State v. Rivers

• Citation: 283 Conn. 713,931 A.2d 185
• Decision Date: 04 September 2007
• Docket Number: No. 17665.,17665.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Jonathan RIVERS.

931 A.2d 185

283 Conn. 713

STATE of Connecticut v. Jonathan RIVERS.

No. 17665.

Supreme Court of Connecticut.

Argued February 14, 2007.

Decided September 4, 2007.

Gary A. Mastronardi, Bridgeport, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

PALMER, J.

The defendant, Jonathan Rivers, appeals¹ from the judgment of conviction rendered by the trial court following his conditional plea of nolo contendere, under General Statutes § 54-94a,² to one count of felony murder in violation of General Statutes § 53a-54c. On appeal, the defendant claims that the trial court incorrectly concluded that the defendant had breached the terms of his plea agreement and, therefore, improperly denied his motion to dismiss certain charges against him,³ including the felony murder count, in accordance with that agreement. The defendant claims that he performed in accordance with the terms of the agreement and that, consequently, he is entitled to specific performance. We conclude that the defendant did not breach the agreement. Accordingly, we reverse the trial court's judgment and remand the case with direction to grant the defendant's motion to dismiss and to order specific performance of the plea agreement.

The essential facts relevant to our disposition of this appeal are undisputed. On July 21, 2000, the defendant, under the direction of Miguel Estrella, a drug dealer for whom the defendant worked at the time, drove with Robert Marrow to Meriden to meet Juan Disla with the intention of robbing Disla of money and drugs that Disla was expecting to sell to Estrella. Disla met the defendant and Marrow in a parking lot, where Marrow brandished a gun and ordered Disla into the rear of the van that Disla had been driving. While Marrow held Disla at gunpoint, the defendant drove Disla's van around Meriden waiting for instructions from Estrella. During this time, Marrow shot Disla in the leg to incapacitate him and to prevent him from escaping. The wound was not life threatening.

The defendant then drove the van to meet Estrella and Lawrence Smith, another accomplice. When Estrella realized that Disla had recognized that he was responsible for the abduction, he and Smith decided that Disla had to be killed. Estrella then drove the van, with the defendant, Marrow, Smith and Disla inside, to a remote wooded area.⁴ There, Marrow strangled Disla and left his body under a tree. Two days later, Estrella and Smith returned and dismembered the body with a chain-saw. They then dissolved the body parts in acid.⁵

Between December, 2000, and February, 2001, all four men were arrested in connection with Disla's murder. The defendant was arrested on February 1, 2001, and initially was charged with assault in the first degree, kidnapping in the first degree, and conspiracy to commit murder. The defendant thereafter agreed to cooperate with the police, and, on February 13, 2001, the defendant and the state entered into a plea and cooperation agreement.⁶ Under that agreement, the defendant agreed to plead guilty to kidnapping in the first degree and to cooperate with the state, and the state agreed to make certain sentencing recommendations to the court. That same day, in the presence of counsel, the defendant provided a tape-recorded statement to the Meriden police regarding the events surrounding Disla's murder.

On August 2, 2001, the defendant testified at Estrella's probable cause hearing, providing truthful testimony consistent with his prior statement to the police, and the court found probable cause to proceed with Estrella's trial for the murder of Disla. Following his testimony at the hearing, the defendant's bond was reduced from $1 million to $75,000. The defendant posted bond and was released. While free on bond, the defendant was arrested and charged in New Haven with several additional criminal offenses unrelated to the case involving the murder of Disla.

Evidence in the trial of Estrella began on September 22, 2003. On that day, the state called the defendant as a witness, but, on the advice of counsel, he invoked his fifth amendment privilege against self-incrimination and declined to testify. Thereafter, the trial court found that the defendant was unavailable to testify and allowed the state to introduce his testimony from the probable cause hearing. Estrella subsequently was convicted as charged.⁷

On October 2, 2003, immediately following Estrella's trial, the state declared its plea agreement with the defendant to be null and void and filed a new information charging the defendant with felony murder, kidnapping in the first degree, robbery in the first degree and conspiracy to commit robbery in the first degree. The state claimed that the defendant had violated, and thereby had vitiated, the agreement when he refused to testify at Estrella's trial and, therefore, no longer was entitled to the benefits of the arrangement.

The defendant filed a motion in limine, seeking to preclude the state from using any of his previous statements against him in its case-in-chief, including all written and recorded statements that he had provided to the police and his testimony at Estrella's probable cause hearing. In support of the motion, the defendant claimed that, according to the terms of the plea agreement, the state could not use any of the statements or information that he had provided, other than for impeachment purposes, unless he had breached the agreement. The defendant further claimed that the invocation of his privilege against self-incrimination did not constitute a breach of the agreement. In opposing the motion, the state claimed that the defendant's refusal to testify, although a proper exercise of his constitutional rights, nevertheless constituted "a bad faith breach of the obligations [that] he [had] entered into in the [plea] agreement," and that, under the terms of paragraph two of the agreement; see footnote 6 of this opinion; the defendant's breach allowed the state to use his prior statements against him in its case-in-chief.

The trial court conducted a hearing on the motion.⁸ Defense counsel claimed, inter alia, that the defendant was not required to testify under the terms of the plea agreement and, therefore, that the defendant's invocation of his fifth amendment right against self-incrimination did not constitute a breach of the agreement.⁹ Defense counsel further maintained that the state had obtained the benefit of its bargain by virtue of its use of the defendant's probable cause hearing testimony at Estrella's trial. Finally, defense counsel claimed that, even though he believed that the defendant was entitled to specific performance of the plea agreement, if the state insisted on proceeding against the defendant, it should not be permitted to use the defendant's statements against him in its case-in-chief. The state claimed that the defendant had waived his fifth amendment rights in executing the agreement and that, regardless of whether his invocation had been in good or bad faith, it constituted a breach of the terms contained in paragraph four of the agreement, which, according to the state, required the defendant to "testify truthfully or in conformance with his statement. . . ." Therefore, the state contended, because the defendant had abrogated, and thereby nullified, the agreement, the state was not obligated to uphold its end of the bargain and was entitled to use the defendant's prior statements as evidence against him.

In a memorandum of decision, the trial court denied the defendant's motion in limine concluding that the defendant had breached paragraph four of the agreement; see footnote 6 of this opinion; because "the defendant acted in bad faith in invoking his fifth amendment privilege and thereby breached the [plea] agreement rendering [it] null and void." Specifically, the trial court observed that, although "there was no explicit provision in the [plea] agreement requiring [the defendant] to testify . . . the defendant breached the agreement by failing to fulfill his obligation under the agreement in good faith." In reaching this conclusion, the court determined that the defendant's invocation of his privilege against self-incrimination amounted to "an attempt to violate the spirit of the proffer agreement and yet still reap its benefits." The trial court ultimately concluded that "the state bargained for [the defendant's] testimony against . . . Estrella in exchange for [the defendant's] reduced sentence and charges. Since the state has not received the benefit of its bargain then [the defendant] should not be allowed to unjustly enrich himself with the reduced charges and reduced sentence." Thereafter, the trial court granted the defendant's motion for reargument but denied his motion for reconsideration.

The defendant subsequently filed a motion to dismiss all of the charges against him except for the charge of kidnapping in the first degree. In the motion to dismiss, the defendant requested an order of specific performance of the plea agreement. The defendant claimed that he was entitled to specific performance because he had cooperated with the state in accordance with the terms of the plea agreement and that the state had received the benefits of his cooperation.¹⁰

The trial court denied the motion to dismiss, relying on the same grounds that it had cited in denying the defendant's motion in limine. The court expressly incorporated by reference its previous memorandum of decision, reiterating that, in light of the bargain struck in the agreement, the defendant had acted in bad faith in refusing to testify: "There was an agreement to deliver. [The defendant], by invoking the fifth amendment, did not deliver what was bargained for. And,...