State v. Rivera

Decision Date28 January 1992
Docket NumberNo. 14080,14080
Citation602 A.2d 571,221 Conn. 58
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Jose RIVERA.

Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief, were G. Douglas Nash, Public Defender, and Temmy Ann Pieszak, Asst. Public Defender, for appellant (defendant).

James A. Killen, Asst. State's Atty., with whom were John M. Bailey, State's Atty., and, on the brief, Warren Maxwell, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and GLASS, COVELLO, BORDEN and SANTANIELLO, JJ.

COVELLO, Justice.

This is the defendant's appeal from his conviction of murder in violation of General Statutes § 53a-54a. 1 The issues on appeal are whether the trial court improperly: (1) admitted the hearsay testimony of two witnesses who were unavailable to testify; (2) excluded an alleged declaration against penal interest for lack of trustworthiness; (3) admitted evidence of the defendant's prior felony conviction for possession of narcotics; and (4) failed to instruct the jury that, if it were to reject the defendant's claim of self-defense, it must be unanimous in its decision as to why it was rejecting that defense. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In the early evening of August 9, 1988, the victim, Luis Villafane, and a male companion approached the defendant, Jose Rivera, and his brothers, Heriberto Santiago (Heriberto), Luis Santiago (Luis), and Ernesto Santiago (Ernesto), who were all sitting on the steps outside of their home at 1064 Broad Street in Hartford. Villafane, who was holding a metal pipe, accused Ernesto of cheating him in a drug deal earlier that day by selling him bags of sugar instead of drugs. As tensions mounted, Luis went into the house and came back with a sawed-off rifle that he gave to the defendant. The defendant and his brothers then chased the victim and his friend across the street to an alley. When the victim attempted to strike the defendant with the metal pipe, the defendant shot and killed him. The defendant and the witnesses who had viewed the incident testified that the defendant, and no one else, had fired the rifle four or five times and had shot the victim. The autopsy report indicated that the victim had been shot only once. On October 19, 1989, the jury rendered a verdict of guilty of murder and not guilty of conspiracy to commit murder. The trial court sentenced the defendant to a term of fifty years imprisonment.

I

The defendant first claims that the admission at trial of the probable cause testimony of two state's witnesses, Maria Colon and Heriberto Santiago, violated his constitutional rights to present a defense, confront and cross-examine witnesses and to due process of law. The defendant claims that the trial court improperly determined that: (1) the state had demonstrated the witnesses' unavailability to testify at trial; and (2) their testimony was reliable. State v. Outlaw, 216 Conn. 492, 505, 582 A.2d 751 (1990).

At the probable cause hearing, Colon testified that, on the evening of the shooting, she had been sitting outside when she heard some yelling. She then saw the defendant, who was carrying a rifle, and "the boys" chase the victim, who was holding a "stick or some thing like that," across the street, at which point, the defendant shot the victim. Heriberto testified about the initial confrontation among the victim, the defendant and his brothers, and the subsequent chase. He also testified that while the defendant was holding the victim's companion at gunpoint, the victim had approached the defendant from behind and hit him in the arm with a pipe. It was only then, Heriberto testified, that the defendant shot the victim. Concluding that the two prong test for admissibility of prior testimony had been met, the court allowed a transcript of Maria Colon's and Heriberto Santiago's probable cause hearing testimony to be read to the jury.

"[T]his court and the United States Supreme Court have declared that prior testimony of an unavailable witness is admissible in a subsequent trial as an exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 67, 100 S.Ct. 2531 [2540] 65 L.Ed.2d 597 (1980); California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930 [1938] 26 L.Ed.2d 489 (1970); State v. Parker, 161 Conn. 500, 503-504, 289 A.2d 894 (1971)." (Emphasis added.) State v. Torres, 210 Conn. 631, 645-46, 556 A.2d 1013 (1989). The two part test for the admissibility of such testimony is as follows: " 'First ... [t]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.' [Ohio v. Roberts, supra, 448 U.S. at 65, 100 S.Ct. at 2538.] Even after the declarant is satisfactorily shown to be unavailable, 'his statement is admissible only if it bears adequate "indicia of reliability" '; id., [at] 66 ; which serve to 'afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.' California v. Green, [supra, 399 U.S. at 160-61, 90 S.Ct. at 1936-37]." State v. Outlaw, 216 Conn. at 505, 582 A.2d 751.

In State v. Frye, 182 Conn. 476, 480-81, 438 A.2d 735 (1980), we identified five of the most common situations in which the declarant will be deemed unavailable for the purposes of certain hearsay exceptions. 2 The situation relevant here states: 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 added.) Id., 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, [179 Conn. 431, 445, 426 A.2d 799 (1980) ]. 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)." State v. Rivera, 220 Conn. 408, 411-12, 599 A.2d 1060 (1991).

At a hearing held the week before trial commenced, the state called Steven Oborski, an inspector for the Hartford state's attorney's office, to prove that Maria Colon and Heriberto Santiago were unavailable. Oborski testified as to his continuing, but unsuccessful, efforts to locate both witnesses. Oborski knew that Colon had resided at 1064 Broad Street in Hartford because he had served her with a subpoena for her attendance at the September 30, 1988 probable cause hearing. After that hearing, Oborski gave Colon his "card and other information" and asked her to "stay in touch" if there was any change in her address or whereabouts. In July, 1989, he worked on the case and testified that, around that time, he heard an "unsubstantiated rumor" that Colon had left the area. Oborski testified that he prepared a subpoena to serve on Colon but when he went to her old address, "close to jury selection time," the building superintendent informed him that she had moved to Puerto Rico with her children sometime in 1988. Colon left no forwarding address and Oborski was not able to obtain any information through police records, motor vehicle records, license and registration records or telephone company records. Oborski discovered Colon's mother's address in Hartford but upon arriving, former neighbors also informed him that she had moved to Puerto Rico.

After attempting to trace Colon through other relatives and friends, Oborski located her brother, Samuel Colon, in Hartford. He said that their mother and Colon lived in Guayamus, Puerto Rico, in a section of the city called Pointe Dehobo. Oborski attempted to telephone the Commonwealth of Puerto Rico police department on September 20 and 21, 1989, but was unsuccessful because telephone service was inoperative due to a hurricane. On September 22, 1989, he telephoned Major Tabia, the commander of criminal affairs and extradition for Puerto Rico, who replied that, without more information, he would not be able to help locate Colon. On the same day, Oborski also contacted Commandante Benito Cruz Lopes and Officer Antonio Rodrigues Colon of the Guayamus police department by telephone and sent them a "follow-up" letter. He informed them that the state wanted Colon's testimony for an imminent trial and requested their aid in locating Colon. The Guayamus police officials told him that they would try to find her and notify her to contact the state's attorney's office. Oborski and the state's attorney prepared an interstate subpoena to be used in the event that the authorities were able to locate Colon, but as of the September 28, 1989 hearing date, the Puerto Rican police authorities had not provided any further information, nor had Colon contacted Oborski. Oborski testified that he was not sure that Colon was even in Guayamus because her brother said that he had not stayed in contact with her.

The next day, Oborski contacted personnel at the Connecticut department of income maintenance to see if they had Colon's new address but they informed him that, even if Colon were a recipient of state assistance, the agency would not be permitted to release any information to him. Nevertheless, Oborski determined that a federal statute might authorize access to financial assistance records in Puerto Rico, and he called the Puerto Rican Aid to Families with Dependent Children program (AFDC). Personnel there said that they would be willing to help locate Colon, but since "Colon" was an extremely common name they would need, at a minimum, her father's full name to narrow the search, and, ideally, a social security...

To continue reading

Request your trial
44 cases
  • State v. Schiappa
    • United States
    • Connecticut Supreme Court
    • 23 Marzo 1999
    ...237 Conn. 694, 738, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); accord State v. Rivera, 221 Conn. 58, 62, 602 A.2d 571 (1992). In determining whether the declarant is unavailable, we employ the definitions set forth in rule 804 (a) of the Federal Rule......
  • Label Systems Corporation v. Aghamohammadi
    • United States
    • Connecticut Supreme Court
    • 27 Julio 2004
    ...abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) State v. Rivera, 221 Conn. 58, 72-73, 602 A.2d 571 (1992). In State v. Nardini, supra, 187 Conn. 520, the defendant claimed that the trial court improperly had allowed the stat......
  • Skakel v. State Of Conn.
    • United States
    • Connecticut Supreme Court
    • 20 Abril 2010
    ...supra, 319 ("[t]hird party statements that exculpate an accused are suspect because of the danger of fabrication"); State v. Rivera, 221 Conn. 58, 71, 602 A.2d 571 (1992) (requirement of corroboration is for "purpose of circumventing fabrication"); State v. DeFreitas, 179 Conn. 431, 452 n.9......
  • State v. Small
    • United States
    • Connecticut Supreme Court
    • 29 Julio 1997
    ...render the disclosure of his prior conviction inadmissible." (Citation omitted; internal quotation marks omitted.) State v. Rivera, 221 Conn. 58, 72-74, 602 A.2d 571 (1992). As to the second criterion, although a felony conviction for possession of narcotics does not reflect directly on the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT