State v. Ortiz

• Decision Date: 17 March 2000
• Citation: 252 Conn. 533,747 A.2d 487
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ANGEL LUIS ORTIZ STATE OF CONNECTICUT v. JULIO DIAZ-MARRERO

252 Conn. 533

747 A.2d 487

STATE OF CONNECTICUT v. ANGEL LUIS ORTIZ

STATE OF CONNECTICUT v. JULIO DIAZ-MARRERO

(SC 15786), (SC 15670)

Supreme Court of Connecticut.

Argued December 2, 1999.

Officially released March 17, 2000¹.

McDonald, C. J., and Norcott, Katz, Sullivan and Peters, JS. Pamela S. Nagy, assistant public defender, for the appellant (defendant in the first case).

Louis S. Avitabile, special public defender, for the appellant (defendant in the second case). Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Herbert E. Carlson, Jr., supervisory assistant state's attorney, for the appellee in both cases (state).

Opinion

NORCOTT, J.

After a joint jury trial, the defendants, Angel Luis Ortiz and Julio Diaz-Marrero, were each found guilty of one count of capital felony in violation of General Statutes §§ 53a-54b (8)² and 53a-8;³ two counts of capital felony in violation of §§ 53a-54b (5)⁴ and 53a-8; two counts of murder in violation of General Statutes §§ 53a-54a (a)⁵ and 53a-8; two counts of felony murder in violation of General Statutes § 53a-54c;⁶ one count of conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a);⁷ two counts of kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (A), (B) and (C)⁸ and 53a-8; one count of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4)⁹ and 53a-8; one count of conspiracy to commit kidnapping in the first degree in violation of §§ 53a-92 (a) (2) (A), (B) and (C) and 53a-48 (a); and conspiracy to commit robbery in the first degree in violation of §§ 53a-134 (a) (4) and 53a-48 (a).¹⁰ The trial court sentenced Ortiz to a total effective sentence of life imprisonment without the possibility of release, and Diaz-Marrero to a total effective sentence of life imprisonment without the possibility of release plus forty years imprisonment. Both defendants have appealed their judgments of conviction directly to this court pursuant to General Statutes § 51-199 (b) (3).¹¹

The jury reasonably could have found the following facts. In the late hours of July 27, 1994, and into the early hours of July 28, 1994, the defendants carried out a plan to kidnap, rob and kill Hector Alvarado (Alvarado), and his wife Migdalia Bermudez (Bermudez). The victims were abducted and robbed in Hartford, and then taken to Rocky Hill where they were executed by Diaz-Marrero with a twelve gauge shotgun. Alvarado was shot in the head and he died instantly. Bermudez was shot in the back, hips and buttocks, she was left for dead in the travel portion of the road, and she died approximately five hours later at Hartford Hospital.

Alvarado was a known drug dealer, who conducted an illegal drug selling operation, with the assistance of Ortiz, at a residential apartment building located at 66 Webster Street in Hartford. Ortiz was Alvarado's brother-in-law, and he lived at 66 Webster Street. Alvarado had requested that Ortiz build a secure box in which Alvarado could store his drugs and money. Accordingly, Ortiz built the secure box and Alvarado kept it in the basement of his home at 109 Adelaide Street in Hartford.

Diaz-Marrero had come to Hartford from Caguas, Puerto Rico, a few weeks prior to the murders. He stayed for approximately one week at 66 Webster Street with Wilson Rodriguez, who was another resident of the building. At trial, Wilson Rodriguez testified that on July 26, 1994, shortly after Diaz-Marrero had stopped staying with him, his apartment was burglarized and two shotguns and a rifle were stolen. Before the jury, Wilson Rodriguez identified the guns that were found near the crime scene as those that had been stolen.

On Wednesday, July 27, 1994, at 8:30 p.m. and again at 9:30 p.m., Diaz-Marrero and Ortiz went to the home of Alvarado's mother, Maria Cruz Rodriguez (Rodriguez), looking for Alvarado. Later that night, a van driven by Ortiz stopped on Park Street in Hartford and Diaz-Marrero, who was in the van, asked Ramon Caraballo if he wanted to buy some drugs. Caraballo knew Diaz-Marrero as "Tongo" and testified that they occasionally had used drugs together. Caraballo got into the van and sat in the front seat next to Ortiz.

Another resident of 66 Webster Street, Jesus Roman, who also knew Diaz-Marrero as "Tongo," testified about the events that occurred on the evening of the murders. According to Roman's testimony, at 11 p.m., Tongo pulled up in a van and asked Roman if Alvarado was around and if he had drugs. Roman told him that Alvarado was around and that he had drugs, and Roman offered to buy the drugs for Diaz-Marrero. Diaz-Marrero declined Roman's offer, saying that he wanted to deal with Alvarado directly and he asked Roman to tell Alvarado that Diaz-Marrero would be waiting for him on Campfield Avenue.

Roman conveyed Diaz-Marrero's message to Alvarado and offered to go along. The two men and Bermudez then drove in Alvarado's car to Campfield Avenue and parked behind the van. Diaz-Marrero exited the van, walked toward Alvarado's car and asked him to step out of the car so they could speak alone. Alvarado and Diaz-Marrero walked to the front of the van and Roman and Bermudez exited the car. As Alvarado returned to his car, Diaz-Marrero, holding a shotgun, walked toward Alvarado, Bermudez and Roman. Diaz-Marrero took Bermudez by the arm and fired the shotgun into the sidewalk. Just as Diaz-Marrero fired the shotgun into the sidewalk, Caraballo, who was attempting to leave the scene and had just opened the door of the van and placed a foot on the ground, was struck in the throat by a ricocheting shotgun slug or pellet. Roman saw Diaz-Marrero take Bermudez, who was crying, and put her into the van. Still armed, Diaz-Marrero returned for Alvarado, who took money out of his pocket and offered it to him. Roman then saw Alvarado return the money to his pocket and watched Diaz-Marrero point the shotgun at Alvarado, take him by the arm and lead him into the van. Roman watched the van drive away, turning left onto Adelaide Street.

Caraballo, who had reentered the van after being shot, testified that although he was injured and bleeding, he was also alert and conscious. He claimed that Diaz-Marrero had said "[l]et's go to the man's house." The van stopped a short distance later in front of an apartment building and Diaz-Marrero, still armed with the shotgun, took Alvarado out of the van and into the apartment building. Caraballo, Ortiz and Bermudez stayed in the van. Several minutes later, Diaz-Marrero and Alvarado returned to the van. Diaz-Marrero carried a paper bag, which he then handed to Ortiz. Diaz-Marrero then ordered Ortiz to drive off.

The van traveled through some traffic lights and then entered a highway. After the van had traveled a short distance, it stopped near the side of the road. Diaz-Marrero exited the van and ordered the victims to get out and they complied. Caraballo and Ortiz remained in the van. Several shots were then fired. Diaz-Marrero returned to the van without the victims and said to Ortiz, "[l]et's get out of here." A few minutes later, Diaz-Marrero threw the shotguns out the passenger side window of the van. The van then returned to Hartford. Caraballo was let out on Park Street.¹²

On July 29, 1994, a Rocky Hill teenager discovered a shotgun in the grass by the side of Route 3. The police were summoned, they seized the shotgun, and they then discovered and seized the sawed-off stock and a second shotgun that was found nearby. Both shotguns were twelve gauge: one was a sawed-off ERA double-barreled shotgun, and the other was a High Standard single-barreled shotgun. Several discharged shells found at the scene were determined to be Winchester Super X double-O buck shotgun shells fired from the High Standard shotgun. Bermudez had been shot with both double-O buckshot and birdshot. The recovered ammunition components were consistent with the ammunition stolen from Wilson Rodriguez' apartment.

Aida Bermudez, the sister of both Bermudez and Ortiz, testified that at Bermudez' wake on July 31, 1994, Ortiz told her certain details about the murders. She testified that Ortiz told her the following information: that three men in a van had kidnapped and killed the victims; that the victims had been picked up on Webster Street and taken to Campfield Avenue where a gun was fired into the sidewalk and pointed at Alvarado, who was then forced into the van; that Bermudez was not an intended victim but was nevertheless forced into the van; that the victims were taken to their home and forced into the basement, where the men believed that drugs and money were stored in a wooden box; that drugs and money were stolen; that the victims were taken in the van to Rocky Hill; and that Bermudez was shot when she tried to flee her abductors.

Diaz-Marrero left Connecticut shortly after the murders. A police officer from Caguas, Puerto Rico, testified that he saw Diaz-Marrero in Caguas on August 1, 1994. Ortiz also left Connecticut and was arrested in New Jersey on August 31, 1995.

Both defendants argue on appeal that the trial court improperly: (1) refused to grant them a new probable cause hearing despite the state's failure to disclose in a timely manner certain exculpatory evidence; (2) refused to suppress the photographic identification of Diaz-Marrero by Rodriguez on the ground that it was overly suggestive; (3) deprived the defendants of their right to confront witnesses by refusing to conduct an in camera review of Rodriguez' psychiatric records; (4) rendered judgments of conviction on three counts of conspiracy and sentenced the defendants separately for each conviction, thereby violating the constitutional prohibition against double jeopardy; and (5) refused to instruct the jury regarding the credibility of Caraballo.

In addition, each defendant raises distinct issues relevant to his own case on...