State v. Sotomayor

• Decision Date: 16 January 2001
• Docket Number: (AC 20518)
• Citation: 61 Conn. App. 364,765 A.2d 1
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. HERMINIO SOTOMAYOR

61 Conn. App. 364

765 A.2d 1

STATE OF CONNECTICUT v. HERMINIO SOTOMAYOR

(AC 20518)

Appellate Court of Connecticut.

Argued September 21, 2000.

Officially released January 16, 2001.

Zarella, Pellegrino and O'Connell, JS. Jeremiah Donovan, with whom was Rita Christopher, for the appellant (defendant).

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Joseph T. Corradino, assistant state's attorney, for the appellee (state).

Opinion

ZARELLA, J.

The defendant, Herminio Sotomayor, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a).¹ On appeal, the defendant claims that the trial court improperly (1) admitted into evidence for substantive purposes prior inconsistent written statements of a witness, (2) refused to instruct the jury on manslaughter in the second degree pursuant to General Statutes § 53a-56 (a) (1),² and (3) declined to instruct the jury that the use of a deadly weapon in some circumstances may be evidence of extreme indifference to human life pursuant to General Statutes § 53a-55 (a) (3).³ We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the late evening of October 10, 1989, sixteen year old Angel Lauriano and several friends were hurling eggs at passing vehicles on William Street in Bridgeport. At approximately 11 p.m., one of the eggs hit a passing vehicle. The driver, who later was identified as the defendant, immediately stopped and emerged from the vehicle armed with a rifle. The defendant chased the fleeing teenagers. Upon nearing Lauriano, the defendant shot the youth six times from behind. Lauriano died from multiple gunshot wounds.

Lauriano's murder remained unsolved until 1998. In April, 1998, Bridgeport police arrested the defendant's cousin, Manuel Arvelo, on an unrelated drug offense. While in custody, Arvelo asked to speak with a detective. Arvelo informed Detective Leonard Sattani of the Bridgeport police department that he had information about Lauriano's death and that his cousin, the defendant, had committed the murder. In a written statement dated April 13, 1998, Arvelo averred: "I saw my cousin stop and get out of his car with this rifle and chase this kid down and shoot him up.... I saw the kid bending down saying don't shoot me, he shot him, he emptied out the rifle on him, close range, I was right there." Arvelo gave a second statement on April 15, 1998, in which he reiterated much of the information that he had provided in his earlier statement. Arvelo swore to and signed each statement.

On April 17, 1998, Bridgeport police executed a warrant for the defendant's arrest. After waiving his rights to remain silent and to the assistance of counsel, the defendant gave a written statement in which he confessed to shooting Lauriano. The defendant recounted the incident as follows: "I was going down Noble [Avenue] to William [Street]. They started to throw eggs at my car, and it was dark at that time, I got out of the car and I was armed, I saw someone running and I went around this house and I saw this guy coming out and he ran toward me and I did not know if he had a gun, I reacted and I fired several shots. I ran back to the car." The defendant further stated that he fired about seven or eight shots.⁴ Subsequently, the defendant was charged with and convicted of Lauriano's murder.⁵ This appeal followed.⁶

I

The first issue we address is whether the court improperly admitted Arvelo's written statements into evidence for substantive purposes. The following additional facts and procedural history are relevant to our resolution of this claim.

At trial, Arvelo repudiated his April 13 and 15, 1998 statements.⁷ He claimed not to recall the events of October 10, 1989, because they were "[t]oo long ago." Although the state attempted to refresh Arvelo's memory by showing him his two written statements, he could remember only talking to Sattani "about something that [he] heard about somebody being killed." Arvelo attributed his lack of memory to his undergoing withdrawal from heroin at the time that he had given the statements. Nevertheless, Arvelo admitted to signing, without reading, each statement. He further testified that the police did not threaten, use force or promise help with the charges that were then pending against him to obtain his statements. He did claim, however, that the police paid him $20 for signing the April 15, 1998 statement.

On cross-examination by the defense, Arvelo testified that he gave the April 13, 1998 statement after being held for two days on an unrelated drug charge. He also contradicted his earlier testimony, claiming on cross-examination that he gave the April 15, 1998 statement after Sattani picked him up at his home, brought him to the police station and "threatened me if I wouldn't sign the rest, he would put me back in jail."

The state then called to the witness stand Sattani, the Bridgeport police detective who had taken each of Arvelo's statements. Sattani disputed Arvelo's recollection and testified as follows. On April 13, 1998, he received a call from the booking officer saying that an incarcerated individual wanted to speak with a detective. Sattani did not know Arvelo or why he wanted to talk to a detective. He also did not know Arvelo's status with respect to any pending charges. According to Sattani, Arvelo told him that "he had information regarding a homicide that occurred several years ago and that he was willing to talk to me about that."⁸ Without inducement or promises from Sattani, Arvelo agreed to give a signed, sworn statement. Sattani further testified that he asked Arvelo the questions and then typed Arvelo's responses.⁹ According to Sattani, Arvelo then read and signed each page of the written statement. Sattani testified that Arvelo also acknowledged the truth of the statement.¹⁰ Sattani recalled that Arvelo did not exhibit difficulty in reading the statement and that he did not ask any questions about its contents or want to correct the statement in any way.

On cross-examination by the defense, Sattani admitted that he did not know how long Arvelo had been at the station before speaking with him. When asked whether he could recognize an individual experiencing narcotics withdrawal, Sattani answered that he could and that Arvelo neither appeared to be under the influence of narcotics nor exhibited symptoms of withdrawal.

Following Sattani's cross-examination, the court excused the jury and, thereafter, held a hearing on the admissibility of Arvelo's April 13, 1998 written statement for substantive purposes. The defense did not dispute that Arvelo signed and swore to the statement. Instead, the defendant argued, as he does before this court, that the circumstances at the time Arvelo gave the statement, coupled with the fact that the events discussed therein took place at least nine years earlier, evidenced the inherent untrustworthiness of the information it contained. The state countered that State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), contemplated the present situation, namely, a witness on the stand repudiating his prior inconsistent written statement, and that the statements should be admitted for substantive purposes because each satisfies the four criteria for admissibility under Whelan.¹¹

The court found, inter alia, that Arvelo volunteered the information without suggestion from Sattani or any other officer and that Arvelo was not undergoing narcotics withdrawal at the time he gave the statement. The court further noted that although Arvelo claimed to be experiencing heroin withdrawal as he was testifying, "[h]e picked and chose what he was going to answer; which he would agree was in the statement; which he said was not accurate; his thought process while stating that he was at the present time undergoing withdrawal; was unimpaired as far as I could determine from making select[ive] decisions about the statement he had given." Over the defendant's objection, the court admitted Arvelo's April 13, 1998 statement for substantive purposes.

In the presence of the jury, the state further questioned Sattani about Arvelo's April 15, 1998 statement. According to Sattani, Arvelo returned to the detective bureau on April 15, 1998, of his own accord and gave a second statement regarding the Lauriano killing.¹² In recording Arvelo's second statement, Sattani followed the same procedures that he had used to transcribe the first statement. Sattani further testified that although he did not make any threats against or promises to Arvelo, another Bridgeport police officer gave Arvelo $20 because Arvelo claimed to need it for his children. Sattani emphatically denied that he and Arvelo discussed the $20 prior to taking the second statement or that Arvelo was given the money in exchange for his testimony. Over the defendant's objection, the court admitted Arvelo's April 15, 1998 statement pursuant to State v. Whelan, supra, 200 Conn. 743.¹³

While the defendant does not dispute that Arvelo swore to and signed the two statements, he argues, instead, that the circumstances giving rise to the statements lack the necessary indicia of reliability for admission under the Whelan doctrine, and, thus, the court improperly admitted the statements into evidence for substantive purposes. The defendant calls our attention to the fact that the information contained in Arvelo's statements pertained to events occurring approximately nine years earlier. He also points to Arvelo's testimony that he was experiencing heroin withdrawal symptoms when he had given the statements. The defendant further highlights the facts that Arvelo was in custody when he gave the first statement and that Arvelo received $20 from the Bridgeport police after he signed the...