State v. Lopez

• Decision Date: 11 July 1995
• Docket Number: No. 14042,14042
• Citation: 662 A.2d 792,38 Conn.App. 434
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Heriberto LOPEZ.

Page 792

662 A.2d 792

38 Conn.App. 434

STATE of Connecticut v. Heriberto LOPEZ.

No. 14042.

Appellate Court of Connecticut.

Argued April 17, 1995.

Decided July 11, 1995.

Lauren Weisfeld, Asst. Public Defender, for appellant (defendant).

Jack W. Fischer, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Gary W. Nicholson, Asst. State's Atty., for appellee (State).

Before FOTI, HEIMAN and FRANCIS X. HENNESSY, JJ.

FOTI, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, ² conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) ³ and 53a-54a, and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. ⁴ The defendant claims that the trial court improperly (1) excluded evidence related to an out-of-court statement, (2) excused a seated juror, and (3) instructed the jury on the concept of reasonable doubt. He also claims that the state improperly impeached a defense witness on the basis of the witness' pretrial silence, and that the evidence was insufficient to sustain his conviction of possession of a weapon in a motor vehicle. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 8, 1991, at approximately 7:30 p.m., the victim, Elvis Crnkovic, and his brother Paul Crnkovic, were playing basketball at the corner of Winthrop and Davenport Avenues in New Haven. Elvis, who was sixteen years old, and Paul, who was seventeen years old, lived across the street from a vacant building on which a basketball rim was nailed. While they were playing, a brown car drove up with the defendant in the front passenger seat holding a .38 caliber revolver. A second car, a gray Mazda, also approached. The Mazda was driven by Jorge Orta, and David Morales was a passenger. Shots were fired from both cars and Elvis was hit in the back as he and his brother attempted to run away. The bullet was a "hollow point" that entered his lower back and came to rest just beneath the skin of his left collarbone. Elvis was taken to the hospital where he died as a result of his wounds. The defendant was one of the shooters.

I

The defendant first claims that the trial court improperly excluded an out-of-court statement that allegedly was the confession of a third party. We disagree.

The facts giving rise to this claim are as follows. The state produced a witness at trial named Lenise Nestir. Nestir was seventeen years old at the time of the trial. She testified that in May, 1991, she knew the defendant, Morales, Orta, and a fourth person named Alex Romero. Approximately fifteen to twenty minutes before the crime, Nestir saw Romero in the vicinity of Rosette and Button Streets. Romero had arrived in a brown car and announced to the defendant and others that he had a gun. He asked if anyone wished to go with him to Davenport Avenue. The defendant got into the vehicle and left with Romero. Knowing that there was going to be a shooting, Nestir and a friend walked to the Davenport Avenue area to watch. When she arrived, she saw the Crnkovic brothers playing basketball and then noticed the brown car arrive. After the shooting, Nestir walked back to Rosette and Button Streets where she observed Romero and the brown car. Romero took her behind a building where the defendant lived and gave her a gun. He told her to get rid of it because it was "hot." Instead, she kept the gun, intending to trade it for a car. The gun was subsequently seized from Nestir and determined to be the murder weapon.

At the defendant's trial, Nestir testified for the state. On May 14, 1993, Nestir was excused following her testimony. Prior to leaving the building, Nestir was served with a subpoena by the defense, summoning her to return on May 17, 1993. When she failed to appear, the defendant requested, and the trial court ordered, that a capias be issued to compel her appearance.

The state rested on May 19, 1993. Outside of the jury's presence, the defendant made an offer of proof as to the testimony of a woman named Robin Shade. Shade indicated that Nestir had told her that Nestir had killed the victim. She also testified that Nestir had been known to lie to her. The out-of-court statement was not allowed. In questioning whether defense counsel had made a tactical decision not to bring up the alleged statement during his cross-examination of Nestir, and the circumstances of the service of the subpoena, the court determined that Nestir, the declarant, was not unavailable. The court also determined that even if she were unavailable, the trustworthiness of the statement could not be found.

"A trustworthy third party statement exculpatory of the accused and against the penal interests of the declarant is admissible at the trial of the accused if the declarant is unavailable." (Emphasis in original.) State v. Rosado, 218 Conn. 239, 243-44, 588 A.2d 1066 (1991). The requirement of unavailability is the prerequisite to any examination as to the trustworthiness of the statement. State v. Rivera, 221 Conn. 58, 69 n. 5, 602 A.2d 571 (1992). The trial court found that the declarant was not unavailable, ⁵ and the court need not have gone further. It did, however, go further and found that the statement was not trustworthy.

Whether sufficient trustworthiness exists is a question that lies in the sound discretion of the court. Id., at 69, 602 A.2d 571. Three relevant considerations when examining the trustworthiness of a declaration against penal interest are: "(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; and (3) the extent to which the declaration is really against the declarant's penal interest." Id., quoting United States v. Guillette, 547 F.2d 743, 754 (2d Cir.1976), cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977).

The trial court made no findings relative to the first two factors; see State v. Reis, 33 Conn.App. 521, 530, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994); and there was no motion for articulation. Although the record might be sufficient to determine when such a statement may have been made and to whom, it is not sufficient to determine whether the person to whom the statement was made was one in whom the declarant would naturally confide; State v. Hernandez, 204 Conn. 377, 392, 528 A.2d 794 (1987); whether Nestir and Shade had a close and confidential relationship; State v. Sanchez, 200 Conn. 721, 726, 513 A.2d 653 (1986); and whether corroborative evidence existed that was more than a minimal amount or speculative in nature. State v. Rivera, supra, 221 Conn. at 71, 602 A.2d 571.

On the basis of the record before us, we are unable to conclude that the trial court abused its broad discretion in finding the proffered statement to be untrustworthy.

II

The defendant next claims that the trial court abused its discretion when it excused, without good cause and over objection, a seated juror. The defendant also alleges that the trial court's actions violated his rights to due process and equal protection.

On April 29, 1993, T was selected to be a member of the jury panel. She was excused that day and told to return on May 6, 1993, when trial was expected to commence. On May 3, 1993, while jury selection was still proceeding, T left a message with the clerk's office that she would not be able to serve. Later that day, the clerk of the court spoke to T and reported that T had indicated that she is a member of the Black Panthers, "[a]nd she doesn't know if that's going to have any bearing." She also indicated that she had been arrested in the past. This had been noted on T's voir dire form. Her final concern was that she had been notified of acceptance in an educational training program at the Area Cooperative Educational Services.

The trial court was concerned about the job training program and requested that the clerk call T to obtain more specific information about the program. The clerk later reported that the program was scheduled to begin the next day and would meet every Tuesday, from 9 a.m. to 11 a.m. T did not know whether she would be able to reapply for the program.

At defense counsel's request, T was recalled. She appeared in court on May 5, 1993, and the court conducted an inquiry. T stated that after she had been selected as a juror, she learned that she had been accepted into the training program. She had attended the first session and indicated that she would like to continue with the training. If jury service prevented her from attending every session, she would nevertheless go to the remaining sessions. When asked if she felt she should not serve on the jury, T responded "not necessarily." She stated that she would not be resentful if she had to serve on the jury. When asked if she wanted to serve on the jury, T stated "not particularly."

The trial court excused the juror. In response to the defendant's objections, the trial court stated: "Well, the record is not going to show [the] long pauses between her responses and my questions. She was obviously struggling with this a great deal. It's a [seven] session course as I understand it, and she would have [missed] two out of the seven sessions at least, if not more. I thought it was appropriate, I'll note your exception."

The defendant categorizes the court's action as a "capricious intrusion" into his right to "build a jury around those jurors already selected by both sides." ⁶ He argues that T said nothing when she returned to court to justify excusing her from the jury.

"The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion." State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987). The court's...