State v. Cruz, 13419

• Decision Date: 01 August 1989
• Docket Number: No. 13419,13419
• Citation: 562 A.2d 1071,212 Conn. 351
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jose L. CRUZ.

Page 1071

562 A.2d 1071

212 Conn. 351

STATE of Connecticut v. Jose L. CRUZ.

No. 13419.

Supreme Court of Connecticut.

Argued March 30, 1989.

Decided Aug. 1, 1989.

Katherine C. Callahan, with whom was Robert M. DeCrescenzo, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Gary W. Nicholson, Asst. State's Atty., for appellee (State).

Before SHEA, GLASS, COVELLO, HULL and SANTANIELLO, JJ.

SANTANIELLO, Associate Justice.

The defendant, Jose L. Cruz, was arrested and charged with murder in violation of General Statutes § 53a-54a(a). He entered a plea of not guilty and elected a jury trial. After the jury had found the defendant guilty as charged, he was sentenced to prison.

The defendant claims on appeal that the trial court erred in: (1) permitting witnesses to testify at trial as to information that was provided to them by persons not presented as witnesses at trial and by persons who were unknown and unnamed; (2) permitting impeachment testimony against a defense witness; (3) denying the defendant's motion for a mistrial made as a result of the testimony of one witness purporting to establish a homosexual relationship between the defendant and the victim; and (4) denying the defendant's motion for a mistrial based on the testimony of a police officer that an argument had occurred at the scene of the crime. We find no error.

The jury reasonably could have found the following facts. On October 29, 1986, at 8:30 p.m. a shooting resulting in the death of Walter Cothran, Jr., took place in a courtyard near building 11 at the Evergreen Apartments on Albion Street in Bridgeport. Among the investigating officers were Officers Richard Herlihy and Scott Gordon, and Detectives David Silva, Frank Williams and Leo Krusinski, all of the Bridgeport police department. Upon arrival at the scene, Officers Herlihy and Gordon observed a black male lying on the ground in a pool of blood. Close examination of the body failed to disclose any respiration or pulse. Herlihy observed a bullet wound in the victim's neck, but he could find neither a gun nor any spent shells in the area. He saw that the area was illuminated by lights on the buildings. He then talked to Melvin Riley, Andrew Lindsay, two black females who refused to identify themselves and several others who afforded no information and who also declined to identify themselves. Herlihy had ascertained from three unidentified and unnamed witnesses that "there [had been] an argument by building 11." As a result of information received from these sources, and descriptions of an Hispanic man who went by the name Cheo, provided by Lindsay and the two black females, Herlihy issued a broadcast over the police radio to bring in Cheo for questioning.

While riding a bicycle to a nearby store, Allison Craddock saw the defendant and Cothran talking and drinking beer between buildings 10 and 11. Upon her return from the store and from a distance of approximately ten feet, she witnessed the defendant standing over Cothran and shooting him a total of five times. Thereafter, she saw Cruz run away.

At about the same time, Melvin Riley, who was walking along a fence about 100 yards from the scene, heard five shots and saw Cruz firing his gun into Cothran where he lay on the ground. Later in the evening at the detective bureau, Detective David Silva interviewed Riley in connection with the shooting and showed him six photographs from which he identified a photograph of the defendant as that of the person who shot Cothran.

Detective Leo Krusinski arrived at the scene of the shooting shortly after the other officers and detectives. An unidentified individual described Cheo's physical appearance to the detective and also placed Cheo at the scene. Krusinski also learned from these sources that Cheo was the alleged street name of Jose Cruz. Detective Frank Williams learned from unidentified sources that Cruz had allegedly left the scene of the shooting in a blue Cadillac, and Williams conveyed this information to Krusinski. After acquiring this information Krusinski left the scene in pursuit of that vehicle. The police found and stopped a blue Cadillac, but the defendant was not in it. Omar Bahamonde was driving the Cadillac and Richard Ortega was a passenger.

The defendant, who had fled the state, was later arrested in Kentucky, and returned to Bridgeport.

At trial, Herlihy testified that he and Gordon had been dispatched to the Evergreen Apartments in response to a report of a shooting near building 11. He stated that after ascertaining that Walter Cothran had been shot and apparently fatally wounded, he commenced an investigation during which he spoke to Andrew Lindsay, a black male, two unidentified black females and one unidentified black male, none of whom testified at trial. Herlihy further testified that he had been told by these individuals that "there was an argument by building 11" and that, on the basis of the information provided by these same individuals, he sought an Hispanic male whose street name was Cheo. None of the other witnesses called at trial testified that the defendant was involved in an argument at the scene. The court overruled the defendant's objection to Herlihy's testimony as hearsay and denied his motion for a mistrial. The court, however, gave the jury a curative instruction.

On direct examination, Krusinski testified that he had questioned Richard Ortega at the detective bureau on the evening of the shooting. As a result of the information he had received from Ortega, Krusinski stated that he had attempted to locate Jose Cruz. The defendant objected to Krusinski's testimony regarding this information as hearsay. The court also overruled this objection.

Riley was called to testify by the state and during direct examination he made reference to an alleged homosexual relationship between the defendant and the deceased. Defense counsel objected and the portion of the testimony that contained the word homosexual was stricken. Following Riley's testimony, defense counsel moved for a mistrial on the ground that Riley's reference to a homosexual relationship between the defendant and Cothran so prejudiced the defendant that he did not receive a fair trial. Although the court denied the defendant's motion, it gave the jury a curative instruction immediately following Riley's response.

During trial, the defendant called Omar Bahamonde to testify on his behalf. Bahamonde testified that he did not see the defendant at any time during the night of the shooting. On cross-examination, the state attempted to impeach him by inquiring whether he was the same man who had been arrested for felony murder in another pending case unrelated to the shooting of Walter Cothran. The court allowed the cross-examination as relevant to bias, interest and motive because Cruz family members would be testifying in Bahamonde's behalf at his trial.

I

We turn now to the defendant's first claim of error, that the trial court erred in permitting Krusinski to testify as to the information he secured from Richard Ortega some hours after the shooting. Krusinski testified that Ortega gave him information concerning the shooting of Cothran and on the basis of that information, Krusinski attempted to locate Jose Cruz.

Similarly, the defendant's fourth claim of error is that the trial court erred in allowing Herlihy to testify concerning information provided to him by Andrew Lindsay and two unidentified females, none of whom testified at the trial. Herlihy testified that after interviewing these parties at the scene of the shooting, he sought an Hispanic male whose street name was Cheo. Because the defendant propounds the same arguments for his claims of error by the trial court in allowing Krusinski and Herlihy to testify about the statements made to them by others, we join our discussion of those two issues.

The defendant claims that the testimony of Krusinski and Herlihy was inadmissible hearsay offered to identify the defendant as being involved in the shooting of Cothran before any evidence linking the defendant to the crime had been offered. The defendant argues, therefore, that he was denied his sixth amendment right to confront the witnesses against him by the failure of the state to call Ortega, Lindsay and the two unidentified females to testify. We disagree with the defendant's characterization of Krusinski's and Herlihy's testimony.

" 'An out-of-court statement is hearsay when it is offered to establish the truth of the matters contained therein.' State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); State v. Randolph, 190 Conn. 576, 584, 462 A.2d 1011 (1983); State v. DeFreitas, 179 Conn. 431, 439-40, 426 A.2d 799 (1980); State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 (1979)." State v. Silveira, 198 Conn. 454, 473, 503 A.2d 599 (1986). "A statement offered solely to show its effect upon the hearer is not hearsay. Counsel [Council] on Probate Judicial Conduct re: James H. Kinsella, 193 Conn. 180, 200, 476 A.2d 1041 (1984); State v. Zdanis, 173 Conn. 189, 192 n. 1, 377 A.2d 275 (1977)." State v. Silveira, supra.

Although Krusinski questioned Ortega and Herlihy interviewed Lindsay and the two unidentified females for information relating to the crime, no testimony was elicited as to anything the defendant did or was accused of doing. Had Krusinski and Herlihy been permitted to testify as to the specific contents of those conversations, that testimony would have been inadmissible. See State v. McDowell, 179 Conn. 121, 123, 425 A.2d 935 (1979); State v. Vennard, 159 Conn. 385, 392, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971). The state, however, offered Krusinski's and Herlihy's testimony not to identify the defendant as being involved in the shooting, but for the limited purpose of explaining the witnesses' reasons for instituting a...