State v. Rivera, 31733.

• Citation: 22 A.3d 636,129 Conn.App. 619
• Decision Date: 28 June 2011
• Docket Number: No. 31733.,31733.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticutv.Raymond RIVERA.

129 Conn.App. 619

22 A.3d 636

STATE of Connecticut

v.Raymond RIVERA.

No. 31733.

Appellate Court of Connecticut.

Argued Jan. 20, 2011.Decided June 28, 2011.

John C. Drapp III, special public defender, with whom, on the brief, was Joseph A. Jaumann, special public defender, for the appellant (defendant).Sarah Hanna, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and David Shannon, assistant state's attorney, for the appellee (state).DiPENTIMA C.J., and BEACH and BEAR, Js.DiPENTIMA, C.J.

The defendant, Raymond Rivera, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the third degree as an accessory in violation of General Statutes §§ 53a–8 and 53a–61(a)(1) and one count of attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–59 (a)(4). This appeal arises out of the state's use of consensually admitted evidence containing a hearsay statement that the defendant successfully had excluded when it was offered into evidence through testimony. Specifically, the defendant claims that (1) his rights of confrontation as guaranteed by the sixth amendment of the United States constitution and article first, § 8, of the Connecticut constitution were violated when hearsay evidence of a statement given by the victim to police was admitted at trial and (2) the prosecutor committed impropriety that deprived him of a fair trial when he knowingly referenced the victim's hearsay statement in closing argument. We disagree, and, accordingly, affirm the judgment of the trial court.

The relevant underlying facts are not in dispute. At approximately 10 p.m. on April 1, 2008, the victim, Jeremy Jweinat, was filling his car with gasoline at the Food Bag gasoline station and convenience store at 63 Main Street, Danbury, when he was assaulted by a group of individuals. The individuals who attacked the victim arrived at the scene in a white Chevrolet Blazer sport utility vehicle (Blazer) driven by Alexander Jones. Anne Brandon, who was passing by the Food Bag at this time, saw the assault begin and telephoned 911 before turning her car around and stopping it right in front of the assault. Brandon tried to stop the assault by honking her car horn and flashing her car's headlights. Abruptly, the attackers fled the scene on foot and Brandon attempted to follow them in her car. After the attackers fled, Jones drove the Blazer away. Shortly thereafter, officer Gregory Topa of the Danbury police department arrived on the scene and spoke with the victim.

After Topa was at the scene for approximately ten minutes, police dispatch notified him that the suspects were driving a white sport utility vehicle and were then located at a Walgreens pharmacy two blocks north of the Food Bag. Topa and several other officers responded and, after encountering a white sport utility vehicle in the middle of the Walgreens parking lot, the officers executed a felony stop ¹ and detained the vehicle's five occupants: Jones, Luis Rivera, Watts Briley, John Damasceno and the defendant. The defendant, Luis Rivera, Briley and Damasceno subsequently were arrested in connection with this assault. This felony stop was recorded on the ICOP camera system in Topa's police cruiser.²

By long form information, the state charged the defendant with three counts of assault in the first degree, one count of attempt to commit assault in the first degree and two counts of conspiracy to commit assault in the first degree. Prior to trial, the state informed the defendant that the victim was unavailable to testify.³ Consequently, the defendant filed a motion in limine seeking to preclude, inter alia, any testimony by Brandon or Topa concerning the victim's identification of the defendant as one of his attackers. On August 11, 2009, the first day of trial, the court deferred ruling on this portion of the defendant's motion in limine until hearing the state's offer of proof. The court, however, required the state to instruct its witnesses not to testify to the victim's statement identifying the defendant as his attacker until the court first ruled on its admissibility.

During its case-in-chief, the state called Topa as a witness. On direct examination, the state offered into evidence a copy of the ICOP recording taken from Topa's police cruiser on the night of April 1, 2008. The court asked the defendant if he had any objection to this evidence, to which counsel for the defendant replied: “No objection, Your Honor.” ⁴ The recording was then admitted into evidence as a full exhibit. While the ICOP recording was played to the jury, Topa provided an explanation.

At a certain point the state stopped the ICOP recording and asked Topa if he had spoken with the victim while he was at the Food Bag on April 1, 2008, and what, if anything the victim had said to him. Counsel for the defendant promptly objected, and the court excused the jury so that it could hear argument from counsel on the matter. Outside the jury's presence, the state made the following offer of proof:

“[The Prosecutor]: You can answer the question now, what ... specifically, did you ask the victim, Jeremy?

“[Topa]: I asked him what happened to [him on] the night of the incident and who assaulted him.

“[The Prosecutor]: And what did he say?

“[Topa]: He said [the defendant].

“[The Prosecutor]: Okay. Did he name any other individuals?

“[Topa]: No.

“[The Prosecutor]: That was the only name he gave you?

“[Topa]: Yes.”

The court determined that although the victim's statement to Topa was admissible under the spontaneous utterance exception to the hearsay rule, the statement was testimonial in nature. Accordingly, the court concluded that because the defendant was not given an opportunity to cross-examine the victim, Topa's testimony as to what the victim recounted to him on the night of the assault was inadmissible as a violation of the defendant's sixth amendment right of confrontation pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Consequently, the state did not elicit the victim's statement from Topa, nor did the state elicit it from any other witness.⁵

During closing argument at the end of trial, counsel for the defendant twice played a portion of the ICOP recording to the jury and, thereafter, argued that the defendant was at the scene but that he was attempting to stop the fight and did not participate in the assault.⁶ In its rebuttal closing argument, the state played a different portion of the ICOP recording to the jury. Prior to playing the ICOP recording, the prosecutor stated to the jury: “Okay. Before we start this, you saw this ICOP [recording].... I just want you to listen to this, and before we play it, [Topa] testified that his Sergeant Sturdevant showed up at the scene and asked him what happened, right.... So, [Topa] says ... you hear [Topa] respond, and you may not have caught this the first time, but could we play it? Can you turn the volume up?”

The prosecutor then played the ICOP recording, stopped it and then stated to the jury the following: “Did you hear that? [Topa] says, ‘when I asked the victim who did it, he said [the defendant], he didn't name any other names but that.’ That's it.... Why is the victim in this case, bleeding from his face, his head, his hand, why is he telling the officer the guy who did it was [the defendant], if that wasn't the case? Can anybody come up with a reason? I mean, was he sitting there, after just getting beaten down, pummeled, is he going to say, you know, I don't really know who did this, but I never liked [the defendant], so let me say it was him? No, that's it, you heard it from the victim's mouth—or I'm sorry, you heard it from [Topa], who heard it from the victim. I think he even says that he threw the bottle.” ⁷ Counsel for the defendant asked to have the jury excused and then objected to the prosecutor's closing remarks. The following colloquy between the court and defense counsel then ensued:

“[Defense Counsel]: Based on what we are hearing here, Your Honor, I hadn't heard it before either—

“The Court: It's in evidence.

“[Defense Counsel]: As we indicated before, this tape had been provided to me beforehand, but I could never hear anything, I didn't think that there was any voice when we had it in here.

“The Court: There was—there was voice on it before, Ms. Comstock almost broke the speakers, when she put them on earlier.

“[Defense Counsel]: Yes, Your Honor, but your—

“The Court: I mean, it's in evidence. There was—there was sound with it. I think—I think, what I remember most about the sound was the windshield wipers keep going, that's what I remember most—

“[Defense Counsel]: No, I understand.

“The Court:—but there was sound with it.

“[Defense Counsel]: Is it—Well, Your Honor had made a ruling about the hearsay statements being made and this is a hearsay statement being made by—

“The Court: Listen, the tape's in evidence. There was no—it came in, there were no exclusions to it. It came in, you agreed that it was going to come in, it's a piece of evidence, the—the tape was played earlier, it was played during the trial. So, is there an objection pending?

“[Defense Counsel]: Yeah, I had an objection to it based on the fact that you had made an earlier ruling about the—

“The Court: Well, too late now, it's already in evidence.

“[Defense Counsel]: All right. Just note my objection.”

Counsel for the defendant did not seek to strike the ICOP recording from evidence or have the contested portion redacted, nor did counsel seek a mistrial. The jury returned and, subsequently, returned a verdict of not guilty on the two counts of assault in the first degree, but guilty as to two counts of the lesser included offenses of assault in the third degree and guilty as to the count of attempt to commit assault in the first degree. The court rendered judgment in...