State v. Lopez

• Decision Date: 20 August 1996
• Docket Number: No. 15320,15320
• Parties: STATE of Connecticut v. Heriberto LOPEZ.
• Court: Connecticut Supreme Court

Page 950

681 A.2d 950

239 Conn. 56

STATE of Connecticut v. Heriberto LOPEZ.

No. 15320.

Supreme Court of Connecticut.

Argued April 24, 1996.

Decided Aug. 20, 1996.

Lauren Weisfeld, Assistant Public Defender, with whom was Christopher DeMarco, Assistant Public Defender, for appellant (defendant).

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

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

KATZ, Associate Justice.

The sole issue in this certified appeal is whether the Appellate Court properly upheld the trial court's decision to exclude the confession of a third party. We conclude that the trial court abused its discretion in failing to determine that the third party declarant was unavailable and, because the trial court did not decide whether her statement was trustworthy, we remand the case for further proceedings. ¹

The defendant, Heriberto Lopez, was charged with murder in violation of General Statutes § 53a-54a, ² conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48, ³ and having a weapon in a motor vehicle in violation of General Statutes § 29-38. ⁴ Following a jury trial, he was convicted on all three counts, and a total effective sentence of forty-five years imprisonment was imposed. The defendant thereafter appealed to this court and, pursuant to Practice Book § 4023 and General Statutes § 51-199(c), we transferred the appeal to the Appellate Court, which affirmed the judgment of the trial court. State v. Lopez, 38 Conn.App. 434, 435, 662 A.2d 792 (1995). The Appellate Court held, inter alia, that the trial court's exclusion of an out-of-court statement that allegedly was the confession of a third party was not improper. Id., at 436-39, 662 A.2d 792. The defendant thereafter petitioned this court for certification to appeal, which we granted. ⁵

The opinion of the Appellate Court sets forth some of the relevant facts that the jury reasonably could have found. "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." ⁶ Id., at 436, 662 A.2d 792.

One of the state's key witnesses at trial was Lenise Nestir, who testified on May 13 and 14, 1993. ⁷ Nestir testified that she had been in the Liberty Street area prior to the shooting, and that she had seen Alex Romero drive up in a brown vehicle. According to Nestir, Romero, who claimed to have had a gun in his possession, asked whether anyone wanted to accompany him to Davenport Avenue. Nestir explained that there was a group of young people in the Liberty Street area that did not get along with another group of young people that congregated in the Davenport Avenue area. Nestir testified that the defendant accompanied Romero and that, although she declined Romero's invitation to get into the car, she walked to within one block of the shooting in order to be a spectator. Although she claimed to have been on friendly terms with the victim's family, Nestir failed to warn the Crnkovic brothers, who were outside playing basketball, of the impending danger.

When Nestir reached the intersection of Winthrop and Davenport Avenues, she saw Romero's brown car approach, heading eastbound on Davenport Avenue. Because the car passed by so quickly, she could not identify its occupants and could only see shots being fired from within that vehicle. Although the state introduced evidence that there also was a gray car at the scene from which shots had been fired, Nestir testified that she never saw a gray car. ⁸ She learned later that Elvis had died as a result of that shooting.

Soon after the shooting, Nestir saw Romero driving a vehicle with the defendant and another male named Andrew as the vehicle approached a nearby dumpster, where Nestir witnessed Andrew empty shells from a gun into the dumpster. Later that same day, Romero gave the gun to Nestir to dispose of it. Instead of discarding it, Nestir testified that she kept the gun, hoping to exchange it for a car. Subsequently, the New Haven police, who had been notified of the proposed transaction, seized the gun from her but never charged her with an offense.

The defendant had intended to call Nestir as his first witness at the conclusion of the presentation of the state's case-in-chief. On Friday, May 14, 1993, Nestir's second day of testimony as a state's witness, the defendant subpoenaed Nestir to appear in court on Monday, May 17, 1993. When she failed to appear on May 17, the state represented to the court and the defendant that Nestir's mother, Sophie Nestir, had contacted the state's attorney's office and had stated that she had not seen her daughter the entire weekend. The defendant subsequently sought, and was granted, a capias.

On May 19, when the state rested its case, the defendant notified the court that the capias had not been served. Rather than calling Nestir to testify, therefore, the defendant began his defense by calling another witness. Toward the end of the day, the defendant notified the court, outside the presence of the jury, that the sheriff had been unable to locate Nestir at her mother's home--445 Poplar Street in New Haven--in order to serve the capias. The defendant then called Robin Shade, a close friend of Nestir, to make an offer of proof, hoping that the court would allow Shade to testify regarding incriminating statements that Nestir had made to her.

Shade testified that one and one-half days after the shooting, Nestir had told her about Elvis' killing. Nestir had told Shade that Paul Crnkovic, Elvis' brother, had hit Nestir in the face. Nestir remarked to Shade that she was going to retaliate by "get[ting] some boys from Liberty Street to beat his butt." Shade further testified that Nestir told her that on the day of the incident, Nestir and "some boys from Liberty Street" drove down Davenport Avenue and saw Paul and Elvis playing basketball. According to Shade, Nestir had stated that she "got a car full of guys and she said that one of them had the gun shooting it out the window up to the sky and she grabbed it from the guy and pointed it to Paulie and it didn't hit Paulie it hit someone else and she said it was his brother."

At the time of her testimony, Shade had known Nestir for nine years. Although they were not actually related, Nestir referred to Shade as her aunt. Shade took care of Nestir eight years earlier, one time for nine months and another time for eleven months. She stopped taking care of Nestir because Nestir "like[d] to go on the streets constantly." Shade testified that Nestir had been a poor influence on her daughters and had involved them in some petty criminal behavior. Furthermore, upon questioning Nestir about these episodes, she sometimes caught Nestir telling lies. Even after Nestir no longer lived with Shade, she continued to visit Shade's home, and came often during 1993. Shade believed that she knew Nestir well and that she knew when Nestir was telling the truth and when she was lying.

At the conclusion of this offer of proof, which constituted the defendant's first attempt to get Shade's testimony into evidence, the state argued, in reliance on recent cases ⁹ from this court outlining the requirements for introducing third party statements against penal interest into evidence, that "even if the court should find that Miss Nestir is unavailable ... [t]his kind of statement is clearly completely unreliable ... [because Shade] couldn't trust anything that she said...." The defendant argued in response that, based on cases addressing the admission of third party exculpatory evidence; see, e.g., State v. Boles, 223 Conn. 535, 548-49, 613 A.2d 770 (1992); he did not need to establish the unavailability of the declarant and therefore had not focused on whether Nestir was unavailable. The court concluded that it would leave the issue of the declarant's reliability for the jury to decide and focused instead on the unavailability prong of the test, concluding that "in light of her having testified here ... the court is of the opinion that it cannot make a finding that [Nestir] is unavailable...." Following the court's ruling, the defendant acknowledged his burden of proving the declarant's unavailability and sought additional time "to have the sheriffs once again try to locate and serve the capias and effect a capias upon Miss Nestir and if that's--if they are incapable of doing that, then I would put on the showing of unavailability and then offer Miss Shade after that...."

The defendant proceeded with additional witnesses and, following the afternoon recess on May 20, advised the court that he had "not had any luck in getting the capias [executed] nor this court's order authorizing the arrest of Miss Nestir. I delivered it or the sheriff took possession of it on Monday [May 17] when the order was entered. It was not received by a deputy sheriff for service until Wednesday [May 19]. That sheriff went to 445 Poplar Street, attempted to serve Miss Nestir, she was not there. The deputy sheriff...