State v. Ortiz

• Decision Date: 14 June 2022
• Docket Number: SC 20348
• Citation: 343 Conn. 566,275 A.3d 578
• Parties: STATE of Connecticut v. Rafael ORTIZ
• Court: Connecticut Supreme Court

343 Conn. 566

275 A.3d 578

STATE of Connecticut

v.Rafael ORTIZ

SC 20348

Supreme Court of Connecticut.

Argued January 10, 2022

Officially released June 14, 2022

Richard Emanuel, New Haven, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and John F. Fahey, supervisory assistant state's attorney, for the appellee (state).

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

KELLER, J.

The defendant, Rafael Ortiz, appeals¹ from the judgment of conviction, rendered following a jury trial, of murder in violation of General Statutes § 53a-54a (a).² The defendant claims that (1) prosecutorial impropriety deprived him of his right to a fair trial, (2) the trial court committed evidentiary and constitutional error by precluding defense counsel from using certain prior felony convictions to impeach two of the state's witnesses, and (3) the trial court erred in its charge to the jury. We disagree with each of these claims and, accordingly, affirm the judgment of the trial court.

The record reveals the following facts, which the jury reasonably could have found, and procedural history. On the evening of June 10, 2003, the victim, Benjamin Baez, Jr., and his friend, Enrique Lugo, were "hanging out" and smoking phencyclidine (PCP). Shortly before midnight, Lugo drove the two men in his car to Main Street in Hartford, near Salvin Shoes, to buy more PCP. Once there, the victim got out of the parked car while Lugo remained in it. Shortly after the victim returned to the car, Lugo saw the defendant, whom he had known for many years and considered a friend, approach the car, aim a gun at the victim, and shoot the victim through the front passenger side window. After the shooting, Lugo rushed the victim to Saint Francis Hospital and Medical Center, where he was later pronounced dead.

Wilbur Irizarry and Lisa Rosario also witnessed the shooting.³ Irizarry and his cousin had gone to Main Street to "hang out" with friends in front of Bashner's Liquors, down the street from Salvin Shoes. When they arrived, Irizarry noticed that the defendant, whom he knew as "Felo," was there with a man who went by the name "Lu-Rock." Although Irizarry was aware that the defendant sold drugs, it was unusual to see him doing so at this location. Irizarry heard the defendant arguing with another man whom Irizarry did not know but who was later identified as the victim. Initially, he could not hear what the men were arguing about. As he got closer, however, he heard the victim ask the defendant, "[Felo], can you give me some work?" Irizarry, who previously had been involved in the sale of drugs, understood this to mean that the victim was asking the defendant to "give [him] some drugs so [that he could] make some money." In response, Irizarry heard the defendant say that "he wasn't going to give him [any]," to which the victim replied that he was "going to rob [the defendant] anyways." Irizarry then watched the victim walk toward a car that was double parked a short distance away and get in the front passenger seat.

Because the victim and the defendant were "not talking friendly," Irizarry "figure[d] something [was] going to happen" and decided to leave. While walking away, Irizarry looked over his right shoulder and saw the defendant rush over to his vehicle, open the front passenger door, and reach inside for something. He then saw the defendant walk to the front passenger side of the car in which the victim was seated, stop approximately three to four feet away, extend his arm, and shoot the victim.⁴ After hearing the shot, Irizarry and his cousin jumped into their own vehicle and sped away. Irizarry did not report the shooting at the time because he was afraid that, if he contacted the police, then what "happened to [the victim] ... [would] happen to [him]."

Rosario was with the defendant on the night of the murder. She, her sister, and her cousin had spent the evening driving around Hartford with the defendant— who was driving his friend "Lu-Rock's" vehicle—drinking, smoking PCP, and generally "having a good time." On Main Street, across from Salvin Shoes, the defendant exited the vehicle, while Rosario and the other women remained in it. Rosario later heard the defendant arguing loudly with the victim, whom she knew as "Benji." Subsequently, she saw the defendant fire a gun into the car in which the victim was seated. After the shooting, the defendant got back into his own vehicle, and he and Rosario immediately left the scene. Rosario never reported the shooting to the Hartford police because she was afraid.

The day after the shooting, police officers searched Lugo's car, discovered a defect in the right front passenger seat, and thereafter found and seized a .40 caliber lead projectile from the seat cushion. In an effort to determine the trajectory that the bullet had traveled from the time it left the weapon until the time it came to its resting point or, in other words, to determine the angle from which the bullet had been fired into Lugo's car, the officers placed "trajectory rods" between two fixed points—namely, the location where the bullet entered the seat and the location where the bullet ultimately rested. On the basis of these points, coupled with the position of the entry and exit wounds found on the victim's body and the presence of gunpowder on the shirt that the victim had been wearing when he was killed, the officers and examiners from the state forensic science laboratory concluded that the bullet had been fired into the victim at close range—approximately two feet—and from an angle slightly over the car's door frame.

Despite their best efforts, the police were unable to develop any viable leads, and the case soon went cold. In 2015, however, investigators from the cold case unit of the Office of the Chief State's Attorney (cold case unit) learned that Lugo, Irizarry, and Rosario were all present when the shooting occurred. After all three witnesses identified the defendant in a double-blind, sequential photographic array procedure, an investigatory grand jury was convened pursuant to General Statutes § 54-47c.⁵ Between December 2, 2015, and April 22, 2016, the appointed grand juror heard testimony and received exhibits. On May 24, 2016, the grand juror found probable cause to believe that the defendant had murdered the victim.

Following his arrest, the defendant pleaded not guilty and elected a trial by jury. A trial subsequently was held, after which the jury found the defendant guilty of murder. On September 16, 2019, the court sentenced the defendant to fifty years of imprisonment, and this appeal followed. Additional facts and procedural history will be set forth as necessary.

I

We begin with the defendant's claim that he was denied his due process right to a fair trial due to prosecutorial impropriety. Specifically, the defendant contends that the prosecutor engaged in impropriety during his rebuttal closing argument when he made reference to defense counsel's failure to cross-examine Rosario. The defendant argues that the prosecutor's argument violated the "intrinsic character" of an agreement between defense counsel, William F. Dow III, and the state, whereby Dow agreed to limit his cross-examination of Rosario to a single question in exchange for the state's promise not to introduce highly damaging consciousness of guilt evidence that had recently been revealed by Rosario. The defendant further contends, in the alternative, that, if the prosecutor's argument did not rise to the level of a due process violation, this court should grant the defendant a new trial pursuant to its inherent supervisory authority over the administration of justice. The state responds that, even assuming arguendo that the prosecutor's argument violated the parties’ agreement, it did not deprive the defendant of a fair trial and that exercise of this court's supervisory authority is unwarranted under the circumstances of this case. We agree with the state.

The following additional facts are relevant to our resolution of this claim. As we previously indicated, although Rosario witnessed the victim's murder, she did not come forward until contacted by the cold case unit in December, 2015. Rosario was initially hesitant to speak with investigators but ultimately agreed to provide a written statement and testimony to the grand jury implicating the defendant in the victim's murder. On the day that she was scheduled to testify at trial, however, Dow informed the court that, in November, 2018, and again on February 4, 2019—just days before the start of the defendant's trial—Rosario had phoned his office indicating that she wanted to recant her prior statement and testimony. According to Dow, Rosario stated that investigators had pressured her into implicating the defendant in the victim's murder and that, contrary to what she previously had told them, she was not with the defendant on the night in question and did not see him shoot the victim. Dow provided the court with a copy of a recording and transcript he had prepared of Rosario's February 4th recantation, after which the court called a recess to allow the prosecution to investigate the circumstances surrounding the alleged recantation.

Later, the court noted for the record that prosecutors had met with Rosario during the recess and elicited from her a wealth of information that they believed explained her phone calls to Dow. The court further noted that the parties had reached an agreement regarding Rosario's testimony. It then asked Andrew Reed Durham, one of two prosecutors assigned to the case, to "place on the record the type of information that [he was] intending to offer in [his] examination ... of ... Rosario, that [he] allege[d] bore on her attempted recantation and that may have led to further incriminating information being elicited regarding the defendant in the...