State v. Alvarez

• Decision Date: 21 August 1990
• Docket Number: No. 13722,13722
• Citation: 216 Conn. 301,579 A.2d 515
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jorge ALVAREZ.

Page 515

579 A.2d 515

216 Conn. 301

STATE of Connecticut v.Jorge ALVAREZ.

No. 13722.

Supreme Court of Connecticut.

Argued June 5, 1990.

Decided Aug. 21, 1990.

Milo J. Altschuler, Seymour, for appellant(defendant).

Leon F. Dalbec, DeputyAsst. State's Atty., with whom, on brief, were Michael Dearington, State's Atty., and David P. Gold, Asst. State's Atty., for appellee(state).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The defendant, Jorge Alvarez, was convicted by a jury of the crime of murder in violation of General Statutes § 53a-54a.¹The trial court sentenced him to a term of life imprisonment.On appeal, the defendant challenges four evidentiary rulings by the trial court.He first contends that the trial court should have admitted a statement by Kenneth Hazard, a witness to the shooting that caused the victim's death, to Joseph Greene, a police officer.In addition, he argues that the court should have excluded: (1) the contents of a conversation between the defendant and Melvin Poindexter; (2) the prior written and tape recorded statements of a witness to the shooting incident, Pamela McCrea; and (3) the testimony of Janette Lawrence.We conclude that the trial court did not abuse its discretion in ruling as it did on these evidentiary claims, and therefore affirm the court's judgment.

The jury could reasonably have found the following facts.At approximately 2 a.m. on January 16, 1988, the victim, Eugene Mabery, was returning home from a friend's house when he passed by the Oasis Club in New Haven.While outside the club, Mabery became involved in an altercation with Johnnie Baker.A crowd of spectators, including Pamela McCrea and Kenneth Hazard, gathered to watch the fight.After the fighting was halted, and while Mabery was attempting to retrieve a plastic bag containing his gym clothes, the defendant drew a gun and shot him in the upper body.Mabery immediately bent over, exclaimed that he had been shot, gathered his belongings and ran from the scene.A few days later, on January 23, 1988, his body was found in a frozen condition in the backyard of a nearby home.He had died from a gunshot wound to his chest.

I

The defendant first argues that the trial court should have allowed Officer Joseph Greene, an investigating police officer to testify as to a statement made to him by Kenneth Hazard, a witness to the shooting incident.As to this claim, the record reveals the following relevant facts.During the cross-examination of Greene, the defendant attempted to elicit testimony from him as to the details of his investigation.In an offer of proof, outside the presence of the jury, Greene testified that Hazard had told him that he thought he saw a person named Rasheem shoot the victim.The trial court excluded the proffered testimony as hearsay, an out-of-court statement offered to prove the truth of the matter asserted therein.

A

The defendant maintains that, under our decision in State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143(1987), a hearsay statement that establishes that a third party, and not the defendant, is culpable is admissible as long as the defendant shows some evidence that directly connects the third party to the crime.Thus, he argues that once he had established the relevancy of the statement, he could offer the statement for the truth of the matter asserted therein.We disagree.

The first criteria of admissibility is that the statement made by Hazard must be relevant."We have often stated that '[e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case...."One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable....Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue."Pope Foundation, Inc. v. New York, N.H. & H.R. Co., 106 Conn. 423, 435, 138 A. 444(1927).'State v. Towles, 155 Conn. 516, 523, 235 A.2d 639(1967)."(Emphasis added.)State v. Echols, supra, 203 Conn. at 393, 524 A.2d 1143.

A "defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged."Id., 203 Conn. at 392, 524 A.2d 1143.We have stated that such evidence is admissible as long as " ' "there is some evidence which directly connects that third party with the crime."(Emphasis added.)State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095(1977)....'State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040(1981)."State v. Delossantos, 211 Conn. 258, 270, 559 A.2d 164, cert. denied, --- U.S. ----, 110 S.Ct. 188, 107 L.Ed.2d 142(1989).Evidence that showed that Rasheem, and not the defendant, had shot the victim thus is relevant and would be admissible provided the evidence was not excluded by some other rule or principle of law.²

The determination that the proffered testimony is relevant, therefore, does not end the inquiry.Contrary to the defendant's claim, the court must also determine whether the statement falls within any recognized exception to the hearsay rule.State v. Acquin, 187 Conn. 647, 680, 448 A.2d 163(1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411(1983).In the present case, the trial court determined that it did not.

We have long recognized that a hearsay statement is admissible only if it falls within an exception to the hearsay rule.State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345(1985);State v. Acquin, supra, 187 Conn. at 680, 448 A.2d 163;Izzo v. Crowley, 157 Conn. 561, 563, 254 A.2d 904(1969).The defendant sought to introduce Hazard's statement, through Greene, for the truth of the matter asserted therein, i.e., that Rasheem shot the victim.The value of this statement depends upon the credibility of Hazard."The reason for the general rule which excludes hearsay evidence unless it comes within one of the recognized exceptions is basically that the sanction of an oath and the test of cross-examination are absent; and the exceptions to the rule have been fashioned where the statements are made under conditions judged to render them equal in reliability and trustworthiness to those which are made under the sanctions described."State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46(1979);seeState v. Hernandez, 204 Conn. 377, 389-94, 528 A.2d 794(1987);State v. Gold, 180 Conn. 619, 630-31, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148(1980).

"Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice."State v. Hernandez, supra, 204 Conn. at 390, 528 A.2d 794.We conclude that the trial court did not abuse its discretion by not admitting Greene's proposed testimony as to Hazard's hearsay statement merely because it was relevant.

B

The defendant now asserts for the first time, on appeal, that Greene's testimony concerning Hazard's statement falls within the residual exception to the hearsay rule.We have stated that hearsay may be admitted into evidence, even if it does not fall within a traditional hearsay exception, if (1)"there was a reasonable necessity for the admission of the statement," and (2)"the statement was supported by the equivalent guarantees of reliability and trustworthiness essential to the other evidence admitted under the traditional hearsay exceptions."State v. Sharpe, supra, 195 Conn. at 664, 491 A.2d 345.

"On appeal, [however,]we will not review an evidentiary claim not raised below.' " 'Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted.'Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224(1938);State v. Rado, 172 Conn. 74, 81, 372 A.2d 159(1976)[cert. denied, 430 U.S. 918, 97 S.Ct. 1335, 51 L.Ed.2d 598(1977) ];State v. Johnson, 166 Conn. 439, 444-45, 352 A.2d 294(1974);Salvatore v. Hayden, 144 Conn. 437, 443, 133 A.2d 622(1957)."State v. Adams, 176 Conn. 138, 144-45, 406 A.2d 1(1978)....'State v. Brice, 186 Conn. 449, 457, 442 A.2d 906(1982)...."State v. Moye, 214 Conn. 89, 97-98 n. 6, 570 A.2d 209(1990).Because the defendant failed to raise the residual exception at trial and the trial court did not have the opportunity to consider that ground for admission of Greene's testimony, we will not address this claim of the defendant on appeal.³

II

The defendant next argues that the trial court should have excluded a portion of the testimony of Richard King because it was irrelevant and because it was inadmissible hearsay.The following facts are relevant to this claim.King testified that, approximately one week before the victim's body was found, he had gone to Melvin Poindexter's apartment "to get some cocaine."When King arrived, the defendant and Rasheem were there.

During direct examination, the state inquired as to the contents of the conversation between the defendant and Poindexter.Over the defendant's objection, the following colloquy transpired:

"Q.Tell the jury what Mr. Poindexter said to Mr. Alvarez....

"A.He said that he had fronted Gene a key of cocaine.

"Q.He said he fronted someone named Gene--

"A.A key of cocaine.

"Q.That was a statement made by Mr. Poindexter to the defendant?

"A.Yes.

"Q.And did he give a last name of Gene?

"A.No.

"Q.What happened?Continue with what happened at the table?

"A.So then he said if Gene don't have his money he wants him to kill him.So then he said all right, I take care of it if it come down to that.

"Q.Who said I will take care of it if it comes down to that?

"A.Jorge Alvarez.

"Q.What did Mr. Poindexter then provide Mr. Alvarez?

"A.A pistol, some cocaine and some...