State v. Ayuso

• Decision Date: 15 January 2008
• Docket Number: No. 26360.,26360.
• Citation: 105 Conn.App. 305,937 A.2d 1211
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jose AYUSO.

937 A.2d 1211

105 Conn.App. 305

STATE of Connecticut v. Jose AYUSO.

No. 26360.

Appellate Court of Connecticut.

Argued September 18, 2007.

Decided January 15, 2008.

Stephanie L. Evans, special public defender, for the appellant (defendant).

Harry D. Weller, senior assistant state's attorney, with whom, on the brief, was James E. Thomas, former state's attorney, for the appellee (state).

FLYNN, C.J., and HARPER and PETERS, Js.

FLYNN, C.J.

The defendant, Jose Ayuso, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59(a)(5), and one count each of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49(a)(2) and 53a-59(a)(5), carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1). On appeal, the defendant claims that (1) his constitutional rights were violated (a) by a witness' assertion of an invalid fifth amendment privilege against self-incrimination or, alternatively, (b) by the failure of the trial court to compel the state to grant that witness immunity, (2) the prosecutor engaged in impropriety that deprived him of a fair trial and (3) the evidence was insufficient to support his conviction for one of the counts of assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 5, 2003, at approximately 1 a.m., Officers Tishay Johnson and Victor Otero and Sergeant Gerry Pleasant of the Hartford police department were working undercover to target street crimes in Hartford and were patrolling the city in an unmarked, two door Toyota Tercel. At that time, the undercover officers received a radio dispatch, directing them to investigate the 500 block of Zion Street for loitering and narcotics sales. Johnson then drove northbound on Zion Street, turning right onto Park Street. Johnson entered a driveway located between 835 and 853 Park Street and parked the vehicle in the rear parking lot. After Johnson parked the vehicle, the defendant, who had been standing underneath a nearby tree, approached the driver's side of the vehicle. Pleasant immediately recognized the defendant from previous encounters. Johnson rolled down the window, and the defendant asked Johnson what he needed. In response, Johnson asked the defendant what he had.

The defendant then looked inside the vehicle at Otero, who was sitting in the backseat, and at Pleasant, who was sitting in the front passenger seat, and then stepped away from the vehicle. Pleasant and Johnson, who still were seated in the front seat, heard the defendant load his gun, which was a .40 caliber Glock semiautomatic handgun. Johnson also observed the defendant point the gun at him. As Johnson was exiting the vehicle, the defendant fired two gunshots in Johnson's direction, one of which struck the bulletproof vest that Johnson was wearing underneath his clothes. The defendant continued to shoot as he moved away from the vehicle, and the officers also fired their .45 caliber semiautomatic handguns. During this time, the defendant shot Otero several times. Johnson briefly chased the defendant down Park Street; however, Johnson returned to the parking lot after exhausting his supply of ammunition. Pleasant then notified the police dispatcher of the situation, providing a description of the defendant, and requested an ambulance. Johnson, who was experiencing pain in his ribs, and Otero, who was bleeding from his abdomen, lay on the ground and waited to be taken to a hospital.

Although the defendant had sought refuge in a nearby apartment building on Mortson Street, responding officers, having been informed of the defendant's whereabouts by a resident of the apartment building, eventually located and arrested him. The police also located the defendant's .40 caliber Glock handgun in an apartment on Mortson Street. The defendant later was brought to the hospital so that the officers could identify him. Johnson made a positive identification of the defendant.

Thereafter, the state charged the defendant with three counts of attempt to commit murder in violation of General Statutes §§ 53a-49(a)(2) and 53a-54a, two counts of assault in the first degree in violation of § 53a-59(a)(5), three counts of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1) and one count each of attempt to commit assault in the first degree in violation of §§ 53a-49(a)(2) and 53a-59(a)(5), carrying a pistol without a permit in violation of § 29-35 and criminal possession of a firearm in violation of § 53a-217(a)(1).

On December 15, 2004, the jury found the defendant guilty of two counts of assault in the first degree and one count each of attempt to commit assault in the first degree, carrying a pistol without a permit and criminal possession of a firearm. The jury found the defendant not guilty of the other charges. Subsequently, the court imposed a total effective sentence of forty-one years incarceration, with a two year mandatory minimum sentence to serve. Additional facts will be set forth where necessary.

I FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION CLAIMS

The defendant raises multiple claims regarding the assertion by a witness, Angel Rosa, of his fifth amendment privilege against self-incrimination. On appeal, the defendant claims that he was deprived of his constitutional right to compulsory process to produce witnesses on his behalf under the sixth amendment to the United States constitution and that he was forced to waive his constitutional right to remain silent under the fifth amendment.¹ The defendant argues that his constitutional rights were violated by Rosa's assertion of an invalid fifth amendment privilege against self-incrimination and, in the alternative, by the court's refusal to compel the prosecution to grant the witness immunity.² We are not persuaded by any of the defendant's contentions.

The following additional facts are relevant to our resolution of the defendant's claims. During trial, the defendant sought to call Rosa, a convicted drug dealer, as a defense witness to support his theory of self-defense. At that time, Rosa was serving a nine year sentence and a one year concurrent sentence for two counts of possession of narcotics with intent to sell and one count of interfering with a police officer; all of the charges related to the sale of narcotics on Zion Street in Hartford and at Rosa's place of business on Zion Street. The defendant wanted Rosa to testify about the multiple disputes he had with the defendant on June 4, 2003, on Zion Street. According to the defendant, Rosa had accused him of being a snitch, had threatened him and had told him that he should carry his gun.

Outside the presence of the jury, the court confirmed that Rosa had consulted with his attorney and then asked Rosa whether he wanted to testify. In response, Rosa stated that he wanted to invoke his fifth amendment right. After the court reminded Rosa that he could confer with his attorney, defense counsel indicated that he wanted to voir dire Rosa. The court granted the request, and Rosa took the witness stand.

Defense counsel began his voir dire of Rosa, outside of the jury's presence, by asking him whether he owned a store on Zion Street, to which Rosa replied that he did own a store. Then, defense counsel asked Rosa to provide the name of the store, and Rosa stated that he did not own the store and that it was his parents' store. After defense counsel asked Rosa whether his parents owned the store, Rosa invoked his fifth amendment privilege against self-incrimination. Defense counsel then questioned Rosa about whether answering the question would incriminate him in any way, to which Rosa refused to answer and again asserted his fifth amendment privilege. Rosa also declined to answer defense counsel's questions about the defendant and the events of June 4, 2003, and, instead, invoked his fifth amendment privilege. Thereafter, defense counsel requested that Rosa be immunized. Defense counsel also objected to Rosa's invocation of his fifth amendment privilege, arguing that there was no possibility of prosecution. After hearing argument from both parties, the court ruled against the defendant with respect to his request for an order of immunity and his objection to Rosa's assertion of his fifth amendment privilege.

A

First, the defendant contends that Rosa invoked an invalid fifth amendment privilege against self-incrimination that deprived the defendant of his constitutional right to compulsory process to produce witnesses under the sixth amendment to the federal constitution. The defendant argues that the court improperly upheld Rosa's invocation of the right against self-incrimination because there was no possibility that Rosa could have been subjected to prosecution.³ We disagree.

Our Supreme Court has stated that a valid fifth amendment privilege against self-incrimination prevails over a defendant's right to compel a witness' testimony on his behalf. State v. Simms, 170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 199 (1976). Accordingly, we must first ascertain whether Rosa had a valid fifth amendment right to assert. If Rosa's invocation of his fifth amendment privilege was valid, the defendant's sixth amendment right to compulsory process must give way, and he will have failed to state a constitutional claim on appeal. See State v. Mourning, 104 Conn.App. 262, 276, 934 A.2d 263 (2007); see also State v. Simms, supra, at 209-10, 365 A.2d 821.

"A ruling on the validity of a witness' fifth amendment privilege is an evidentiary determination that this court will review under an abuse of discretion standard.... It is well settled that the trial court's evidentiary rulings are entitled to...