State v. Rosario

Decision Date09 January 2007
Docket NumberNo. 27374.,27374.
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Jerry ROSARIO.

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Dawn M. Gallo, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and McLACHLAN and WEST, Js.

FLYNN, C.J.

The defendant, Jerry Rosario, appeals from the judgment of conviction rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49(a)(2)1 and 53a-54a,2 and assault in the first degree in violation of General Statutes § 53a59.3 On appeal, the defendant claims that the trial court improperly (1) admitted evidence, through the testimony of two witnesses, of uncharged misconduct and (2) limited the admissibility of a witness' prior inconsistent statement for impeachment purposes only, in violation of the defendant's constitutional right to present a defense, which includes the right to present substantive evidence of third party culpability.

We conclude that the court properly admitted testimony concerning the defendant's possession on prior occasions of the particular handgun used to commit the charged crimes. We further conclude that the court properly admitted a witness' out-of-court, prior inconsistent statement, which included a statement made to the witness by another person, for the limited purpose of impeachment and not for the substantive purpose of proving third party culpability. Accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 12, 2003, the defendant drove his then girlfriend, Kristina Monterio, and her brother, Gino Monterio, to Charlotte Hungerford Hospital in Torrington so that Gino Monterio could be admitted into the hospital's substance abuse detoxification program. After learning that the hospital would not admit him for several hours, Gino Monterio telephoned Michael Haskill, looking for narcotics because Haskill, who also was involved in a romantic relationship with Kristina Monterio, frequently supplied Gino Monterio with drugs. On that particular day, Gino Monterio was unsuccessful in his quest to obtain narcotics from Haskill.

Thereafter, the defendant, together with Gino Monterio and Kristina Monterio, left the hospital and went to a liquor store. While Gino Monterio was inside the liquor store, the defendant attempted to park his motor vehicle. However, in doing so, the defendant's motor vehicle almost collided with a motor vehicle driven by Eric Hoenig, in which Steven Hill was a passenger. Hoenig and Hill were on their way to procure drugs at Haskill's house, which was located around the corner from the liquor store. A verbal confrontation ensued between the defendant and Hill, prompting Gino Monterio to exit the liquor store to determine the cause of the altercation. Gino Monterio, who was acquainted with Hill, then walked with Hill around the corner toward Haskill's house as the defendant followed them in his motor vehicle.

Because Haskill was awaiting the arrival of Hill, he was standing outside his residence. Haskill became upset when he observed Gino Monterio accompanying Hill because he did not like people to know where he resided. Soon after Hill and Gino Monterio arrived at Haskill's house, Haskill noticed the defendant approaching. The defendant and Haskill had exchanged words in the past concerning the romantic relationship that each had with Kristina Monterio.

Haskill then approached his motor vehicle, a Dodge Neon, which was parked in his driveway, and sat in the driver's seat. While Haskill was sitting in the Dodge Neon, he was shot in the head with a .45 caliber handgun. A shell casing from a .45 caliber handgun was recovered by the police department on the passenger side of the Dodge Neon.

The state charged the defendant with attempt to commit murder in violation of §§ 53a-49(a)(2) and 53a-54a, assault in the first degree in violation of § 53a-59 and two counts of commission of a class B felony with a firearm in violation of General Statutes § 53-202k.4 At trial, the state presented several witnesses, including Haskill, who testified that the defendant was the shooter.

Gino Monterio testified that after the defendant arrived at Haskill's house, Gino Monterio observed the defendant approach the driver's side of the Dodge Neon with his handgun drawn. The defendant then pointed the handgun at Haskill's head and fired. After the shooting, Gino Monterio approached the Dodge Neon, observed Haskill's injuries and then fled from the scene with the defendant. Gino Monterio further testified that, although he had not seen the .45 caliber handgun in the defendant's possession on that day prior to the shooting, he had seen it in the defendant's possession on prior occasions.

Hill also provided testimony connecting the defendant to the shooting of Haskill. According to Hill, after Haskill sat in the driver's seat of the Dodge Neon, the defendant proceeded up Haskill's driveway, reached into his pocket and produced a handgun. From his vantage point alongside the passenger side of the Dodge Neon, Hill observed the defendant, who was standing adjacent to the driver's side, shoot Haskill. Hill also testified that Gino Monterio was standing near him when this incident occurred. After Gino Monterio and the defendant departed from Haskill's house, Hill approached the Dodge Neon observed the nonresponsive Haskill and left the scene. Hill further testified that after the shooting, he telephoned his girlfriend, Shannon Roche, but he did not tell her that Gino Monterio had shot Haskill.

Haskill testified that as he was sitting in the driver's seat of the Dodge Neon, the defendant approached the driver's side, opened the door and shot him in the face with a handgun. Haskill testified that he was positive that the defendant was the person who shot him. Haskill stated that at the time of the shooting, Gino Monterio was standing on the passenger side of the Dodge Neon. Haskill also testified that he had seen the handgun that the defendant used to commit the crime in the defendant's possession on prior occasions.

The defendant presented Roche as one of his witnesses, and, on direct examination, defense counsel questioned her about a statement that she had made to the police, detailing the telephone conversation she had had with Hill after the shooting. Roche testified that when Hill telephoned her on the night of the shooting, he was crying. During her direct testimony, Roche denied having informed the police that Hill had told her that Gino Monterio had shot Haskill and instead claimed that she had told the police that "Gino's boy" had shot Haskill. Consequently, defense counsel produced Roche's written police statement, in which she reported that Hill had told her that Gino Monterio had shot Haskill. After rereading her written and signed police statement, Roche again denied telling the police that Gino Monterio had shot Haskill and continued to assert that she had told the police that Hill had said that "Gino's boy" was responsible for shooting Haskill.

Thereafter, defense counsel offered into evidence, as a prior inconsistent statement, Roche's written police statement, and the prosecutor objected. Outside of the jury's presence, the prosecutor argued that if Roche's prior inconsistent statement were admitted, then the proffered evidence should be admissible only for the purposes of impeachment and further contended that the court should instruct the jury that it could not consider the prior inconsistent statement for substantive purposes. In response, defense counsel argued that in addition to impeachment purposes, Roche's prior inconsistent statement also should be admitted substantively to establish third party culpability. The court then ruled that it would allow the admission of the prior inconsistent statement to impeach the testimony of both Hill and Roche and would provide a limiting instruction to the jury. Following the return of the jury, Roche testified that Hill told her that "Gino's boy" shot Haskill, and she denied reporting to the police that Hill had stated that Gino Monterio shot Haskill. Defense counsel then introduced Roche's statement as a prior inconsistent statement, and the court instructed the jury that it could consider Roche's prior statement for the limited purpose of determining the credibility of Hill and Roche and not for the truth of the matter asserted.

Subsequently, on May 7, 2004, the jury returned a guilty verdict on all counts, but on October 19, 2004, the court vacated, sua sponte, the guilty verdicts on the two counts of commission of a class B felony with a firearm.5 The court also denied the defendant's motions for a judgment of acquittal and for a new trial. Thereafter, on the offense of attempt to commit murder the court sentenced the defendant to nineteen years to serve plus five years enhancement because of the use of a gun. On the first degree assault count, the court also imposed a sentence, to run concurrently to the sentence for attempt to commit murder, of nineteen years to serve plus five years enhancement for a total effective sentence of twenty-four years incarceration. This appeal followed.

I

The defendant first claims that the court improperly permitted the state to present evidence, through the testimony of Haskill and Gino Monterio, of alleged prior misconduct. Specifically, the defendant argues that the court improperly admitted evidence that the defendant had the same gun, which was used to commit the charged crimes, in his possession on prior occasions because such evidence tended to show criminal propensity, was not relevant and was prejudicial.6 The state argues that...

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