State v. Silva

• Citation: 339 Conn. 598,262 A.3d 113
• Decision Date: 15 July 2021
• Docket Number: SC 20266
• Parties: STATE of Connecticut v. Joseph SILVA
• Court: Supreme Court of Connecticut

339 Conn. 598

262 A.3d 113

STATE of Connecticut

v.Joseph SILVA

SC 20266

Supreme Court of Connecticut.

Argued January 12, 2021

Officially released July 15, 2021^*

Mark Rademacher, assistant public defender, for the appellant (defendant).

Jonathan M. Sousa, deputy assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, Gail P. Hardy, former state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

Robinson, C.J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

KELLER, J.

Following a jury trial, the defendant, Joseph Silva, was convicted of two counts of murder in violation of General Statutes § 53a-54a (a)¹ and one count of murder with special circumstances in violation of General Statutes § 53a-54b (7).² The trial court vacated the conviction on the murder counts³ and imposed a mandatory sentence under General Statutes § 53a-35a (1) (B) of life imprisonment without the possibility of release on the murder with special circumstances count. The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b) (3). On appeal, the defendant claims that the trial court (1) incorrectly instructed the jury on the "in the course of a single transaction" element of murder with special circumstances, (2) improperly failed to provide the jury, sua sponte, with a special credibility instruction with respect to one of the state's witnesses, who the defendant claimed was the actual perpetrator of the murders, and (3) violated his state and federal constitutional rights to counsel and to present a defense by precluding defense counsel from making an argument in closing argument that the absence of testimony from a certain witness created reasonable doubt. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. On May 16, 2016, the defendant shot and killed the victims, Joshua Cortez and Alysha Ocasio, at the intersection of Campfield Avenue and Cowles Street in Hartford. The defendant and Cortez had a preexisting feud due in part to the fact that, when Cortez worked for the defendant selling marijuana, he had sold customers fake marijuana, prompting customers to complain to the defendant, and because Cortez’ friend, Juan Gomez, had had sex with Coraima Velez, with whom the defendant had a child, after Cortez introduced them to each other. As a result, on the night of May 16, 2016, the defendant, joined by passengers Kailei Opalacz, with whom he had been in an on-and-off relationship for several years, and Josue Rodriguez, his friend, drove his car around Hartford looking for Cortez. The defendant found Cortez sitting in the driver's seat of Ocasio's Honda Accord by the intersection of Campfield Avenue and Cowles Street. The defendant stopped and exited his car and walked toward Cortez, who had exited the Accord. When the defendant reached Cortez, he shot him twice, once in the face and once in the top of his head. The defendant then walked over to the driver's side of the Accord and fired multiple shots at Ocasio, who was seated in the front passenger seat.

After shooting the two victims, the defendant ran back to his car, climbed into the driver's seat, and said to Opalacz and Rodriguez, "That's how Joseph Silva does it" and "I can't believe I just did that ...." While speeding away from the murder scene, on a sharp left turn, the front right wheel of the defendant's car detached, immobilizing the car. Opalacz called her best friend, Nyasia Villegas, and told her to come pick them up, which Villegas did immediately. Villegas then drove them to the home of the defendant's mother on Montrose Street in Hartford, where the defendant exited the car and hid the murder weapon under a pile of wood at the rear of the property. The group then drove to a Walmart store in Manchester, where the defendant bought a shirt and a pair of pants, which he changed into in the store's bathroom. During the drive to Walmart, the defendant described for the other passengers how he had killed Cortez and Ocasio. The defendant explained that, after he exited his car and approached Cortez, he said to Cortez, "what up, nigga, what up," before shooting him in the face. The defendant placed his fingers on Villegas’ forehead to demonstrate how he shot Cortez in the head. The defendant then described how he then walked over to Ocasio's Accord, opened the door, and shot her in the chest.

On the way back from Walmart, the car was stopped and searched by Hartford police officers, and the passengers were taken to the Hartford police station for questioning. During questioning, Opalacz, Villegas, and Rodriguez all provided statements implicating the defendant in the victims’ murders. The following morning, Hartford police officers searched the property of the defendant's mother and found the murder weapon where the defendant had concealed it the night before. The defendant was arrested and charged with two counts of murder and one count of murder with special circumstances.⁴

At trial, the defendant presented a third-party culpability defense implicating Opalacz, arguing that she, rather than he, had murdered the victims. Specifically, the defendant adduced evidence that Opalacz and Velez, the mother of his child, had engaged in an escalating feud for the defendant's affections and that Ocasio, Velez’ best friend, Ocasio's boyfriend, Cortez, and Villegas had all become embroiled in that feud. As a result of the feud, a week or so before the murders, Velez’ brother had smashed the rear window of Opalacz’ Nissan Altima with a baseball bat and an unidentified individual threw a rock out of Ocasio's Accord toward Opalacz’ Altima. In retaliation, Opalacz and Villegas drove to Ocasio's Accord, and Villegas fired a BB gun at it, damaging the rear, driver's side window. The defendant also elicited testimony from Villegas that the defendant and Opalacz each had paid one half of the purchase price for the murder weapon and that, on May 16, 2016, the night of the murders, Opalacz had held that weapon before leaving with the defendant and Rodriguez to drive around Hartford looking for Cortez. On the basis of this evidence, defense counsel argued during closing argument that Opalacz alone had the motive, means, and opportunity to kill the victims. The jury rejected that defense and found the defendant guilty on all counts. The trial court thereafter rendered judgment in accordance with the jury's verdict, vacated the conviction on the murder counts; see footnote 3 of this opinion; and imposed a sentence of life imprisonment without the possibility of release. This appeal followed. Additional facts and procedural history will be set forth as necessary.

On appeal, the defendant claims that the trial court (1) incorrectly instructed the jury that, if it found that there was a temporal nexus between the two murders, it could find that the state has proved the "in the course of a single transaction" element of murder with special circumstances, (2) improperly failed to provide the jury, sua sponte, with a special credibility instruction concerning Opalacz’ testimony in light of the evidence implicating her in the victims’ murders, and (3) violated his state and federal constitutional rights to counsel and to present a defense by precluding defense counsel from arguing in closing argument that Velez’ absence as a witness at trial created reasonable doubt. Because the defendant's claims are unpreserved, he seeks review pursuant to State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015),⁵ or, alternatively, for plain error.⁶

We conclude that the defendant's first and third claims are reviewable under Golding but that his second claim is reviewable only for plain error. For the reasons set forth hereinafter, we reject all three claims.

I

The defendant first claims that the trial court incorrectly instructed the jury as to the "in the course of a single transaction" element of murder with special circumstances, thereby relieving the state of its burden of proving that element beyond a reasonable doubt. Specifically, the defendant argues that, under § 53a-54b (7), the state can prosecute murder with special circumstances in one of two ways: (1) by proving that the murders took place at the same time, or (2) by proving that they took place in the course of a single transaction. The defendant further argues that, under State v. Gibbs , 254 Conn. 578, 606, 758 A.2d 327 (2000), the state cannot prove that the murders occurred in the course of a single transaction by evidence of a temporal connection alone but, rather, must establish that he "possessed a plan, motive, or intent common to [both] murders." (Internal quotation marks omitted.) Because the court instructed the jury that it could find the single transaction element proven by either evidence of a temporal connection or a common plan, motive, or intent, the defendant argues that the jury was misled and "almost certainly" chose to find the element satisfied by evidence of a temporal connection because that was "the easier, more direct route to conviction," which allowed the jurors to "avoid the difficult question" of the defendant's common motive or plan for killing both Cortez and Ocasio, or whether he even had such a common motive or plan. The defendant finally argues that, because the state charged him with murder of two people "in the course of a single transaction," rather than "at the same time," and because the jury was instructed that it could find him guilty on the basis of a temporal connection alone, "[t]he court's instructions on murder with special circumstances effectively enlarged count three of the information, allowing him to be convicted of a crime with which he had never been charged ...."

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