State v. Camacho

• Citation: 884 A.2d 1038,92 Conn. App. 271
• Decision Date: 15 November 2005
• Docket Number: (AC 25014).
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. DANIEL J. CAMACHO.

92 Conn. App. 271

884 A.2d 1038

STATE OF CONNECTICUT v. DANIEL J. CAMACHO.

(AC 25014).

Appellate Court of Connecticut.

Argued September 16, 2005.

Officially released November 15, 2005.

Dranginis, Gruendel and Hennessy, js.

James B. Streeto, assistant public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Daniel J. Camacho, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59, and assault in the first degree in violation of General Statutes § 53a-59. The jury also found that the defendant had used a firearm in the commission of those crimes in violation of General Statutes § 53-202k, and the court enhanced his sentence accordingly. On appeal, the defendant claims (1) that the state violated the constitutional prohibition against presenting evidence of postarrest silence subsequent to the administration by the police of the warning pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); see Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d (1976); (2) that the court improperly admitted (a) the statement of a witness and (b) an unsigned written document, and (3) that the prosecutor committed prejudicial misconduct. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 19, 2003, the defendant was the front seat passenger in a maroon Nissan Xterra being driven by Lydia P. Taylor. Antwaun Curry, who was sixteen years old, was a passenger in the backseat. Curry lived with his cousin, Chantay Gibson, who is the defendant's girlfriend. At approximately 6 p.m., the three arrived at the Harambee Center (center), a supervised recreational facility for young people in Danbury. Taylor parked the vehicle in an alley between the center and the First Congregational Church.

Curry entered the center and spoke to Michael Whitaker, who was playing basketball. Curry asked Whitaker to leave the center with him and go to a designated location where the defendant "would shoot him the fair one."¹ The defendant harbored ill will against Whitaker, which arose out of a fight that Whitaker's brother had had with the defendant on New Year's Eve, 1999. Whitaker ignored Curry. Curry twice left the center and returned to ask that Whitaker go with him.

Whitaker telephoned two of his friends, Sylvanus Thompson and Matt Ramirez, asking them to meet him at the center so they could go to a bar together. Thompson and Ramirez arrived at the center between 7 and 7:15 p.m. Whitaker, Thompson and Ramirez left the center via the back door and saw the defendant sitting in the front passenger seat of the Xterra. Whitaker and Thompson were familiar with the defendant, whom they knew as "Danny." Curry and Thompson exchanged words, and then Thompson, Whitaker and Ramirez turned and walked away.

Gunshots were fired. Curry and Taylor later told the police that the defendant had pulled out a gun and started shooting. Thompson was injured by the shooting.² After he heard the first three gunshots, Whitaker turned and saw that Thompson had fallen. Whitaker then ran toward the center as the defendant fired two more gunshots. One of the bullets went over Whitaker's head and hit a brick wall, after penetrating a downspout. Neither Whitaker nor Thompson saw a gun, but they saw flashes of light coming from the front passenger side of the Xterra, where they had seen the defendant sitting. When the police arrived at the scene, Thompson told them that the defendant had shot him.

The police collected five nine millimeter shell casings from the southern end of the alley. Forensic examiners determined that the casings had been ejected from a semiautomatic weapon and that four of the five casings had been fired from the same gun. They were unable to determine the weapon from which the fifth casing had been shot. The police also recovered a nine millimeter jacketed bullet at the northern end of the alley. Forensic examiners were unable to determine whether the casings and bullet had been fired from the same gun.

After he had been arrested, the defendant told the police that he was sorry that Thompson had been hurt and that "he fired the gun, but he didn't want [Thompson] to get hit." At trial, however, the defendant denied being at the center and presented an alibi defense. Gibson and Joshua Beers testified that the defendant and Gibson had met Beers at a liquor store at about 7:30 p.m. and that the three of them had gone to a movie theater. Because the three could not agree on which movie to see, they went home.

Following his arrest, the defendant was charged in a long form information with attempt to commit murder, attempt to commit assault, assault in the first degree and, in a part B information, with commission of a class A, B or C felony with a firearm. The jury found the defendant guilty of the three assault charges and stated in interrogatories that he had used a firearm in the commission of those offenses. The court sentenced him to an effective term of twenty-three years in the custody of the commissioner of correction. The defendant appealed.

I

The defendant's first claim is that the state violated the tenets of Doyle v. Ohio, supra, 426 U.S. 610, by presenting evidence of his postarrest silence after he was advised of his rights pursuant to Miranda v. Arizona, supra, 384 U.S. 436, and compounded the error by referring to the evidence during its closing argument. We disagree with the defendant's claim.

The following facts are relevant to our resolution of this claim. Daniel Trompetta, a detective, arrested the defendant at an apartment in Waterbury on March 24, 2003. Trompetta, a witness for the state, testified in part on direct examination as follows:

"[The Prosecutor]: What did [the defendant] say to you when you placed him under arrest?

"[The Witness]: His first reaction was [that] he was astounded that we found him. He wanted to know how we found where he was. He said, `No one knows where I am. How did you find me?' That was his major question.

"[The Prosecutor]: After you placed him under arrest, did you put him in a police car?

"[The Witness]: Yes. An unmarked police car.

"[The Prosecutor]: And what did you do with him at that point?

"[The Witness]: He was handcuffed, placed in the rear of the car. Detective Julio Lopez drove the car back to Danbury. I sat next to [the defendant].

"[The Prosecutor]: Did you advise [the defendant] of anything?

"[The Witness]: Of his Miranda warnings. His rights.

"[The Prosecutor]: And did you ask him to talk about the shooting?

"[The Witness]: Yes.

"[The Prosecutor]: And did he indicate surprise? Did he say: `What shooting are you talking about?' What was his response?

"[The Witness]: His response was, `I don't know what I should do right now.' And then he just stopped talking.

"[The Prosecutor]: And did you say anything more at that point?

"[The Witness]: Basically, not on the ride. The only conversation was [that] he was still questioning how we located him. We returned to the police station and started the arrest process of fingerprinting, photographs. And during this time, I explained to him that if the gun turned up in some child's hands or in someone else's hands, and someone else got hurt by the weapon, that his problems would grow. He'd have much bigger problems that—we wanted him to help us find the weapon. He didn't say anything.

"[The Prosecutor]: Did you allow him to make a phone call?

"[The Witness]: I did.

"[The Prosecutor]: And did he indicate to you any desire to make further phone calls?

"[The Witness]: Yes. Once he found out what his bond was, he made a phone call, I believe, to Chantay. And he asked if he'd be able to make another phone call before he went to court the next morning. I told him that my partner and I, we'd been working days. And we—if everything—if time permitted, we'd come down and let him make another phone call if he needed to.

* * *

"[The Prosecutor]: [The next day] did he, in fact make a phone call?

"[The Witness]: Yes.

"[The Prosecutor]: And after he made the phone call, what happened?

"[The Witness]: At the time he was making—getting ready to make the phone call, he looked at me and said, `Lydia knows who has the gun.' I asked—I said, you know, `You remember being read your rights?' He said, `Yes.' And then he made his phone call—I believe to Chantay. She wasn't in. He had to—he was told to call back in fifteen or twenty minutes, that she'd be back.

"So, he sat down to wait, to make the second phone call, and he told us that when he returned to the house that day, he gave the gun to a Hispanic male named `Flocko' and that Lydia could help us find who Flocko really is to retrieve the weapon.

"He felt bad. He said that he—something to the effect that he never meant for Macho³ to get hurt, he had no problems with Macho, that he fired the gun, but he didn't want Macho to get hit.

"He just gave us a vague description of this Flocko. He wasn't sure that Flocko was really the real street name, but that, again, he said that Lydia would be able to help us find the person's real name." The defendant did not object to the direct examination.

During rebuttal argument to the jury, the prosecutor argued in part: "What's the state asking you to concentrate on? The sketch. The [identifications]. The two [identifications]: Sylvanus Thompson, Michael Whitaker. Plus, Lydia Taylor and Antwaun Curry; you have their statements. Read them over. You got the note [that the defendant wrote to a cell mate while in pretrial...