State v. Castro, AC 43386

CourtAppellate Court of Connecticut
Writing for the CourtPRESCOTT, J.
Decision Date29 September 2020
PartiesSTATE OF CONNECTICUT v. LUIS CASTRO
Docket NumberAC 43386

STATE OF CONNECTICUT
v.
LUIS CASTRO

AC 43386

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Submitted on briefs April 6, 2020
September 29, 2020


Keller, Prescott and Devlin, Js.

Syllabus

Convicted of the crime of murder in connection with the shooting death of the victim, the defendant appealed. He claimed that the trial court violated his right under the confrontation clause of the sixth amendment when it admitted into evidence a certain ballistics report, whose author did not testify at trial, after defense counsel expressly waived the defendant's confrontation right. The state had elicited testimony from R, a police forensics supervisor, about the findings of the report, which R neither authored nor peer-reviewed. Defense counsel indicated to the court that, to expedite matters, he had no objection to the admission of the report or to R's testifying about its contents. The defendant further claimed that this court should hold that the right to confrontation can only be personally waived by the defendant because article first, § 8, of the Connecticut constitution provides greater protection than the federal constitution. Held:

1. The defendant could not prevail on his unpreserved claim that counsel's waiver of his confrontation right was invalid because the trial court failed to make a finding that counsel's decision was a legitimate trial tactic or part of a prudent trial strategy: despite the defendant's claim that his counsel's rationale for the waiver, which was to expedite matters, could not be considered a legitimate trial tactic or part of a prudent trial strategy, counsel's indication to the court that he had no objection to the admission of the ballistics report or to R's testifying as to its contents constituted a valid, express waiver of the defendant's sixth amendment confrontation clause claim, and this court declined to apply a rule requiring the trial court to explore defense counsel's rationale for the waiver and to make a finding that it was either a legitimate trial tactic or part of a prudent trial strategy before accepting the waiver, our Supreme Court having repeatedly and expressly rejected the proposition that a trial court is required to assess defense counsel's professional judgment before accepting his or her waiver of a constitutional claim; moreover, in circumstances in which defense counsel's waiver of a constitutional claim constitutes a violation of the defendant's right to the effective assistance of counsel, the defendant may seek recourse through habeas corpus proceedings.

2. The defendant's claim that the right to confrontation can only be personally waived by the defendant was unavailing, as his assertion that article first, § 8, of the state constitution provides greater protection than the federal constitution was contrary to established precedent.

Procedural History

Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Waterbury and tried to the jury before Alander, J.; verdict and judgment of guilty, from which the defendant appealed. Affirmed.

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, Jr., senior assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, filed a brief for the appellee (state).

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Opinion

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

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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

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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, ...

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