State v. Rivera

• Decision Date: 19 November 1991
• Docket Number: No. 14098,14098
• Citation: 220 Conn. 408,599 A.2d 1060
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Norberto RIVERA.

Page 1060

599 A.2d 1060

220 Conn. 408

STATE of Connecticut v. Norberto RIVERA.

No. 14098.

Supreme Court of Connecticut.

Argued Sept. 26, 1991.

Decided Nov. 19, 1991.

Richard S. Cramer, Hartford, for appellant (defendant).

Paul J. Ferencek, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Herbert Carlson, Jr., Hartford, for appellee (state).

Before PETERS, C.J., and CALLAHAN, COVELLO, BORDEN and BERDON, JJ.

COVELLO, Associate Justice.

This is the defendant's appeal from his conviction of one count of murder in violation of General Statutes § 53a-54a(a), one count of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a(a) and 53a-49(a)(2), and one count of assault in the first degree in violation of General Statutes § 53a-59(a)(1). ¹ The issues on appeal are: (1) whether the defendant proved a witness unavailable to testify so that the witness' alleged declaration against penal interest should have been admitted into evidence as an exception to the hearsay rule; and (2) whether statements made by the defendant to sisters of the assault victim after the shootings constitute admissions of a party opponent. In both instances we affirm the judgment of the trial court.

The jury might reasonably have found the following facts. Javier Mautino, the assault victim, is the brother of the defendant's former girlfriend, Maria Ortiz. After Ortiz ended their relationship in 1984, the defendant remained angry at her and blamed her family for interfering with their romance. On February 3, 1987, in a taped telephone conversation with Ortiz, the defendant threatened to kill her brother, Mautino. In June 1988, shortly before the incident underlying the defendant's conviction, the defendant placed several calls to Ortiz' sister, Sonia Fraser, telling her that he planned to kill Mautino.

On the evening of July 1, 1988, Mautino and Fernando Fuentes, the murder victim, were at the Peruvian Club in Hartford. The defendant, who was also present, argued with Mautino and challenged him to a fight outside. Mautino declined and the defendant, calling him a coward, departed. When Mautino and Fuentes left shortly thereafter, the defendant who had remained outside the club, shot both men. Fuentes died from his wounds and Mautino although surviving the assault, died from cancer before the trial.

On July 13, 1990, a jury rendered a guilty verdict on all counts. The trial court sentenced the defendant to three terms of imprisonment: fifty years for the first count of murder; twenty years for the second count of attempted murder; and twenty years for the third count of assault in the first degree. The second and third counts were to run concurrently and both were to run consecutively with the first count for a total effective sentence of seventy years.

I

The defendant first claims that declarations by a third party, Hernan Vieira, Jr., to the defendant's nephew, Jose Rivera, should have been admitted into evidence as declarations against Vieira's penal interest. In an offer of proof made outside the presence of the jury, the defendant elicited testimony from Rivera concerning Vieira's statements. Rivera testified that in December, 1989, approximately eighteen months after the shooting, he saw Vieira in Connell's Cafe in Hartford. Vieira approached him and inquired about Rivera's uncle, the defendant. After Rivera informed him that the defendant was in jail, Vieira allegedly said, "Everything happened too fast. I had to do what I had to do to protect your uncle's life." Defense counsel, maintaining that Vieira was unavailable, sought to introduce Vieira's statements through Rivera to exculpate the defendant. The state objected on the ground that the defendant had not proven that Vieira was unavailable.

In any analysis of the admissibility of a declaration against penal interest, one must first determine whether the declarant is unavailable; if, and only if, this is shown by the proponent of the proffered hearsay statement will the court proceed to examinations of trustworthiness. State v. DeFreitas, 179 Conn. 431, 441-43, 426 A.2d 799 (1980); see also State v. Frye, 182 Conn. 476, 480-81, 438 A.2d 735 (1980). In Frye, we recognized five of the most common situations in which the declarant will be deemed unavailable for the purposes of certain hearsay exceptions. ² The only situation relevant here is when the declarant is " 'absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means.' " (Emphasis omitted; emphasis in original.) State v. Frye, supra, at 481, 438 A.2d 735. In interpreting "reasonable means," we have held that the proponent must exercise due diligence and, at a minimum, make a good faith effort to procure the declarant's attendance. State v. Aillon, 202 Conn. 385, 391, 392, 521 A.2d 555 (1987), citing State v. Weinrib, 140 Conn. 247, 252, 99 A.2d 145 (1953), and State v. DeFreitas, supra, 179 Conn. at 445, 426 A.2d 799. The trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. "Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters." Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987).

To prove that Vieira was unavailable, the defendant called Donald Gates, an investigator. Gates testified outside the presence of the jury about his continuing, but unsuccessful, attempts to locate Vieira. In January, 1990, he first learned of Vieira's possible whereabouts when Rivera informed him that he had spoken to Vieira in Connell's Cafe in Hartford. Thereafter, Gates checked for him on the streets and several times at the wrong bar, the Cardinal Cafe in Hartford. In addition, Gates asked Rivera and his family to report to him if they saw Vieira. On June 29, 1990, after the trial had begun, a courtroom spectator, Carmen Feliciano, told Gates that her son had seen Vieira recently on Zion Street in Hartford and that her son believed that Vieira lived on Park Terrace. Gates gave her his card and asked her to have her son call him over the weekend. On June 30, 1990, after waiting in vain for a phone call from Feliciano's son, Gates looked around the Zion Street/Park Terrace area for about one hour to no avail.

On July 3, 1990, Gates testified that just that morning he had contacted Vieira's father, Hernan Vieira, Sr., at 294 Park Terrace through a lead originally obtained from the Hartford Housing Authority. Gates admitted that the name "Hernan Vieira" was on the mailbox. Vieira, Sr., told Gates that his son lived in the Park Street neighborhood and that he thought that his son was attending a driving school in the Enfield area. On July 5, 1990, Gates testified that upon revisiting Vieira, Sr., on July 3, 1990, he obtained Vieira's date of birth and a description of his car. Gates then called five driving schools in Enfield, but none of them had a student named Hernan Vieira. A sixth school, the New England Tractor Trailer School in Enfield, informed Gates that he would need a subpoena to obtain any information about students and that it would take at least two days to process such a request. Gates obtained and served a subpoena on the school and looked there for Vieira and a car matching the description of his automobile. Gates further testified that by July 5, 1990, his last day of testimony, the school had not complied with his subpoena.

The trial court concluded that the defendant had failed to meet his burden of showing that Vieira was unavailable and concluded, therefore, that the hearsay statements made to Rivera should not be admitted into evidence as a declaration against penal interest. The trial court concluded that the defendant's efforts were simply a case of too little, too late. Among the reasons cited by the trial court were: (1) pertinent information, especially Vieira's date of birth, was available well before trial; had such information been obtained in a timely manner, the defendant would have had earlier access to sources useful in determining the declarant's whereabouts, e.g., the department of motor vehicle records; (2) others had seen Vieira on recent occasions; (3) Vieira presently attended a driving school in the Enfield area; (4) Vieira, Sr.'s name had always been on his mailbox and could have been discovered earlier by simply checking with the postal authorities; (5) Gates checked the wrong bar; (6) no one interviewed Vieira's alleged girlfriend, Luz Gonzalez, who was available; and (7) the police had not been asked for assistance and might have been quite willing to cooperate in this search since they wanted Vieira on an assault charge and he was, according to the testimony of two defense witnesses, a possible murder suspect.

Since the record here adequately reflects a complete examination of the circumstances surrounding Gates' investigation and since the trial court fully articulated the numerous relevant reasons that supported its ultimate conclusion that Vieira had not been proven unavailable to testify, we conclude the trial court did not abuse its broad discretion in this instance.

II

The defendant next claims that statements he made subsequent to the shootings to sisters of Mautino, the assault victim, were improperly admitted into evidence as admissions of a party opponent. After an offer of proof was made outside the presence of the jury, the trial court determined that the statements were admissions and allowed Laura Rosario and Sonia Fraser, sisters of Mautino, to testify as to the content of telephone conversations they had with the defendant after the shootings. Rosario testified that approximately two weeks after the July 2, 1988 incident, the defendant telephoned her and said, "You know me. I already killed one, and tonight, you are going to see the rest." After Rosario expressed confusion as to what he meant, ...