State v. Sanchez

• Decision Date: 05 August 1986
• Docket Number: No. 12225,12225
• Citation: 513 A.2d 653,200 Conn. 721
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. David SANCHEZ.

Page 653

513 A.2d 653

200 Conn. 721

STATE of Connecticut v. David SANCHEZ.

No. 12225.

Supreme Court of Connecticut.

Argued April 29, 1986.

Decided Aug. 5, 1986.

Kevin C. Connors, Special Public Defender, with whom, on the brief, was Michael J. Whelton, Sp. Public Defender, for appellant (defendant).

Steven M. Sellers, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Herbert Appleton, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

CALLAHAN, Associate Justice.

After a jury trial, the defendant, David Sanchez, a/k/a Cecilio DeLeon, was convicted of felony murder in violation of General Statutes §§ 53a-54c and 53a-54a(c). ¹ He was sentenced to a term of imprisonment of not less than twenty-five years to life. On appeal, he claims that the trial court erred in: (1) excluding the hearsay confession of a third party; and (2) denying the defendant's motion to open his case after the close of evidence but prior to closing arguments. We find no error.

The jury could reasonably have found that on December 23, 1980, at about 5:30 p.m. two hispanic males entered Jack's Pharmacy at 714 Albany Avenue in Hartford. The co-owners of the pharmacy, Joseph Gartrell and Robert Gentry, as well as an employee, Ruby McKnight, were working in the pharmacy that evening. No customers were in the pharmacy. Upon entering the pharmacy, the two men proceeded to the cooler, removed an eight-pack of beer, and placed it on the sales counter, behind which Gartrell, Gentry and McKnight were standing. One of the men then inquired as to the price of the beer, whereupon he took a ten dollar bill out of his wallet and placed it on the counter. McKnight opened the cash register to get change at which time the same man placed the barrel of a gun on the cash register, and told McKnight to "leave it as is." McKnight complied with the man's demand for her to lie face down on the floor behind the counter. Gentry and Gartrell remained standing. Gentry then said something in Spanish to one of the men, at which time the man fired a handgun at Gentry, fatally wounding him. McKnight later identified the defendant in a photo array as the person who shot Gentry. Gartrell also identified the defendant in a corporeal lineup as the person who shot Gentry. Other facts will be discussed as they become relevant to the specific claims raised.

I

The defendant's first claim is that the trial court erred in excluding the hearsay confession of a third party. The defendant attempted to introduce a statement made out of court by a third party, one Jovino Solar. The statement was sought to be introduced through Maria Navarro, who had previously testified that the defendant had been with her on the night of the robbery and murder.

In the absence of the jury, the defendant offered Navarro's testimony concerning the statement allegedly made by Solar, viz., that he had committed the robbery and murder at Jack's Pharmacy on December 23, 1980. Navarro, who had lived with the defendant for eight years at the time of the trial, testified that on December 23, 1980, she was with the defendant in their apartment all day until late that evening, when Solar's brother visited them. She further testified that the three then left her apartment and went to an apartment where they met Solar. Navarro testified that Solar at that time told her that he had robbed and "killed the guy" at Jack's Pharmacy. According to Navarro's testimony, Solar told her that he had entered the pharmacy at about 5 p.m. and said, "Don't move, anybody," whereupon the owner of the pharmacy "fired the gun three times." In response, Solar claimed he fired his gun three times "because he got upset." The defendant's counsel argued that, although this statement constituted hearsay, it should be admitted as a declaration against penal interest, an exception to the hearsay rule. The trial court refused to admit the statement.

In State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980), we held that third party statements against penal interest exculpatory to a defendant were no longer per se inadmissible. See also State v. Frye, 182 Conn. 476, 479, 438 A.2d 735 (1980); State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). The rule we adopted in DeFreitas is consistent with the United States Supreme Court decision in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and is also in accord with rule 804(b)(3) of the Federal Rules of Evidence providing that trustworthy third party statements against penal interest exculpatory to a defendant are admissible if the declarant is unavailable. "Courts have extracted from Chambers four general considerations relevant to an investigation of the trustworthiness of a third party confession: '(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.' " State v. Frye, supra, 182 Conn. 479, 438 A.2d 735. No single factor in the test for determining trustworthiness is necessarily conclusive; State v. Gold, supra, 180 Conn. 633-34, 431 A.2d 501; the factors are reflective of the fact that there can be " 'no precise formulation of the proof which would constitute sufficient evidence of the trustworthiness' " of such declarations. State v. Frye, supra, 182 Conn. 480, 438 A.2d 735.

In our review of a trial court's ruling on the admissibility of the third party confession, the determination as to whether the third party declaration against penal interest is trustworthy is left to the sound discretion of the trial court. State v. DeFreitas, supra. In this case, the trial court excluded the proffered testimony on the ground that "the corroborating circumstances clearly indicate[d] that the alleged statement was untrustworthy." The unavailability of the declarant was established, and it is undisputed that the alleged statement was against the declarant's penal interest. Therefore, we will examine only the evidence concerning the time of the declaration, the party to whom it was made, and the evidence corroborating the statement. See State v. DeFreitas, supra, 179 Conn. 449, 426 A.2d 799.

The defendant first argues that Solar's statement was made at a time and to a person that would tend to indicate trustworthiness. We disagree. Although the statement was allegedly made only hours after the crimes occurred; see State v. Gold, supra, 180 Conn. 634, 431 A.2d 501; cf. United States v. Satterfield, 572 F.2d 687 (9th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978) (confession made two years after crime); the record does not support the claim that it was made to a person which would indicate that it was trustworthy. Navarro testified that Solar had lived in an apartment above her and the defendant and that she had known him for "maybe one month." The remainder of Navarro's testimony concerned Solar's request that Navarro and Sanchez assist him in leaving Hartford and the fact that Solar had spent the night at their apartment following the killing of Gentry. None of this testimony, however, was corroborated by independent evidence. We conclude, as did the trial court, that there was no close, confidential relationship between the declarant and the witness that would indicate the trustworthiness of the alleged declaration by Solar. See State v. Gold, supra, 180 Conn. 634, 431 A.2d 501; cf. Lowery v. State, 401 F.Supp. 604 (D.Md.1975), aff'd without opinion, 532 F.2d 750 (4th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 312, 50 L.Ed.2d 285 (1976) (affidavit sworn to before prison official). Additionally, the untrustworthiness of Navarro's testimony was colored by her intimate relationship with the defendant with whom she had lived for eight years preceding the robbery and murder at Jack's Pharmacy. Cf. State v. Gold, supra, 180 Conn. 634-35, 638, 431 A.2d 501; People v. Craven, 54 Ill.2d 419, 429, 299 N.E.2d 1 (1973).

We now turn to the second factor, the corroboration of the statement. Unlike the situation in State v. Gold, supra, 180 Conn. 634, 431 A.2d 501, where "a myriad of corroborating circumstances were present" to indicate reliability, here the record reveals few, if any, corroborating circumstances. The declarant in this case was not placed in the vicinity of the crime by another witness. Therefore, there was no independent evidence that Solar had an opportunity to commit the murder. Cf. State v. Gold, supra, 634-35, 431 A.2d 501. Moreover, the alleged statement by Solar was in direct conflict with the testimony of the two eyewitnesses to the robbery and murder of Gentry. According to Navarro, Solar said that he had entered the pharmacy and said, "Don't move, anybody," whereupon the owner of the pharmacy "fired the gun three times." Both eyewitnesses testified that only one shot had been fired by the defendant. In addition, the police only found one spent bullet during their investigation at the pharmacy. Finally, there were discrepancies between Navarro's testimony concerning Solar's appearance at the time of the robbery and the eyewitness descriptions of the robbers. Navarro testified that Solar had a beard, mustache, and sideburns. The eyewitnesses testified that one of the robbers, later identified by them as the defendant, had only a "thin mustache" and that his younger accomplice was "clean shaven." Navarro's account of Solar's confession made no reference to any accomplice in the crimes. We conclude that the trial court did not abuse its discretion when it excluded Navarro's rendition of Solar's alleged statement in the absence of any corroborating circumstances to indicate that it was trustworthy.

II

The defendant next...