State v. Rodriguez

• Decision Date: 24 September 2013
• Docket Number: No. 32393.,32393.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Rafael Antonio RODRIGUEZ.

146 Conn.App. 99

75 A.3d 798

STATE of Connecticut

v.Rafael Antonio RODRIGUEZ.

No. 32393.

Appellate Court of Connecticut.

Argued April 8, 2013.

Decided Sept. 24, 2013.

Pamela S. Nagy, assigned counsel, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony J. Spinella, assistant state's attorney, for the appellee (state).

LAVINE, KELLER and BISHOP, Js.

LAVINE, J.

The defendant, Rafael Antonio Rodriguez, appeals from the judgment of conviction, rendered after a trial to the jury, of assault in the third degree in violation of General Statutes § 53a–61(a)(1) and threatening in the second degree in violation of General Statutes § 53a–62. ¹ On appeal, the defendant claims that the court (1) improperly denied his motion to open the evidence and (2) abused its discretion in concluding that Oscar Caamano was not an unavailable witness pursuant to § 8–6(4) of the Connecticut Code of Evidence. The defendant also claims that there was insufficient evidence for the jury to have found him guilty of threatening in the second degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. While Jenesis Vega (Vega) was living in Florida, she met the defendant. During their brief romantic relationship, she became pregnant, and the two of them terminated their relationship during her pregnancy. Shortly after Vega gave birth to a daughter, who was eighteen months old at the time of the incident at issue in this appeal, she became romantically involved with Caamano, whom she had met when she was in high school in Connecticut. When Vega decided to return to her parents' home in Connecticut, she and the defendant became embroiled in a legal dispute over custody of their daughter. Eventually, they agreed to joint custody of their daughter.

When Vega returned to Connecticut, she met the defendant every other Sunday at the home of her mother, Zoraida Vega, in East Hartford, to transfer physical custody of their daughter for one week. Prior to the incident at issue, Caamano accompanied Vega and her daughter, but never participated in the transfer. On September 28, 2008, the defendant arrived at Zoraida Vega's house before Vega. He telephoned Vega, who informed him that she was “right around the corner” and would arrive shortly. The defendant stated in response, “give me my fucking daughter. I just want my daughter.” When Vega arrived, the defendant was visibly upset. As Vega was getting her daughter's things from the vehicle, the defendant pushed Vega into her vehicle, injuring her arm. He repeatedly stated, “[G]et my fucking daughter out of the car.” Vega told the defendant to relax and that she would not let him take their daughter when he was upset.

The defendant opened the rear passenger door and attempted to remove his daughter from her car safety seat without first unbuckling the shoulder harness. Caamano interceded by positioning himself between the defendant and the vehicle. Vega then closed the vehicle door and locked it with a remote key.

Caamano also told the defendant to relax and that Vega would get the child out of the vehicle. Caamano testified that he wanted to calm the situation and to make sure that no one got hurt. The defendant told Vega that she needed to get her boyfriend away from him. Caamano continued to tell the defendant to relax. The defendant turned and punched Caamano. Caamano fell to the ground, bleeding from a deep cut on his chin that left a scar. The two men wrestled on the ground and punched one another. At one point, the defendant pinned Caamano against a fence in front of Zoraida Vega's house. Caamano tried to hold the defendant, who was swinging at him. He let the defendant go when the police arrived. The defendant stated to Caamano, “[I]t's not over and [I'm] going to get [you] real good.”

Vega called 911 and called for the defendant to stop. The defendant told Vega, “[S]hut the fuck up, I'm going to get you.” During the altercation, Zoraida Vega came out of her home. She observed that the defendant had Caamano pinned against the fence and was hitting him. She tried to stop the fighting. The defendant was aggressive toward her, so she took the defendant's daughter into her home.

Officer Jeffrey Otis of the East Hartford Police Department responded to 33 Comstock Place in East Hartford to investigate a domestic disturbance. When he arrived, he spoke with Vega, Caamano, and the defendant. Otis observed a cut on Caamano's lip and an injury to his chin. The defendant told Otis that he had gone to the house to pick up his daughter and exchanged words with Caamano. The defendant claimed that Caamano threw the first punch and that he defended himself. Otis did not observe any injuries on the defendant's face or body where he claimed to have been struck by Caamano. On the basis of his investigation, Otis arrested the defendant for having assaulted Caamano. In December, 2008, Vega and Caamano went to the police station to provide written statements.

The defendant was charged with two counts of assault in the third degree in violation of § 53a–61 (a)(1), two counts of threatening in the second degree in violation of § 53a–62, and one count of risk of injury to a child in violation of General Statutes § 53–21. The charges against the defendant were tried in April, 2010. The defense theory was that Vega and Caamano initiated the fight in an effort to sever the defendant's relationship with his daughter. The defendant testified that, as a result of his arrest, the family court reduced his time with his daughter from every other week to every other weekend. The jury found the defendant guilty of the assault and threatening charges pertaining to Caamano, but found him not guilty of the charges related to Vega and his daughter. The court imposed a total effective sentence of one year in prison, execution suspended after eight months, followed by two years of probation. Further facts and procedural history are set forth as necessary.

I

The defendant claims that the court abused its discretion and deprived him of his constitutional right to a fair trial and to present a defense by denying his motion to open the evidence to present newly discovered evidence. We are unable to review the defendant's claim because he failed to make an offer of proof to create an adequate record for review. The defendant therefore cannot prevail on this claim.

The following additional facts underlie the defendant's claim. The state presented its case on the first day of trial and rested. As part of its case, the state presented testimony from Caamano. On the second day of trial, the defendant called his sister, Jessica Ortiz, among others, to testify. Later in the day, defense counsel stated to the court that, although Ortiz did not know who Caamano was or what he looked like, Ortiz had overheard an individual in the lobby of the courthouse make “some admissions regarding his conduct during the [subject] incident to an acquaintance....” Defense counsel stated that the defense presumed that the individual Ortiz overheard was Caamano. The defendant requested a continuance to investigate the matter. The court denied the defendant's request for a continuance on the ground that it had already instructed the jury as to the trial schedule. The court also instructed defense counsel that “if your witnesses are here tomorrow, the court will take an offer of proof as to what your witnesses intend to say.” The defendant continued to present his case until court recessed for the day.

On the third day of trial, defense counsel stated that she intended to call Caamano and to recall Ortiz. Caamano was not present, and a lengthy colloquy ensued regarding his absence.² Outside the presence of the jury, defense counsel called defense investigator Courtney Ennis to testify about having served Caamano with a subpoena. A copy of the subpoena was marked as a court exhibit. Following additional colloquy among the court, the prosecutor, and defense counsel, the court found that Caamano was under subpoena from the defendant, and that he was not unavailable as a witness. ³

The jury returned to the courtroom, and the defendant recalled Ortiz to the witness stand. Ortiz testified that, following her testimony the previous day, she left the courtroom and was in the courthouse lobby where she overheard a conversation between two men. One of the men was the man depicted in state's exhibit 3, which is a photograph of Caamano, whom she had not previously seen. Defense counsel asked Ortiz what she heard the man she identified as Caamano state. The state objected on the ground of hearsay, and defense counsel responded that Ortiz' testimony was admissible as either a statement against penal interest on the ground that Caamano was unavailable to testify, in light of § 8–6(4) of the Connecticut Code of Evidence,⁴ or as a prior inconsistent statement. The court rejected both of defense counsel's proffered grounds for admission of Ortiz' testimony and sustained the state's objection on the ground that the court previously had found that Caamano was not an unavailable witness, as § 8–6(4) requires. The court, however, denied the state's motion to strike Ortiz' testimony. The defendant then rested his case. After hearing the state's offer of proof regarding the testimony of a rebuttal witness, the court denied the state's request to present rebuttal evidence.

Defense counsel then stated to the court that the defense investigator “apparently [has] been able to locate Mr. Caamano and has told me that he's coming back.” The court stated: “Mr. Caamano will not be allowed to testify. The court has already ruled [on] that.” ⁵ The defense failed to request that it be permitted to make an offer of proof as to the substance of Caamano's testimony and made no offer of proof.

On appeal, the defendant acknowledges that h...