State v. Rodriguez

• Decision Date: 18 December 2012
• Docket Number: No. 32512.,32512.
• Citation: 139 Conn.App. 594,56 A.3d 980
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Carlos Michael RODRIGUEZ.

139 Conn.App. 594

56 A.3d 980

STATE of Connecticut

v.Carlos Michael RODRIGUEZ.

No. 32512.

Appellate Court of Connecticut.

Argued Sept. 10, 2012.

Decided Dec. 18, 2012.

William B. Westcott for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Maureen Ornousky, senior assistant state's attorney, for the appellee (state).

GRUENDEL, LAVINE and FLYNN, Js.

GRUENDEL, J.

The defendant, Carlos Michael Rodriguez, appeals from the judgment of conviction, rendered after a jury trial, of two counts of attempt to commit assault in the second degree in violation of General Statutes §§ 53a–49 (a)(1) and 53a–60 (a)(1), one count of interfering with a police officer in violation of General Statutes § 53a–167a and one count of carrying a dangerous weapon in violation of General Statutes § 53–206. The defendant claims that (1) the court erred in admitting into evidence a prior statement to police of a state's witness, (2) the court lacked jurisdiction to modify his sentence and (3) there was insufficient evidence to sustain his conviction of two counts of attempt to commit assault, as charged by the state. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of January 15, 2008, after returning from his day in high school, the defendant, along with Charles Lauture and Kendell Woodley, went to the home of Kevin Whittingham, where Whittingham resided with his mother, Christina Esposito. Shortly after his arrival, the defendant asked Esposito to repay him $20 that she allegedly owed him for drugs he had provided to her on an earlier occasion. Esposito disputed owing the defendant money and refused to pay him, claiming that the drugs he had given her were counterfeit. The two argued over the debt, both yelling and cursing. Whittingham attempted to defuse the argument by telling both the defendant and Esposito to calm down. When Esposito continued her refusal to pay, the defendant drew a knife with a five inch blade from the waist of his pants and demanded the money again. Esposito then fled her apartment via an outside porch that connects to an adjoining apartment. Whittingham told the defendant to put down the knife, but the defendant did not. Instead, the defendant ran from the apartment, chasing Esposito. As he passed Lauture, who was on the porch, Lauture attempted to stop the defendant from continuing his pursuit of Esposito. Lauture moved to restrain the defendant and after a struggle, the defendant slashed Lauture's torso with the knife. The knife cut through Lauture's two layers of clothing, causing an abrasion on his chest. The defendant then resumed chasing Esposito.

While the defendant and Lauture scuffled, Esposito sought refuge in the bedroom of a neighboring apartment occupied by Steven Arzu and his family. She ran through Arzu's apartment, knocking over furniture to create obstacles between her and the defendant. Esposito used Arzu's phone to call 911 for assistance, reporting that a young man was trying to attack her with a knife. ¹ The defendant followed Esposito to Arzu's bedroom, pounding and kicking the door, yelling, “I want my money.” As Esposito held the door closed, the defendant began to stab the door with the knife. Esposito had to continually move her hand to avoid being stabbed by the knife as it pierced the door. The defendant then broke the door in half and entered the bedroom. Esposito backed away from the defendant, toward the bedroom wall, throwing a television on to the floor to block the defendant's path. As she retreated from the defendant, Esposito fell to the ground and shielded herself from him with a piece of the broken bedroom door.

Meanwhile, several Stamford police officers responded to Esposito's and Arzu's 911 calls. Officers Tom Comerford, Steven Perrotta and David Sileo arrived on the scene seconds after Lieutenant Nick Montagnese and Officer Wayne James. Hearing Esposito's screams, Montagnese immediately ran into the building and up the stairs to Arzu's apartment, with James following close behind him. As Montagnese entered the apartment, he saw the defendant, holding a knife and screaming, standing at the threshold of the bedroom to which Esposito had fled. Montagnese repeatedly ordered the defendant to drop the knife, but the defendant did not respond. Instead, the defendant continued to focus his attention on Esposito. Montagnese then shoved the defendant in order to get his attention. In response, the defendant turned away from Esposito and began to approach Montagnese with the knife raised above his head. Montagnese backed away from the defendant in order to keep a safe distance between him and the knife, while instructing the defendant to drop the weapon. As he was walking backward away from the defendant, Montagnese tripped and fell, landing on his back. When James, who was standing in a nearby doorway, observed Montagnese begin to fall, making him vulnerable to being stabbed by the defendant, he shot the defendant twice. Montagnese then radioed for paramedic assistance for the defendant. The defendant was taken to the hospital where he received treatment for his gunshot wounds.

On December 1, 2009, the defendant was charged with two counts of attempt to commit assault in the first degree, one count of assault in the second degree, one count of assault on a police officer and one count of carrying a dangerous weapon.² After a jury trial, the defendant was convicted of two counts of attempt to commit assault in the second degree,³ interfering with a police officer and carrying a dangerous weapon. He was acquitted of the charge of assault in the second degree. The court rendered judgment in accordance with the jury's verdict and imposed a total effective sentence of fourteen years, execution suspended after nine years, followed by three years of probation.⁴ This appeal followed.

I

We address first the defendant's claim that the court improperly admitted Whittingham's statement to police as part of the state's case-in-chief. The defendant asserts that this ruling by the court was both a misapplication of evidentiary law and a violation of his sixth amendment right to confrontation under the federal constitution.⁵ We disagree on both accounts.

The following additional facts are relevant to this claim. Less than two hours after the incident, Whittingham went to the Stamford police department and gave a signed and sworn statement to Officer Angel Gonzalez. The statement included Whittingham's basic biographical information and recounted the events of the afternoon, including the defendant's demand for money from Esposito, his drawing a knife from his pants and threatening Esposito with it, his altercation with Lauture on the porch and his interaction with Montagnese leading up to James shooting him. Gonzalez typed the statement, after which Whittingham initialed each paragraph to indicate its accuracy.

During the time between the defendant's arrest and when his case went to trial, Whittingham was convicted of a felony. At the time of trial, when the state wished to call him as a witness, Whittingham was incarcerated and did not wish to testify.⁶ The state alerted the court and defense counsel, the day before calling Whittingham, that Whittingham would decline to testify.⁷ When the state ultimately called Whittingham during its case-in-chief, Whittingham took an oath to testify truthfully and went on to state that he did not remember the events from the afternoon of January 15, 2008, nor did he remember making a signed sworn statement to police. Moreover, Whittingham stated repeatedly, to both the state and defense counsel, that since he could not remember any of the events in question from January 15, 2008, then he believed that they did not, in fact, occur. He testified that this lack of memory rendered his statement to police untrue.⁸ After the state unsuccessfully attempted to refresh Whittingham's memory by allowing him to read his statement to police, the court also questioned Whittingham to determine whether he was simply stating that he was unable to remember the events contained in his statement to police or if he was affirmatively stating that they did not happen.⁹ Defense counsel conducted a cross-examination and four subsequent recross-examinations of Whittingham. In addition to restating that he had no memory of the relevant incident, in response to defense counsel's questioning, Whittingham testified that he knew the defendant from school, that the defendant had not threatened him, and that he believed that when he spoke to police immediately following the incident that they had him sign a statement prepared without his involvement. Whittingham also testified specifically that he never saw any conflict occur between the defendant and police, between the defendant and Esposito or between the defendant and Lauture.

The state then called Gonzalez to testify, outside the presence of the jury, about the circumstances surrounding the taking of Whittingham's statement. Gonzalez testified that he typed the statement as Whittingham relayed his recollection of the afternoon. Gonzalez stated that after he typed the statement, he had Whittingham read the statement aloud and asked him to correct any mistakes. As Whittingham read each paragraph, Gonzalez asked him to indicate that it contained no errors by initialing it. Whittingham initialed each paragraph and made no corrections to the statement. Gonzalez also testified regarding the form which accompanies the body of written statements given by both witnesses and suspects. Specifically, he pointed to the oath printed on the form that affirms the truthfulness of the statement annexed to it. Whittingham signed the form containing the oath and Sergeant James Van Allen, a notary public, notarized it.

After Gonzalez testified, the state moved to have...