State v. Morales

• Decision Date: 05 July 2005
• Docket Number: No. 23830.,23830.
• Citation: 876 A.2d 561,90 Conn.App. 82
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Catalino MORALES.

876 A.2d 561

90 Conn.App. 82

STATE of Connecticut v. Catalino MORALES.

No. 23830.

Appellate Court of Connecticut.

Argued February 15, 2005.

Decided July 5, 2005.

Robert E. Byron, special public defender, for the appellant (defendant).

Julia K. Conlin, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Sandra L. Tullius, senior assistant state's attorney, for the appellee (state).

SCHALLER, McLACHLAN and DUPONT, Js.

SCHALLER, J.

The defendant, Catalino Morales, appeals from the judgment of conviction, rendered after a jury trial, of various criminal offenses.¹ On appeal, the defendant argues that his rights to due process were violated when (1) the trial court improperly allowed testimony regarding evidence that was not preserved by the state and (2) the prosecutor committed misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In June, 2001, members of the Connecticut violent crimes fugitive task force received information that the defendant and Raymond Solano were located at 192 Mark Twain Drive in Hartford. Arrest warrants had been issued for both men as a result of events that occurred in Allentown, Pennsylvania. The task force, after performing reconnaissance and surveillance, confirmed that the defendant and Solano were present at that location, as was a Dodge Neon automobile. In order to safely apprehend the individuals, the Hartford police department emergency response team was called to serve the warrants and to arrest the defendant and Solano.

The team split into two groups. Additionally, team leaders assigned three snipers to the rooftop of a nearby school. After observing the defendant near the Dodge Neon, one of the groups advanced, identified themselves as police officers and ordered the defendant to get on the ground. The defendant looked at the oncoming officers, squatted between the Dodge Neon and another car, and then stood back up with a gun in his hand and his arm raised. The defendant had placed one bullet in the chamber of the gun, and then loaded the magazine to capacity. Before the defendant attempted to flee, the magazine fell out of the gun. As a result, the only ammunition remaining in the defendant's gun consisted of the single bullet in the chamber. The defendant fired one gunshot at the police officers, who subsequently returned fire. While running, the defendant pointed his gun at the pursuing officers, including Robert Burgos, an officer with the Hartford police department, and made a shooting motion, although no other bullets were discharged from his weapon. The fully loaded magazine subsequently was recovered by the police near the Dodge Neon along with a single spent shell casing.

The defendant, hit by gunfire, fell to the ground and dropped a second gun that he had been carrying. He managed to get back to his feet and to continue running toward the nearby wooded area. He raised his weapon and pointed it directly at the pursuing officers. At that point, one of the snipers, fearing for the safety of his fellow officers, shot the defendant in the leg, incapacitating him.² The defendant was arrested, tried, convicted and sentenced to a total effective term of thirty-seven years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly allowed testimony regarding evidence that was not preserved by the state. Specifically, the defendant argues that the court should not have permitted testimony regarding a bullet hole in the hood of the Dodge Neon because he was not given the opportunity to examine the hood before the state returned it to its owner, an innocent third party, who repaired the bullet hole. The defendant further contends that because the state essentially allowed the evidence of the bullet hole in the hood to be destroyed, the court should have granted his motion to strike testimony pertaining to the hood, as well as his motion for a mistrial. We disagree.

The following additional facts are necessary for our discussion of the defendant's claim. On August 7, 2002, Edwin Soto, a Hartford police detective assigned to the evidentiary services division, crime scene unit, testified regarding his investigation of the area of 192 Mark Twain Drive. Soto stated that he and his partner recovered many spent casings associated with bullets fired from Hartford police department weapons. He also testified that he found one spent casing near the Dodge Neon that did not come from a Hartford police department weapon and that upon examining the Dodge Neon, he discovered what he determined to be a bullet hole in the hood. The hood of the motor vehicle had been raised in the upright position at the time of the shooting. Defense counsel objected, and the court excused the jury. Defense counsel argued that he had not received notice of what he characterized as expert testimony, but admitted that he had reviewed pictures of the hood of the Dodge Neon with the hole in it. The court instructed the state to refrain from eliciting testimony regarding the trajectory of the bullet. The court also informed the defendant that it would allow Soto to be recalled for cross-examination after giving defense counsel time to examine the bullet hole in the hood.

Soto testified in front of the jury that he had found a bullet hole in the passenger side of the hood. The hole appeared to be fresh, and the point of entry was the exterior of the hood. Several photographs of the hole were introduced into evidence. The jury also heard testimony that two of the officers had been located directly behind the hood when the defendant fired his gun. The court informed the jury that the defendant's cross-examination of Soto would be postponed until a later date.

On August 12, 2002, the defendant represented to the court that the state had made efforts to locate the Dodge Neon in order to allow the defendant to examine the bullet hole. The car had been returned to its owner, Johnny Santiago, on July 17, 2001. Guillermo Acaron, the defendant's investigator, attempted to serve a subpoena on Santiago, who stated that he did not want to disclose the location of the Dodge Neon or to cooperate in any manner. On August 14, 2002, the court issued a capias ordering that Santiago be taken into custody.³ Later that afternoon, Acaron testified that he had examined the Dodge Neon and that it appeared to have been repaired with patching agent, sanded smooth and primed for painting. Acaron also stated that he had taken photographs of the repaired hood, but had not yet developed them.

The defendant's expert, Marshal Robinson, testified that he reviewed the photographs and agreed that a bullet caused the hole in the hood. He further testified that had he been able to examine the hood personally, he could have determined the trajectory of the bullet, its angle of entry and its caliber. Robinson testimony was consistent with Soto's opinion that the bullet that caused the hole originated from the rear of the car proceeding toward the front. Robinson stated that he did not go with Acaron to view the repaired hood of the Dodge Neon.

On appeal, the defendant claims that the failure of the police to preserve the bullet hole in the hood of the Dodge Neon violated his state constitutional right to due process.⁴ Because the court found no evidence of bad faith on the part of the police in failing to preserve the hood, as required under the federal standard set forth in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and because the defendant has not challenged that finding on appeal, we focus our analysis on the state constitution.⁵ See State v. Valentine, 240 Conn. 395, 416-17, 692 A.2d 727 (1997); see also State v. Joyce, 243 Conn. 282, 300, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S.Ct. 1523, 140 L.Ed.2d 674 (1998); State v. Jones, 50 Conn.App. 338, 356-57, 718 A.2d 470 (1998), cert. denied, 248 Conn. 915, 734 A.2d 568 (1999).

In State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995), our Supreme Court squarely addressed the situation in which the police department fails to preserve evidence that might be useful to the defendant. Id., at 714, 657 A.2d 585. Our Supreme Court concluded: "[T]he good or bad faith of the police in failing to preserve potentially useful evidence cannot be dispositive of whether a criminal defendant has been deprived of due process of law. Accordingly, we, too, reject the litmus test of bad faith on the part of the police, which the United States Supreme Court adopted under the federal constitution in Youngblood. Rather, in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the [State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985)] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence." (Internal quotation marks omitted.) State v. Morales, supra, at 726-27, 657 A.2d 585; see also State v. Valentine, supra, 240 Conn. at 417, 692 A.2d 727; State v. Coleman, 38 Conn.App. 531, 535, 662 A.2d 150, cert. denied, 235 Conn. 906, 665 A.2d 903 (1995). If the court finds that the defendant has been prejudiced as a result of the lost evidence, it may take whatever action it deems necessary in order to provide a proper remedy. See State v. Weaver, 85 Conn.App. 329, 350-51, 857...