State v. Rosado, 13692

• Decision Date: 02 April 1991
• Docket Number: No. 13692,13692
• Citation: 588 A.2d 1066,218 Conn. 239
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Angel L. ROSADO.

Page 1066

588 A.2d 1066

218 Conn. 239

STATE of Connecticut v. Angel L. ROSADO.

No. 13692.

Supreme Court of Connecticut.

Argued Jan. 17, 1991.

Decided April 2, 1991.

John S. Pinney, Bloomfield, with whom was Anthony Modugno, Norwalk, for appellant (defendant).

James M. Ralls, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Paul Murray, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The defendant was charged in a substitute information with possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a). ¹ He was also charged under Part B of the substitute information as a subsequent offender, having previously been convicted of violating the same statute. A jury found the defendant guilty as charged in the substitute information and he then pleaded guilty to being a subsequent offender. The trial court sentenced the defendant to a term of imprisonment of thirty years, the execution of which was suspended after twenty years. He was also placed on probation for five years.

The charges of which the defendant was convicted arose out of a raid conducted, pursuant to a search and seizure warrant, by the Hartford police on November 5, 1987, on an apartment leased by Lydia Milton, the defendant's sister, located at 172 Lawrence Street in Hartford. In conducting the raid the officers involved in the execution of the search warrant entered Milton's apartment and ran down a hallway to the living room. Upon entering the living room, they observed three individuals sitting on a couch, one of whom they identified as the defendant. ² The officers then observed the defendant get up from the couch, go toward a window, and drop a brown paper bag at his feet. They retrieved the bag and found that it contained approximately $1600 in cash, thirty-seven blue glassine packets and twenty-four white glassine packets. The contents of the packets were later tested and determined to be cocaine, morphine and heroin with a street value of approximately $2000. Other facts will be recounted as they become necessary to the court's opinion.

I

The defendant first claims that the trial court should have admitted into evidence at his trial, as an exception to the hearsay rule, a statement made by Milton, exculpatory of him and against her penal interest. We disagree.

The factual circumstances surrounding the giving of Milton's statement were revealed in a hearing conducted outside the presence of the jury to determine its admissibility. The hearing was precipitated by the state's motion in limine requesting the trial court to exclude from evidence certain statements, exculpatory of the defendant, taken from Milton and two others who were occupants of the apartment at the time of the police raid, namely, Freddy Santana and Emilio Cuellar, both of whom were also arrested. There was testimony at the hearing from William Gerace, an attorney who, at the time, represented the defendant on the narcotics charge that is the subject of this appeal, from Sharon Mason, Gerace's secretary, and from Luz Rosado, the defendant's wife.

Gerace testified that late one afternoon as he was leaving his office four or five Hispanic individuals arrived without an appointment. Because Gerace was on his way out, he directed the group to speak to a secretary. Upon his return to the office he found typed, signed statements taken by his secretary, Mason, in affidavit form, from Milton, Santana and Cuellar. Gerace stated that thereafter he had no contact with any of the affiants. ³

Mason testified that she took statements from Milton, Santana and Cuellar with the help of Ilsie Negron, a Spanish speaking secretary. Mason's recollection, however, differed from that of Gerace. She testified that she believed that Milton came into the office with only Luz Rosado and that she took statements from Santana and Cuellar on another day. Mason, who was a notary public, testified that after taking the statements, she administered an oath, explained the implications of the oath and made the affiants aware of the penalty for perjury. ⁴

Luz Rosado testified that Santana had telephoned her and asked if she would give Milton a ride to "the lawyer's office." As a result, she picked up Milton and drove her to see Gerace. ⁵ She stated that she did not know the purpose of Milton's visit and that it was not discussed. Luz Rosado also testified that she had made no promises to Milton, and that she said nothing to Milton during the time Milton's statement was being taken.

Milton's affidavit states that the defendant was at her apartment only to pick up Santana and that while he was waiting for Santana the police broke in and arrested him. She went on to say, "That I know that he has nothing to do with it, and nothing was his. That the drugs seized were mine. At the time, I was selling same to support my bad habit." ⁶ At the close of the hearing, after argument, the trial court ruled that Milton's statement was not trustworthy and excluded it from evidence at the defendant's trial.

A trustworthy third party statement exculpatory of the accused and against the penal interest of the

declarant is admissible at the trial of the accused if the declarant is unavailable. State v. Boyd, 214 Conn. 132, 138, 570 A.2d 1125 (1990); State v. Mayette, 204 Conn. 571, 576, 529 A.2d 673 (1987); State v. Hernandez, 204 Conn. 377, 389-90, 528 A.2d 794 (1987); State v. Bryant, 202 Conn. 676, 692, 523 A.2d 451 (1987); State v. Gold, 180 Conn. 619, 630, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980); State v. DeFreitas, 179 Conn. 431, 450-51, 426 A.2d 799 (1980); see also Fed.R.Evid. 804(b)(3). The determination of whether such a statement is sufficiently trustworthy to be admitted into evidence at trial lies within the sound discretion of the trial court. United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir.1978); State v. Mayette, supra, 204 Conn. at 577, 529 A.2d 673; State v. Hernandez, supra, 204 Conn. at 390, 528 A.2d 794; State v. Bryant, supra, 202 Conn. at 694, 523 A.2d 451; State v. DeFreitas, supra, 179 Conn. at 452, 426 A.2d 799.

Our present rule allowing the admission of trustworthy third party statements against penal interest has its genesis in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Prior to Chambers, such third party statements were per se inadmissible as hearsay. State v. Stallings, 154 Conn. 272, 287, 224 A.2d 718 (1966); State v. Mosca, 90 Conn. 381, 387, 97 A. 340 (1916); State v. Beaudet, 53 Conn. 536, 551, 4 A. 237 (1886). In State v. DeFreitas, supra, 179 Conn. at 449, 426 A.2d 799, we interpreted Chambers as forbidding the mechanistic application of the hearsay rule to exclude all third party statements against penal interest exculpatory of an accused. We concluded, however, that Chambers did not mandate the admission of every such statement but required the admission only of those statements that, after a careful examination, were determined in the sound discretion of the trial court to be trustworthy. State v. DeFreitas, supra, 451-52, 426 A.2d 799.

Four considerations have been deemed relevant when examining the trustworthiness of declarations against penal interest: " '(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant's penal interest; [and] (4) the availability of the declarant as a witness.' United States v. Guillette, 547 F.2d 743, 754 (2d Cir. [1976], cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 [1977]. See United States v. Oropeza, 564 F.2d 316, 325 (9th Cir. [1977] [cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978) ]; Henson v. United States, 399 A.2d 16 [, 19] (D.C.App.) [cert. denied, 444 U.S. 848, 100 S.Ct. 96, 62 L.Ed.2d 62 (1979) ]; People v. Foster, 66 Ill.App.3d 292, 294-95 [23 Ill.Dec. 21] 383 N.E.2d 788 [1978]." State v. DeFreitas, supra, 179 Conn. at 451, 426 A.2d 799; State v. Bryant, supra, 202 Conn. at 693, 523 A.2d 451; State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, supra, 180 Conn. at 633, 431 A.2d 501.

In assessing the four considerations noted, the trial court found that Milton's statement fulfilled at least two of the requirements. The court determined that Milton, the declarant, was unavailable because of recent surgery and also because of the existence of a testimonial privilege; see State v. Mayette, supra, 204 Conn. at 577, 529 A.2d 673; State v. DeFreitas, supra, 179 Conn. at 441, 426 A.2d 799; and that her statement was against her penal interest. The court, however, questioned the credibility of Luz Rosado, the defendant's wife, and the circumstances under which Milton's statement was made. The court's skepticism was apparently triggered by the fact that Milton's statement was made, not in an unguarded moment to a confidant but rather to the secretary of the attorney representing her brother, the defendant, in the attorney's office, to which office she had been delivered by the defendant's wife, while Milton herself had serious, apparently well founded, criminal charges pending against her arising out of the same incident. ⁷ See United States v. Goins, 593 F.2d 88, 91 (8th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 52, 62 L.Ed.2d 35 (1979); State v. Mayette, supra, 204 Conn. at 578, 529 A.2d 673; State v. Hernandez, supra, 204 Conn. at 392-93, 528 A.2d 794. It is small wonder that in its ruminations the trial court considered the possibility that Milton's statement, the statements of Santana and Cuellar and the circumstances under which they were made, were indicative of an attempt by Luz Rosado, Milton, Santana and Cuellar to exonerate the accused and, as the court said, "let Milton take the heat." See...