald. And the guy who is bald told him,
`I been hired to kill you, but I’m not going to do it. I’m
going to turn the gun on [the defendant].’ Okay. . . .
[W]hat’s the significance of that? If anything, it tells you
the guy is obviously Page 471 making up some kind of a
story, already trying to do something to curry favor with
[Rivera]. Why is that automatically evidence, and how could
you believe it happened?”
In its rebuttal argument, the state mentioned October 14,
1999, and Bonilla in a recitation of evidence in the case.
“October 14, the Latin Spirit. The Latin Spirit. Down on
November 2, 1999, based on defendant’s exhibit C, which you
will have with you, . . . Bonilla gives his first
statement, and he mentioned the name of [the defendant]. He
mentioned [the defendant] was hired to kill someone.
[Defense counsel] alluded to this in his closing argument.”
A prosecutor may respond to the argument of defense counsel
during rebuttal. State v. Fauci, 87 Conn. App. 150, 173-76,
865 A.2d 1191, cert. granted on other grounds, 273 Conn.
921, 871 A.2d 1029 (2005).
In summation, the state argued its theory: “This is a
case, ladies and gentlemen, where the defendant had the
motive to kill the victims; that acting with that motive,
he armed himself. And you might recall, they set up a drug
deal with Alvarado[fn23] and then found out where these men
would be. He then went over to that place, shot and killed
two men by the use of a firearm, and in doing so, that is
that shooting with the firearm, intended to case their
death. Two of them killed at the same time, in the course
of the same transaction. And in the course of that crime,
they took the property of the victims, and that’s the
robbery.”
On appeal, the defendant claims that the state’s closing
argument was improper, but he failed to object to the
argument at trial and asks us to review his claim pursuant
to State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626
(2004), citing the factors to be considered Page 472 as
those established in State v. Williams, 204 Conn. 523, 540,
529 A.2d 653 (1987). Before we address the Williams
factors, we must determine whether the final argument of
the prosecutor was, in fact, misconduct. See State v.
Jacobson, 87 Conn. App. 440, 456-57, 866 A.2d 678, cert.
granted on other grounds, 273 Conn. 928, 873 A.2d 999
(2005). On the basis of our close reading of the transcript
of the parties’ final arguments, we conclude that the
prosecutor was not guilty of misconduct, as his arguments
cannot be construed as having used Rivera’s statement for
substantive purposes.
“First, we determine whether the challenged conduct was
improper.” Id. “[B]ecause closing arguments often have a
rough and tumble quality about them, some leeway must be
afforded to the advocates in offering arguments to the jury
in final argument. [I]n addressing the jury, [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something must
be allowed for the zeal of counsel in the heat of
argument.” (Internal quotation marks omitted.) Id., 457.
Just as we do not review the court’s instruction to the
jury in isolation, we must consider the arguments of
counsel in the context of the entire trial. A sentence here
and a sentence there taken out of context may appear to be
misleading or without the benefit of facts in evidence.
Again, we note that words on the written page cannot
approximate passion, tone of voice, facial expressions and
gestures. When defense counsel fails to object, especially
defense counsel who tried the case aggressively, we take
note. “The defendant, therefore, presumably did not regard
those remarks . . . as seriously prejudicial at trial.”
(Internal quotation marks omitted.) State v. Chasse, 51
Conn. App. 345, 356, 721 A.2d 1212 (1998), cert. denied,
247 Conn. 960, 723 A.2d 816 (1999). Page 473
“While a prosecutor may argue the state’s case forcefully,
such argument must be fair and based upon the facts in
evidence and the reasonable inferences to be drawn
therefrom. . . . Consequently, the state must avoid
arguments which are calculated to influence the passions or
prejudices of the jury, or which would have the effect of
diverting the jury’s attention from [its] duty to decide
the case on the evidence.” (Internal quotation marks
omitted.) Id., 357-58. “Closing arguments of counsel,
however, are seldom carefully constructed in toto before
the event; improvisation frequently results in syntax left
imperfect and meaning less than crystal clear. While these
general observations in no way justify prosecutorial
misconduct, they do suggest that 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
lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.” (Internal
quotation marks omitted.) Id., 358.
In his brief, the defendant claims that the language of
the state’s final argument “wrongly argued to the jury that
Rivera’s statement showed that the defendant hired
Arciniega to kill Rivera,” thereby arguing facts not in
evidence. The defendant also claims that the state argued
that he “sent Alvarado and Hernandez to kill Rivera,
although there was no evidence to support his claim.” On
the basis of our review of the state’s final argument, we
disagree with the defendant’s construction of it. Most
certainly, the prosecutor did not use the specific language
attributed to him by the defendant. The prosecutor argued
evidence presented at trial that supported the state’s
theory of the case that the defendant had a motive to kill
the victims and asked the jury to question the rationale of
the defendant’s argument on the basis of the evidence in
the case. It was the defendant’s closing argument that made
the most direct Page 474 reference to Rivera’s statement
and then demonstrated its lack of credibility because
Arciniega did not shoot the defendant, and thereby
thoroughly discrediting the statement. For these reasons,
we conclude that the prosecutor was not guilty of
misconduct.
[fn2] The jury found the defendant not guilty of two counts
of felony murder in violation of General Statutes §
53a-54c.
[fn3] There are a number of types of firearms that use nine
millimeter bullets, including a Taurus. The defendant was
known to own a Taurus, but his Taurus was never recovered.
[fn4] The substitute information alleged, in part, as to
the respective counts of murder: “[A]t or about 1:50 a.m.
at the area of 116 Corn Tassel Road, Bridgeport, [the
defendant] and others unknown, acting with the intent to
cause the death of [Magdiel Rivera, Jr./Luis Velez] did
shoot with a firearm, and cause the death of said
[Rivera/Velez]. . . .”
As to the count of capital felony, the substitute
information alleged, in part, that the defendant “and
others unknown, did shoot with a firearm and cause the
death of two persons at the same time and in the course of
a single transaction, to wit: Magdiel Rivera, Jr., and Luis
Velez. . . .”
[fn5] To the extent that the defendant asserts a claim in
violation of article first, § 8, of the constitution
of Connecticut, his claim does not meet the standard
enunciated in State v. Geisler, 222 Conn. 672, 684-86, 610
A.2d 1225 (1992) (defendant must provide independent
analysis under particular provision of state constitution).
See State v. Pierre, 277 Conn. 42, 74 n. 12, 890 A.2d 474
(2006). Because the defendant’s state constitutional claim
was not briefed, we deem it abandoned.
[fn6] Prior to Bonilla’s testifying about the conversation
he and Rivera had in the van, the court held a hearing on a
motion in limine filed by the defendant to preclude
testimony as to Rivera’s statement.
[fn7] On cross-examination, Bonilla testified in response
to questions from defense counsel, in part, as follows:
“Q. . . . Didn’t you also tell the police that [Rivera]
said that [Arciniega] told him not to worry? We’re boys,
you and me. And so what I’m going to do is, I’m going to
make believe that I’m going to kill you. And at the last
minute, we’re going to have a meeting and [the defendant]
is going to be there. And at the last minute, I’m going to
turn my gun and kill [the defendant]?
“A. He said he was going to go against him.
“Q. Against [the defendant], correct?
“A. Correct.”
[fn8] The defendant later made an oral motion to strike
Bonilla’s testimony as to the statement and a motion for a
mistrial. The court denied both motions.
[fn9] The defendant argues that the state ignored this
instruction by arguing Rivera’s statement for its truth
during final argument. See part III.
[fn10] Fuji is also known as Terrence T. Brown.
[fn11] Roxanne Balarezo is the mother of the defendant’s
children. The defendant, however, lived with his
girlfriend, Jennifer Capozziello. Balarezo and Capozziello
did not get along with each other.
[fn12] Alvarado was an uncooperative witness when first
called by the state. Statements that he gave to the police
were read to the jury pursuant to State v. Whelan, 200
Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107
S.Ct. 597, 93 L.Ed.2d 598 (1986). Before he testified on
cross-examination, Alvarado obtained a grant of immunity
from the state.
[fn13] Carlos Hernandez later explained the defendant’s
gesture. The defendant imitated as if he were pointing a
gun and shooting.
[fn14] The sites of Rivera’s wounds, according to the
testimony of Carlos Hernandez, were consistent with the
testimony given by the medical examiner who conducted the
autopsy and the photographs that were taken of Rivera’s
wounds.
[fn15] Again, the defendant has failed to present an
analysis of his state constitutional claims. We, therefore,
will review only his federal constitutional claims. See
footnote 5.
[fn16] Defense counsel argued, in part, that “some people .
. . are going to take the stand and they’re going to say
[the defendant] told me he did it. . . . [T]hey’re not
priests or nuns or rabbis or counselors or anything like
that, you know, and that’s number one. Number two, these
are not people who came forward a day or a week or a month
after this whole thing happened and said to the police on
their own. . . . No. I know and I’m telling you, I’m going
to prove this to you and you’re going to see that at least
two of these people . . . that were within the circle of
individuals [the prosecutor] was referring to, at least two
of them are, in all likelihood, the real killers in this
case, okay, and I’m going to give you their names. . . .
They’re critical. You are going to see them here. They are
going to testify. . . . Jose Alvarado. And there is another
guy named Roberto Hernandez.”
[fn17] There was evidence that Roberto Hernandez was in
possession of a nine millimeter Taurus.
[fn18] Colon was arrested in Greenwich on November 1, 1999,
while delivering to Rivera’s father a large quantity of
crack cocaine and a gun that had belonged to Rivera.
According to Colon, Rivera’s father had set him up to be
arrested by the drug enforcement agency. Colon had obtained
the drugs from Bonilla. Colon gave an oral statement to the
police regarding the matters about which he testified in
November, 1999, and a written statement to the Bridgeport
police in June, 2001.
[fn19] The following colloquy took place between defense
counsel and the court:
“[Defense Counsel]: What about on the issue of credibility?
You mean I can’t even ask them about what Colon said was
true?
“The Court: Yes. I’ll let you do that. What I’m saying is,
you cannot put them on trial and accuse them of having
committed the murders. That’s what I’m saying. That’s my
ruling. . . .”
[fn20] The cases on which the trial court relied support
its ruling precluding the third party culpability evidence
proffered by the defendant. See State v. Ortiz, supra, 252
Conn. 563-65 (court excluded evidence that drug dealer had
hired hit men to commit murder and identity of hit men
because proffered evidence did not directly connect dealer
with murder or that dealer committed murder rather than
defendant); State v. Colton, supra, 227 Conn. 258-59 (not
enough to show that another had motive to commit crime nor
is it enough to raise bare suspicion that some other person
may have committed crime of which defendant is accused).
[fn21] During final argument, defense counsel argued in
part: “Believe these guys. Believe [Roberto] Hernandez and
Alvarado, the two guys with the biggest motive in this case
to lie. Was I wrong about that? Did I tell you that in the
opening statement? These guys have the biggest motive to
lie.” “Hernandez and Alvarado. Again, the state has a big
problem with Hernandez and Alvarado. You know why, ladies
and gentlemen? Because somebody is lying. Either Colon is
lying to you, or Hernandez and Alvarado are lying to you.”
“You believe Hernandez and Alvarado? You believe them? You
believe that [Alvarado] just happened to look at a girl one
day and [Rivera] thought he was looking at him and doing it
the wrong way and then torched his car? Or is it more
likely that he had his gun in his vest, and [Rivera] knew
that [Alvarado] and [Roberto Hernandez] were out there
stalking him, that there was probably a confrontation,
either shots fired or close to it. [Rivera’s] life, very
closely in danger of being taken away, and you think
[Rivera] carried a grudge for the rest of the day? He
didn’t give up. He looked for him. He stalked [Alvarado] the
rest of the day, found him in the north end later on and
blew up his car.
“Now, if you believe that the next day they made friends
— that’s what [Alvarado] says. Remember, [Roberto
Hernandez] says, `I was down the block and saw him give
$1500 to [Alvarado] for the car.’ [Alvarado] says it was
$800 for the car. If you believe they made friends after
that, then I’ll sell you the Brooklyn Bridge, ladies and
gentlemen. Those guys hated each other. Okay. And these are
the guys with the motive to lie here.”
[fn22] In his main brief, the defendant argued: “In its
first closing argument, the state used the substance of
Rivera’s statement, admitted to show his fear, for its
truth — that Rivera met with Arciniega hours before
Rivera was killed and that the defendant hired Arciniega to
kill Rivera.”
[fn23] Query whether the prosecutor misspoke, intending to
have said Arciniega.
The judgment is affirmed.
In this opinion STOUGHTON, J., concurred.
SCHALLER, J., concurring.
I agree with the result in this case. The majority,
however, assumes “without deciding that the defendant [Luis
Galarza] was denied the right to cross-examine the
witness”; (emphasis added); presumably because Edwin
Bonilla’s testimony about the out-of-court statement by one
of the victims, Magdiel Rivera, Jr., in which Rivera had
repeated what Jose Arciniega had said to him, was
inadmissible. I write separately for the sole purpose of
stating my view that Bonilla’s testimony repeating Rivera’s
statement clearly should not have been admitted under the
Connecticut Code of Evidence.
The state initially offered Bonilla’s testimony concerning
Rivera’s statement as a declaration against Arciniega’s
penal interest. The state argued that the statement showed
that Rivera and the defendant were involved in a
territorial dispute and that the defendant had a motive to
kill Rivera. The state then abandoned that rationale and
adopted the spontaneous utterance exception suggested by
the trial court as a ground for admitting the statement.
The state argued curiously that the statement was not
offered to prove its truth but to prove the victim’s state
of mind. The defendant objected on the ground that the
statement was double hearsay and did not fall within any
hearsay exception, including spontaneous utterance. The
court admitted the statement into evidence as a spontaneous
utterance in order Page 475 to prove Rivera’s state of
mind. During Bonilla’s testimony, the court informed the
jury that the statement was not being offered as proof of
the truth of the statement but as proof of the victim’s
mental condition and state of mind when he made the
statement. In the course of instructing the jury, the court
explained further that the statement was admitted as a
spontaneous utterance. The court noted: “This is an
exception to the hearsay rule. It was not offered for its
truth but for the witness’ then existing state of mind.”
The defendant correctly points out that both the state’s
offer and the court’s ruling and instructions contain
contradictions. Under our rules of evidence, spontaneous
utterances are admitted for the truth of the matter
asserted and need not be limited to proving state of mind.
See Conn. Code Evid. § 8-3 (2); State v. Arluk, 75
Conn. App. 181, 187, 815 A.2d 694 (2003) (under the
spontaneous utterance exception, “[h]earsay statements,
otherwise inadmissible, may be admitted into evidence to
prove the truth of the matter asserted therein” [internal
quotation marks omitted]). Conversely, a statement offered
for a nonhearsay purpose, such as proving a person’s state
of mind, need not be designated as a spontaneous utterance.
A nonhearsay purpose for an offer does not rely on an
exception to the hearsay rule. See C. Tait, Connecticut
Evidence § 8.7 (3d Ed. 2001) (“Any statement that is
not offered to prove the matter asserted is not hearsay. . .
. If the statement is not offered to prove its contents,
the offeror must satisfy the court that the statement
itself is relevant for some other purpose.”); State v.
Rivera, 40 Conn. App. 318, 324-25, 671 A.2d 371 (1996) (“An
out-of-court statement is not hearsay . . . if it is
offered to illustrate circumstantially the declarant’s then
present state of mind, rather than to prove the truth of
the matter asserted. . . . [S]uch an out-of-court statement
by a declarant would only be admissible to show his Page
476 state of mind where his mental state is relevant.”
[Citations omitted; internal quotation marks omitted.]).
Notwithstanding the confusion in the trial court, I suggest
that Bonilla’s testimony as to Rivera’s statement was not
properly admissible as a spontaneous utterance or, for that
matter, to prove Rivera’s state of mind, which was
irrelevant to the issues in the case.[fn1]
I note, at the outset, that Bonilla’s testimony regarding
Rivera’s out-of-court statement, in which Rivera repeated
what Arciniega had said to him, constituted hearsay within
hearsay. As such, Bonilla’s testimony was “admissible only
if each part of the combined statements [were]
independently admissible under a hearsay exception.” Conn.
Code Evid. § 8-7; see also State v. Lewis, 245 Conn.
779, 802, 717 A.2d 1140 (1998) (“[w]hen a statement is
offered that contains hearsay within hearsay, each level of
hearsay must itself be supported by an exception to the
hearsay rule in order for that level of hearsay to be
admissible”). In my view, these statements are inadmissible.
It is axiomatic that “[a]n out-of-court statement offered
to prove the truth of the matter asserted is hearsay and
is generally inadmissible unless an exception to the
general rule applies. . . .” (Internal quotation marks
omitted.) State v. Gregory C., 94 Conn. App. 759, 770, 893
A.2d 912 (2006). Pursuant to Connecticut Code of Evidence
§ 8-3 (2), a “statement relating to a startling
event or condition made while the declarant was under the
stress of excitement caused by the event or condition”
constitutes a spontaneous utterance and is an exception to
the general hearsay rule. The spontaneous utterance
exception is well established and dictates that “[h]earsay
statements, otherwise inadmissible, may be admitted into
evidence to prove Page 477 the truth of the matter
asserted therein when (1) the declaration follows a
startling occurrence, (2) the declaration refers to that
occurrence, (3) the declarant observed the occurrence, and
(4) the declaration is made under circumstances that negate
the opportunity for deliberation and fabrication by the
declarant. . . .
“Whether an utterance is spontaneous and made under
circumstances that would preclude contrivance and
misrepresentation is a preliminary question of fact to be
decided by the trial judge. . . . The trial court has broad
discretion in making that factual determination, which will
not be disturbed on appeal absent an unreasonable exercise
of discretion.” (Citations omitted; internal quotation
marks omitted.) State v. Gregory C., supra, 94 Conn. App.
770-71.
In the present case, the circumstances of Rivera’s
repeating what Arciniega had told him did not fall within
the traditional spontaneous utterance rule, which requires
that the utterance be “spontaneous and unreflective and
made under such circumstances as to indicate absence of
opportunity for contrivance and misrepresentation.”
(Internal quotation marks omitted.) State v. Kelly, 256
Conn. 23, 60, 770 A.2d 908 (2001). Rivera, immediately
after his conversation with Arciniega in the rest room,
left the rest room and recounted to Bonilla what he had
been told. According to Bonilla, however, “[Rivera] didn’t
want to talk. I had to push [it] out of him.” Although
Rivera was “acting funny” and may have been upset by
Arciniega’s information, the episode did not involve
circumstances that give rise to the exception for
spontaneous utterances. In fact, as Bonilla implicitly
acknowledged, there was nothing spontaneous about the
statement; rather, he had to encourage Rivera to speak.
Moreover, the admission of the details of the information
that Arciniega had told Rivera was not needed to prove
Rivera’s state of mind, which was that he was fearful, if,
indeed, his state Page 478 of mind was relevant at all in
this case. Rather, it is apparent that the only plausible
purpose of the offer was to implicate the defendant by
establishing that he had hired Arciniega to kill Rivera,
not simply to prove Rivera’s state of mind.
In conclusion, the offered statement was, indeed, hearsay
upon hearsay, and was not admissible under our rules of
evidence. I agree with the majority’s analysis that
admission of the statement was harmless beyond a reasonable
doubt.
For the foregoing reasons, I respectfully concur.
[fn1] On the basis of the nature of the statements offered,
§ 8-3 (4) of the Connecticut Code of Evidence is not
implicated.