State v. Taylor
| Decision Date | 31 December 1996 |
| Docket Number | No. 15322,15322 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Derrick James TAYLOR. |
Hope C. Seeley, with whom, on the brief, was Hubert J. Santos, Hartford, for appellant (defendant).
Christopher T. Godialis, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Herbert E. Carlson, Jr., Senior Assistant State's Attorney, for appellee (state).
Before CALLAHAN, C.J., and BERDON, NORCOTT, KATZ and PALMER, JJ.
The principal issue in this appeal is whether the trial court violated the defendant's federal and state constitutional rights to due process of law by delivering a missing witness instruction under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), because the defendant had failed to call an available witness. The defendant, Derrick James Taylor, was convicted after a jury trial of the crimes of murder in violation of General Statutes § 53a-54a (a), 1 assault in the first degree in violation of General Statutes § 53a-59 (a)(1), 2 and conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a). 3 The trial court subsequently granted the defendant's motion for a judgment of acquittal with respect to the charge of assault in the first degree and, thereafter, the court substituted a verdict of guilty of assault in the second degree in violation of General Statutes (Rev. to 1993) § 53a-60 (a)(2). 4 The defendant appeals his judgment of convictions to this court pursuant to General Statutes § 51-199(b)(3). 5 We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. During the evening of August 28, 1992, and the early morning of August 29, 1992, the defendant attended a party with members of the Latin Kings on Seymour Street in Hartford. At about 1 a.m., Felix Baez, another guest at the party, asked the defendant to drive him on the defendant's motorcycle to the Cambrense Cafe, a bar and restaurant located on New Park Avenue in Hartford. Helder Aguiar, the sixteen year old son of the owner, and Fernando Aguiar, the owner's brother, were working at the cafe that night. Sometime before 1:30 a.m. on August 29, 1992, Baez and the defendant arrived at the cafe on the defendant's motorcycle. Almost immediately after they entered the cafe, Baez began arguing with another patron. Fernando, who was tending bar, asked both Baez and the defendant to leave. The defendant complied, but Baez did not. Fernando then grabbed Baez by the shirt collar and pushed him out the door. The defendant watched but did not take part in the struggle between Baez and Fernando, which continued outside the cafe and ended when Baez was thrown to the sidewalk. The defendant pointed his right index finger at Fernando and said "wait a minute." As he stood up, Baez warned "we'll be back." Baez tried to mount the defendant's motorcycle, but in so doing, he knocked the motorcycle to the ground and broke a handlebar.
The defendant then drove Baez on his motorcycle to Baez' apartment on Madison Street in Hartford. Olga Sorra, a fifteen year old who was baby-sitting Baez' children at his apartment, joined the defendant on his motorcycle after he had dropped off Baez. Sorra and the defendant returned to the party. When they arrived at the party, the defendant asked someone where the "coronas" 6 were, and the defendant was told that they were in the back room. The defendant entered the room and when he came out, he told Sorra that he was leaving, but that he would be back. Soon thereafter, the defendant left the party.
Sometime after 2 a.m., Helder Aguiar stepped outside of the Cambrense Cafe to help Fernando Aguiar look for keys he had lost during the scuffle with Baez. As he stood outside, Helder noticed two people carrying handguns, whose faces were wrapped with T-shirts covering all but their eyes, moving up the south side of the cafe toward Fernando. As Helder yelled to Fernando to warn him of the approaching danger, one of the assailants put his revolver against Fernando's head and the other assailant fired a semiautomatic pistol at Helder and struck him with two bullets. Helder observed that the person who shot him had the same build as the defendant and wore exactly the same clothing from the waist down that the defendant had worn one hour earlier at the cafe. Before he lost consciousness, Helder saw both armed men firing bullets at Fernando as he lay on the sidewalk.
Fitzalbert Williams, a state prisoner on weekend furlough, lived in a third floor apartment at 6 New Park Avenue within view of the cafe. Williams was lying awake in bed sometime after 2 a.m. on August 29, 1992, when he heard two gunshots. Williams went to his window, he opened it, and, as he looked out the window, saw the defendant with a pistol in his hand. Williams testified that nothing obstructed his view, that the lighting was "pretty bright" and that his eyesight was "very good." Williams stated that he saw a "half-front view" of the defendant from the nose back to the right side, and that the defendant was not then wearing anything that covered his face. Williams further testified that he saw "sparks," and then observed the defendant turn in his direction before running away. As the defendant began to run away, Williams saw a second armed person appear and fire gunshots at a person lying on the sidewalk. After firing the shots, the other assailant ran in the same direction as the defendant. The defendant helped the other assailant over a fence, and they both disappeared out of Williams' sight.
At approximately 2:22 a.m. on the morning of August 29, 1992, Hartford police officers Antonio Champion and Carlos Rosario were at the intersection of Park Street and Sisson Avenue when they heard gunshots coming from the direction of New Park Avenue. Both officers responded to the sound of gunfire and ran to the intersection of Park Street and New Park Avenue. Champion saw Fernando Aguiar lying on the ground, having been shot several times in the face and upper part of his body. Both Fernando and Helder Aguiar were taken to Hartford Hospital where Fernando was pronounced dead. The autopsy on Fernando revealed that multiple gunshot wounds to the head and body were the cause of his death. Helder was treated for two gunshot wounds and released.
When Sorra saw the defendant return to the Latin Kings party at approximately 2:30 a.m., the defendant was not riding his motorcycle. Rather, he was a passenger in a Ford Bronco driven by another member of the Latin Kings. Subsequently, Sorra and the defendant were driven to his apartment in Manchester, and Sorra spent the remainder of the night with him. Later that morning, a person who had been at the party the night before came to the defendant's apartment and told the defendant that he should leave town. The defendant filled a suitcase with clothes and left the apartment. Sorra left for Puerto Rico, and she did not see the defendant again until she testified at his trial. Additional facts will be discussed where relevant.
On appeal, the defendant claims that: (1) the trial court denied him due process of law by instructing the jury that it could draw an adverse inference from his failure to call an alibi witness and identify her, and by allowing the state to argue during its statement to the jury that such an inference should be drawn; (2) the evidence presented by the state was insufficient to support the jury's verdict; (3) the trial court denied him due process of law by refusing to suppress evidence of Williams' pretrial identification of the defendant; (4) the trial court improperly admitted evidence relating to his involvement in gang activity and allowed the state to comment on his gang affiliation in closing argument; and (5) the trial court improperly instructed the jury concerning the standard of proof beyond a reasonable doubt. We are unpersuaded by these claims and, accordingly, we affirm the judgment of the trial court.
The defendant first claims that the trial court improperly instructed the jury that it could draw an adverse inference from his failure to call an alibi witness, and that the trial court improperly allowed the state to comment during summation that such an inference should be drawn. In this regard, the defendant challenges the trial court's reliance, in a criminal trial, on the rule set forth by this court in Secondino v. New Haven Gas Co., supra, 147 Conn. at 675, 165 A.2d 598, that the " 'failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.' " Because he did not object to the trial court's Secondino instruction, the defendant did not preserve this claim for appeal. The defendant argues, however, that the Secondino instruction violated his federal and state constitutional rights to due process of law and, therefore, that his unpreserved claim merits review under the standard set out in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). 7 We disagree.
The following additional facts are relevant to the resolution of this claim. The defendant testified at trial that he was with his girlfriend, Michelle Michalski, at the party during the time of the shootings, 8 that he remained at the party with Michalski from 2 a.m. until 4 a.m., and that he left the party at 4 a.m. with Sorra. Although the defendant clearly identified Michalski as an alibi witness, and though Michalski was present throughout his trial, he chose not to call her. The state sought permission to comment on the defendant's failure to call Michalski and requested that the trial court deliver a Secondino instruction to the jury. Finding that Michalski both was available to testify and was someone...
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