State v. Gonzales

• Decision Date: 09 March 1982
• Citation: 186 Conn. 426,441 A.2d 852
• Parties: STATE of Connecticut v. Angel GONZALES.
• Court: Connecticut Supreme Court

Page 852

441 A.2d 852

186 Conn. 426

STATE of Connecticut v. Angel GONZALES.

Supreme Court of Connecticut.

Argued Jan. 6, 1982.

Decided March 9, 1982.

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

Carl J. Schuman, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Patrick J. Clifford, Asst. State's Atty., and Elizabeth Palmer, for appellee (state).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and SHEA, JJ.

PETERS, Associate Justice.

The defendant, Angel Gonzales, appeals from his conviction on a five-count information charging him with three counts of robbery in the first degree; General Statutes § 53a-134(a)(2); one count of conspiracy; General Statutes § 53a-48; and one count of larceny in the second degree; General Statutes §§ 53a-119, 53a-119(8) and 53a-123(a)(1). The defendant was found guilty after a trial to a jury. His appeal raises two issues, one evidentiary and one procedural.

The jury might reasonably have found the following facts. On October 26, 1978, at about 11 p. m., two men, one armed with a shotgun, robbed the cash registers, the manager, and the patrons of a Lum's restaurant in Cheshire. The robbers wore ski masks which substantially concealed their facial features; they spoke with a Spanish accent. Only the manager was able to identify the defendant as the gunman who had committed the robbery. When the police arrived at the scene at about 11:15 p. m., they found a small wooden chip on the restaurant floor and several bills of various denominations in the parking lot outside the restaurant.

About an hour earlier, at a different restaurant in Cheshire, about five miles north of the Lum's, the defendant and his brother were observed having a drink. They left that restaurant in a white Mustang with the license plate VN 2804. Immediately after the robbery, a white Mustang was seen travelling north, at a high rate of speed, at a location between the two restaurants. The VN 2804 Mustang, which had been stolen the day before the robbery, was not otherwise connected with the incident at the Lum's. ¹ None of the witnesses at the Lum's had seen how the robbers had come or how they had fled from the scene.

Three days after the robbery the police recovered a shotgun to which the wooden chip found on the Lum's floor belonged. The gun was recovered in another stolen car; when that car was stopped, it was not occupied by the defendant. Dusting of the gun produced no identifiable fingerprints.

The most damaging evidence directly connecting the defendant with the Lum's robbery came from Eric Colon. Colon was awaiting sentence and had been promised favorable consideration on a number of unrelated outstanding arrest warrants. He testified to one conversation before the robbery in which the defendant had said that he was planning "to hit" the Lum's, and to two conversations after the robbery in which the defendant had said that he had "hit" the restaurant.

The defendant does not challenge the sufficiency of this evidence to support his conviction on all counts of the information. Instead, he maintains that the trial court erred (1) by admitting into evidence prejudicial hearsay of police radio broadcasts stating that a white Mustang was involved in the Lum's robbery and (2) by failing to inspect, in camera, a written statement given to the state by Eric Colon and by failing to have the statement in its entirety sealed and preserved as an exhibit. We will consider these claims of error separately.

The defendant's evidentiary claim must be placed into context. At the trial, Cheshire Police Lieutenant Miran Verner testified, without objection, that he had observed a white Mustang speeding north on Main Street as he was making his way southward to investigate the Lum's robbery. He also testified, without objection, that he had radioed to the police cars behind him to be advised of a white northbound Mustang. Thereafter, two other Cheshire police officers, Sergeant Mark Youngquist and Patrolman Stephen O'Connor, who came to assist in the investigation of the robbery, were permitted to testify, over objection, that they had heard radio broadcasts about the robbery and about the white Mustang. Despite some effort to head off the white Mustang, it was not again seen by the police on the night of the robbery.

The defendant maintains that the officers' testimony should not have been admitted into evidence because their statements constituted hearsay about the involvement of the white Mustang. We do not agree. The defendant's objections might have had some merit had the questionable association of the car with the robbery not been put into evidence by the Verner testimony. Verner's testimony was, as the defendant concedes, not subject to objection because he testified to what he himself had observed. The other officers merely reported what they had heard over the police radio as an explanation for their own subsequent conduct. The testimony of the other officers was not offered for the truth of the assertions made over the police radio but rather to show the effect of the broadcasts on their hearers. Such testimony is not barred by the hearsay rule. State v. Vennard, 159 Conn. 385, 392, 270 A.2d 837, cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1970); see United States v. DeVincent, 632 F.2d 147, 151 (1st Cir.), cert. denied, 449 U.S. 986, 101 S.Ct. 405, 66 L.Ed.2d 249 (1980); United States v. Stout, 599 F.2d 866, 869-70 (8th Cir.), cert. denied, 444 U.S. 877, 100 S.Ct. 163, 62 L.Ed.2d 106 (1979); State v. McDowell, 179 Conn. 121, 123-24, 425 A.2d 935 (1979); 2 Wharton, Criminal Evidence (Torcia Ed. 1972) § 274; 6 Wigmore, Evidence (Chadbourn Ed. 1976) § 1789. ²

The defendant's alternate claim of error arises out of the denial of his request to have the court review the entirety of a written statement given to the state by Eric Colon, the principal witness against the defendant. After Colon's testimony, the defendant was provided with a small portion of the Colon statement, some seven pages out of a transcribed statement of over one hundred pages. The defendant thereupon asked for the remainder of the statement in order to be able to conduct a full cross-examination concerning Colon's self-interest in testifying on behalf of the state. The state resisted the defendant's request on the ground that the statement contained pending matters that were likely to lead to future arrests of individuals whom the state did not want forewarned. The defendant then asked the trial court to inspect the statement in camera to determine whether all of the material relevant to the present case had in fact been disclosed. The state, in apparent agreement with this proposed procedure, responded, "(t)hat's the only thing we can do is have your Honor go through the whole statement. I can show you which parts I took out of it." Nonetheless, the trial court chose not to conduct an inspection of the Colon statement, and did not order it sealed as an exhibit. The court concluded that the defendant's interests would be sufficiently protected by permitting Colon to be cross-examined concerning any other possible criminal involvement that might have influenced his testimony, and by charging the jury in cautionary language about Colon's credibility. The defendant took a timely exception to this substitute procedure. He now renews his argument that he was entitled to a judicial inspection of the whole Colon statement to determine whether it contained additional material relating to Colon's testimony in this case. We agree.

Our rules of practice have provided discovery procedures for criminal cases since 1972. ³ Under the provisions of §§ 752 ⁴ and 753 ⁵ of the Practice Book, after a witness has testified for the state, "the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness," unless the prosecuting authority claims that the statement "contains matter which does not relate to the subject matter of the testimony of the witness ...." In that event, "the judicial authority shall order the prosecuting authority to deliver such statement for the inspection of the judicial authority in camera." These provisions, repeatedly employing the word "shall," are mandatory. We have held that they are available to criminal defendants as a matter of right. State v. Villafane, 171 Conn. 644, 668, 372 A.2d 82, cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1976). ⁶ The judicial authority is obligated, by these provisions, to honor a defense request for inspection of the statement of a state's witness and to order the statement sealed as an exhibit if the court decides to withhold portions thereof as unrelated to the witness' testimony.

The state does not take issue with these principles but argues that they are inapplicable in the present case. The state's first contention is that the defendant failed to make a proper request for Colon's statement because the defendant's request did not cite the relevant sections of the Practice Book. While we can imagine circumstances where such an omission might cause confusion, the present record demonstrates no misunderstanding about what the defendant was seeking and why. Throughout the trial, the state had routinely honored defense requests for the statements of other state witnesses after they had testified. The state expressly acquiesced in the proposal for a judicial inspection, in camera, of the Colon statement. The trial court was informed that the defendant needed the Colon statement for the purpose of a full cross-examination. It premised its rejection of the defendant's request not on its uncertainty about what the defendant sought but on its acceptance of the accuracy of the representations made by the prosecuting authority. In these circumstances, it would be elevating form over...