State v. Castro

• Citation: 200 Conn.App. 450,238 A.3d 813
• Decision Date: 06 April 2020
• Docket Number: AC 43386
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Luis CASTRO

200 Conn.App. 450

238 A.3d 813

STATE of Connecticut

v.Luis CASTRO

AC 43386

Appellate Court of Connecticut.

Submitted on briefs April 6, 2020

Officially released September 29, 2020

Emily Graner Sexton, assigned counsel, and Matthew C. Eagan, assigned counsel, filed a brief for the appellant (defendant).

Maureen Platt, state's attorney, Don E. Therkildsen, senior assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, filed a brief for the appellee (state).

Keller, Prescott and Devlin, Js.

PRESCOTT, J.

The defendant, Luis Castro, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court violated his right under the confrontation clause of the sixth amendment to the United States constitution.¹ Specifically, the defendant argues that the trial court improperly admitted into evidence a ballistics report that was authored by an individual whom the defendant did not have an opportunity to confront because he did not testify at trial, after defense counsel expressly waived, without any legitimate or prudent strategical reasons, the defendant's confrontation right with respect to the author of the ballistics report.² The defendant further argues that article first, § 8, of the Connecticut constitution³ provides greater protection than the federal constitution, and, thus, a waiver of the right to confrontation must be personally made by the defendant in order to comport with our state constitution. We disagree with the defendant and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 9, 2016, at about 2 a.m., a group of people, including the defendant, Jacquise Henry, and Michael Roman, arrived at Bobby D's Café, a bar on Whitewood Road in Waterbury. Shortly thereafter, the group confronted the victim, Harry Mendoza, who was by a pool table. Henry punched the victim in the face, and a physical altercation involving many of the bar patrons ensued. The bartender told everyone to leave. The defendant, Henry, and the victim walked out to the parking lot near the rear of the building. The defendant took a revolver from his waistband and shot the victim twice. The victim was transported to Waterbury Hospital where he died from his gunshot wounds

.

Later that day, Henry turned himself in to the police and gave a statement identifying the defendant as the shooter. The police obtained a warrant for the defendant's arrest but were unable to find him. On April 18, 2016, the defendant turned himself in to the United States Marshals Service in Puerto Rico. No weapon was ever recovered. The defendant was charged with the victim's murder.⁴

The defendant elected a jury trial, which began on May 14, 2018. On the third day of trial, the state called as a witness Joseph Rainone, supervisor of the forensics division of the Waterbury Police Department, and had him explain the findings of a ballistics report, which was admitted into evidence for substantive purposes but that he neither authored nor peer-reviewed.⁵ Specifically, Rainone testified, inter alia, that, after assessing a bullet recovered from the victim's body, a state's firearms examiner concluded that it was discharged from a .38 or .357 caliber firearm, which could have been a revolver or a semiautomatic pistol. While testifying, Rainone stated that, on the basis of the report, the bullet would have come from a revolver.⁶ Defense counsel did not object to either the admission of the ballistics report or to Rainone's testimony. At the conclusion of the testimony, the court requested a sidebar conference with counsel. Subsequently, outside the presence of the jury, the court summarized the conference on the record. The following colloquy ensued:

"The Court: So, first I want to put on the record that—a sidebar conversation I had with counsel at the conclusion of Joseph Rainone's testimony. Mr. Rainone obviously testified as to the contents of the state lab firearms report, exhibit 39. The defense had no objection to the admission of that report. And then Mr. Rainone testified as to the contents of the report. I just wanted to verify that the defense had no objection to Mr. Rainone testifying as to the contents of the report. He obviously was not the author of that report. And under Crawford v. Washington, [541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ], the defendant has a right to have the author of that report testify. And, [defense counsel], you indicated that you had no objection to Mr. Rainone testifying with respect to the report. Anybody want to be heard?

"[Defense Counsel]: Judge, just to complete the record—

"The Court: Yes.

"[Defense Counsel]: —that is correct. I spoke with the state's attorney. Obviously that report, it speaks for itself, it's not terribly complicated. The issue would be the individual that authored that report, I believe, is no longer in the state. So, to expedite matters, [the state] had indicated to me Mr. Rainone's credentials and what he would testify to. I saw no problem with it, whatsoever.

"The Court: Okay.

"[Defense Counsel]: So, I had no objection.

"The Court: Okay.

"[Defense Counsel]: I knew it was going to happen, and it's—

"The Court: Okay, fine.

"[Defense Counsel]: —absolutely no objection."

The jury found the defendant guilty of murder in violation of § 53a-54a (a), and he was subsequently sentenced to forty-seven years of incarceration. This appeal followed.

I

The defendant first claims that the trial court violated his sixth amendment right to confrontation by admitting the ballistics report into evidence because, even though defense counsel expressly waived the defendant's right to confront the author of the report, the waiver was invalid.⁷ Specifically, the defendant argues that, pursuant to State v. Rivera , 129 Conn. App. 619, 632, 22 A.3d 636, cert. denied, 302 Conn. 922, 28 A.3d 342 (2011), counsel's waiver of a defendant's sixth amendment right to confrontation is invalid unless (1) the defendant does not dissent from his attorney's decision, and (2) the attorney's decision is a legitimate trial tactic or part of a prudent trial strategy. The defendant acknowledges that he did not dissent, on the record, from his counsel's decision, but he contends that the trial court failed to make a finding that the decision was a legitimate trial tactic or part of a prudent trial strategy. Additionally, the defendant asserts that defense counsel's given rationale for the waiver, namely, " ‘to expedite matters,’ " cannot be considered a legitimate trial tactic or part of a prudent trial strategy, and, to the extent that the trial court accepted this rationale, it committed reversible error. For these reasons, the defendant contends that he was deprived of his confrontation right under the sixth amendment. We disagree.

The defendant concedes that he did not preserve this claim at trial and seeks review pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Under Golding , "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original; footnote omitted.) State v. Golding , supra, 239–40, 567 A.2d 823. "The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial." (Internal quotation marks omitted.) State v. Fabricatore , 281 Conn. 469, 477, 915 A.2d 872 (2007).

With respect to the first two prongs, we note that the record, which contains the full transcript of the trial proceedings, is adequate for our review; see id. ; and the claim is of constitutional magnitude because it implicates the defendant's sixth amendment right to confrontation. Accordingly, the defendant's claim is reviewable under Golding . Therefore, we next address the merits of the defendant's claim under the third prong of Golding .

"[A] constitutional claim that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party ... or that the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial .... To reach a contrary conclusion would result in an ambush of the trial court by permitting the defendant to raise a claim on appeal that his or her counsel expressly had abandoned in the trial court." (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Holness , 289 Conn. 535, 543, 958 A.2d 754 (2008).

"It is well settled that a criminal defendant may waive rights guaranteed to him under the constitution. ... The mechanism by which a right may be waived, however, varies according to the right at stake. ... For certain fundamental rights, the defendant must personally make an informed waiver. ... For other rights, however, waiver may be effected by action of counsel." (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction , 291 Conn. 62, 71, 967 A.2d 41 (2009). "As to many decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent .... Thus, decisions by counsel are generally given effect as to what arguments to pursue ... what evidentiary objections to raise ... and what agreements to conclude...