State v. Reis

• Citation: 640 A.2d 118,229 Conn. 901
• Court: Connecticut Supreme Court
• Decision Date: 23 March 1994
• Parties: STATE of Connecticut v. Fernando REIS.

Page 118

640 A.2d 118

229 Conn. 901

STATE of Connecticut v. Fernando REIS.

Supreme Court of Connecticut.

Decided March 23, 1994.

John R. Gulash, Jr., Bridgeport, in support of the petition.

C. Robert Satti, Jr., Asst. State's Atty., in opposition.

The defendant's petition for certification for appeal from the Appellate Court, 33 Conn.App. 521, 636 A.2d 872 (AC 11572), is denied.

BERDON, Associate Justice, dissenting.

This is a case where prosecutorial strategy, coupled with an unreasonable application of the hearsay rule by the trial court, effectively stripped away the defendant's defense. A crucial witness, Antonio Gomes, refused to testify for the defense, asserting his fifth amendment privilege against self-incrimination. The state's attorney refused to grant immunity to Gomes pursuant to General Statutes § 54-47a. I have no quarrel with the Appellate Court's decision that the defendant was not entitled to a court order of immunity so that Gomes could testify.

I do, however, find troubling the Appellate Court's decision that Gomes' out-of-court statements given to the defendant's investigator were not admissible as a declaration against penal interest. On two occasions, three months and nine months after the incident underlying the defendant's conviction, the defendant's investigator met with Gomes and obtained the statement that Gomes gave a gun to Steven Carloto, the alleged victim, several days before the incident. This statement would have corroborated the defendant's defense that he did not have possession of the weapon and therefore was not guilty of violating General Statutes § 53a-217.

"[T]rustworthy third party statements against penal interest which are exculpatory to the defendant are admissible if the declarant is unavailable." (Internal quotation marks omitted.) State v. Boyd, 214 Conn. 132, 138, 570 A.2d 1125 (1990). This is not merely an evidential rule, but rather, it implicates the right to a fair trial under the due process clause of the fourteenth amendment. State v. DeFreitas, 179 Conn. 431, 449, 426 A.2d 799 (1980), citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).

"Four considerations have been deemed relevant when examining the trustworthiness of declarations against penal interest: (1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant's penal interest; [and] (4) the availability of the declarant as a witness." (Internal quotation marks omitted.) State v. Rosado, 218 Conn. 239, 244-45, 588 A.2d 1066 (1991). "In determining whether the threshold level of trustworthiness [is] satisfied ... the trial court does not have to find it to be absolutely trustworthy because if this were so, the province of the jury as the finder of fact and weigher of credibility would be entirely invaded...." (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 204 Conn. 377, 390, 528 A.2d 794 (1987).

The state concedes that Gomes' statements were against his penal interest and that Gomes was unavailable because of his invocation of the privilege. The Appellate Court held, however, that the statements failed to meet the first and second factors because there was a lapse of time between the occurrence and the statements; the statements were not made spontaneously, but in response to questioning; the statements were not made to a person "with whom he shared a close, confidential relationship"; and there was a lack of corroborative evidence. State v. Reis, 33 Conn.App. 521, 530, 636 A.2d 872 (1994).

The defendant points out, however, that the Appellate Court failed to consider several significant indicia of trustworthiness. First of all, three months and nine months are not particularly significant lapses of time, in view of the content of the statements. They do not relate to eyewitness testimony such as a description of a person, or the content of a conversation; memories of these types of experiences might quickly fade, distort and become unreliable. Instead, the statements address a simple transaction, the giving of a gun to Carloto several days before he was shot with the gun. Furthermore, absent some suggestion that the statements were staged or coerced, I disagree with the Appellate Court's assertion that the statements are unreliable because they were not made spontaneously, but instead made in response to questioning by the investigator.

Second, the defendant states that the investigator was a retired Bridgeport police captain of twenty-five years experience who was neither a friend nor relative of the defendant. This neutrality weighs in favor of, not against, the reliability of the statement. Cf. State v. Sanchez, 200 Conn. 721, 726, 513 A.2d 653 (1986) (witness' intimate relationship with defendant was a factor "coloring" trustworthiness). In addition, a former police captain who would subject himself to testifying under oath would likely be aware of the great importance to the criminal justice process of having an accurate recording of the evidence he gathered.

Third, Gomes gave his statement on two different occasions to the investigator, despite the fact that the statement was against his penal interest. The state has identified no motive that Gomes might have had to...