State v. Bennett

• Citation: 324 Conn. 744,155 A.3d 188
• Decision Date: 14 March 2017
• Docket Number: SC 18862
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Erick BENNETT

324 Conn. 744

155 A.3d 188

STATE of Connecticut

v.Erick BENNETT

SC 18862

Supreme Court of Connecticut.

Argued November 8, 2016

Officially released March 14, 2017

Erick Bennett, self-represented, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, former state's attorney, and Elizabeth Baran, former senior assistant state's attorney, for the appellee (state).

Rogers, C. J., and Palmer, McDonald, Espinosa and Robinson, Js.

McDONALD, J.

The defendant, Erick Bennett, directly appeals to this court following his conviction of murder in violation of General Statutes (Rev. to 2009) § 53a–54a. The defendant claims that there were numerous defects in his trial, the principal of which was that the trial court violated his constitutional right to present a defense by improperly refusing either to issue a summons to secure the attendance of a material witness in support of a theory of third-party culpability, or to allow the defendant to introduce that witness' statement to the police in lieu of her live testimony.¹ We conclude that defense counsel's failure to locate the out-of-state witness with any reasonable degree of certainty precludes relief regarding the issuance of a summons for the witness and that none of the defendant's remaining claims warrant reversal of the trial court's judgment of conviction.

The jury reasonably could have found the following facts. On the evening of July 10, 2009, the victim, Willie Brown, and his girlfriend, Veronica Arroyo, attended a social gathering. Around 9 p.m., the defendant and his sister, who were casual friends with Arroyo, picked up Arroyo to go to Raffy's Café Bar in Meriden.

Upon arriving outside the bar, Arroyo saw Christopher Benjamin, a close friend of Brown's, and greeted him. Brown called Arroyo on her cell phone, and after she told him that Benjamin was at the bar, Brown prevailed upon Benjamin to pick him up and bring him there despite Arroyo's plea to Benjamin that he not do so because she was concerned that Brown had been drinking and would get into trouble.

After Brown arrived, he and Arroyo began to argue while they and others stood in the parking lot behind the bar. When they first started to argue, the defendant came over and told Brown to "chill out," which made Brown angry. Benjamin stepped in between the two men and the situation deescalated, but not before Benjamin saw the defendant holding a pocketknife at his side. After Arroyo and Brown recommenced arguing, Benjamin walked over to the couple. Arroyo then began hitting and cursing at Benjamin for bringing Brown to the bar. Brown pried Arroyo away from Benjamin, but then began arguing with Arroyo again in the vicinity of the defendant. Benjamin heard the defendant state: "I'm not here for this .... I don't give a fuck. I'm going [to] kill him. I don't care." The defendant then held a knife up to Benjamin's neck, threatening: "[I]f I really wanted to kill you, I can right now." Benjamin walked away, and Arroyo and Brown momentarily stopped arguing.

After a third argument commenced between Arroyo and Brown, the defendant and Brown exchanged words. The two men came face-to-face, and the defendant pushed Brown to the ground. When Brown stood up, the defendant stabbed him in the chest several times, inflicting mortal wounds. Brown initially was able to get to his feet, but stumbled around and then collapsed to the ground. Benjamin heard a woman screaming and ran over to Brown, becoming hysterical when he saw how badly Brown was injured.

The defendant and his sister fled the scene in his vehicle. He spent the night at his sister's home and left for New York City the following day, returning to Meriden several weeks later.

The police obtained evidence inculpating the defendant shortly after the crime. Arroyo and Benjamin gave statements identifying the defendant as the person who had stabbed Brown. Another witness to the incident, Brandon Hogue, described the person who stabbed Brown as a man in a red or purple polo shirt, which was consistent with the clothing worn by the defendant that night. Although the police did not recover the entire knife, they found two thumb studs—the part of a folding knife used to open the blade—in the defendant's vehicle with blood on them that was consistent with Brown's DNA profile.

The defendant testified at trial. He denied stabbing Brown and claimed not to know who had done so because he had been walking to his vehicle when the stabbing occurred. The defendant suggested through the testimony of the mother of several of his children that the police had planted the knife thumb studs in his vehicle.

The defendant attempted unsuccessfully to obtain and introduce certain evidence in support of a theory that Benjamin or some unidentified Spanish speaking man or men had stabbed Brown, as well as evidence of police bias against him. Following the jury's verdict of guilty on the murder charge, the defendant also unsuccessfully sought permission to file a late motion for a new trial on the basis of a newly published report finding certain defective procedures in the state forensic laboratory. Those rulings, as well as challenges to the propriety of certain statements made by the prosecutor during cross-examination and closing arguments, are the subject of the present appeal.

I

The defendant's principal claim is that he was deprived of his constitutional rights to present a defense and to compulsory process insofar as he was unable to offer testimony from Jennifer Matias, a witness in support of his defense of third-party culpability, or Matias' statement she made to the police. Specifically, the defendant contends that the trial court improperly (1) denied his request for a material witness warrant to obtain Matias' appearance from out of state, and (2) denied admission of a recorded statement that Matias had given to the police. We disagree.

The record reveals the following additional undisputed facts. Matias made a 911 call to the police regarding the incident at Raffy's Café Bar. When the police arrived thereafter, she gave them a statement about what had prompted the call. She went to the police station approximately one hour later and gave a second statement, which was recorded. In her recorded statement, Matias provided the following account. Matias was visiting her mother's apartment, located across the street from the bar, when she heard people yelling. She went to the window and observed approximately twenty people standing around behind the bar watching a fistfight. Matias could not make out any features of the people fighting because the only light was from the bar, but she could see that there were three black men involved in the fight: a man in a red shirt, a man in a yellow shirt, and a man in a white shirt. Those descriptions matched the clothing worn that night by the defendant (red shirt), Benjamin (yellow shirt), and Brown (white shirt). Matias heard one or more women yelling, "Don't do it.... Gun. Oh, my God. A gun." After seeing the man in the yellow shirt push the man in the white shirt to the ground, Matias left the window to call 911. She then heard one or more gunshots, which brought her back to the window. She observed the man in the red shirt flee and drive away, while the man in the yellow shirt knelt next to the man in the white shirt on the ground. The man in the yellow shirt was hysterical, and stated, " ‘Oh, I killed him. I killed him.’ "

Defense counsel first alerted the trial court to concerns about his ability to proffer Matias as a witness as jury selection was about to commence. He explained that Matias had called him after she learned that he had mailed a subpoena to her residence, and had stated "that she had been contacted by several people over the past few months and she did not want to take any part in this case. She was told by a woman by the name of "Beth"—the name of the prosecutor—"that she did not have to do so if she didn't want to. Also ... she [stated] that ... [t]he Meriden Police Department indicated that if anybody had called her or had spoken to her about this case that they would take care of it." Matias hung up without telling defense counsel where she was. Defense counsel stated his intent to file a motion on this matter.

Shortly thereafter, the defendant filed a motion in limine seeking to admit the recorded interview that Matias had given to the police. The defendant argued therein that, because the police had failed to preserve Matias' 911 call,² he should be permitted to introduce the only recording preserving her version of the incident—i.e., the interview. In his memorandum in support of the motion, dated May 31, 2011, defense counsel noted that Matias had informed him that she would not be returning to Meriden until June 6, 2011.

On June 9, 2011, the trial court informed counsel that it was deferring a ruling on the motion in limine, noting that defense counsel was still seeking to serve a subpoena on Matias. Defense counsel then requested that the court "consider giving an order that the state issue a material witness warrant" for Matias. He noted that he had attempted to serve Matias with a subpoena at her residence and at her mother's residence, but was unsuccessful because she was not in Connecticut. He added that, without personally serving Matias, "[t]he only other remedy at the defense's disposal would be to ask the court for a material witness warrant which falls pursuant to, I believe, it's [General Statutes §] 54–84j³ and the state has the ability to ask for [one]. I do not have that ability. So, I would request that the court order the state to issue a material witness warrant for ... Matias." (Footnote added.) The trial court declined to rule on that request, noting that defense counsel had indicated in his motion in limine that Matias would be returning to Meriden on June 6, 2011,...