State v. Torres

• Decision Date: 11 April 1989
• Docket Number: No. 13382,13382
• Citation: 210 Conn. 631,556 A.2d 1013
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Raphael TORRES.

Page 1013

556 A.2d 1013

210 Conn. 631

STATE of Connecticut v. Raphael TORRES.

No. 13382.

Supreme Court of Connecticut.

Argued Dec. 14, 1988.

Decided April 11, 1989.

Jon C. Blue, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant).

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom, on the brief, was Herbert G. Appleton, Asst. State's Atty., for the appellee (State).

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

ARTHUR H. HEALEY, Associate Justice.

In this case, the defendant raises four claims of error in his trial in which the jury found him guilty of murder in violation of General Statutes § 53a-54a. ¹ He maintains first that the court erred in admitting the probable cause hearing testimony of a witness, Victor Reyes, who invoked his privilege against self-incrimination and refused to testify after the state advised him that it might charge him with perjury or false statement if Reyes carried out a claimed recantation of his earlier testimony. The defendant also claims that the trial court erred in sustaining a verdict based in the main on such probable cause hearing testimony. The third claim of error is based on the trial court's restriction of the defendant's ability to impeach the declarant Reyes by (a) denying the defendant's request to have the declarant invoke his privilege against self-incrimination in front of the jury, (b) refusing to explain to the jury why the declarant of the probable cause testimony was unavailable, and (c) refusing to permit the defendant to present evidence that the declarant was advised by the state that he might be arrested for perjury or false statement if his testimony at trial repudiated his probable cause hearing testimony. Finally, the defendant claims error in the trial court's refusal to allow him to impeach the declarant by prior inconsistent statements made before the probable cause hearing, although it permitted the state to corroborate the declarant's probable cause testimony with consistent statements made before the hearing. We find error in the defendant's fourth claim and order a new trial; thus, we need not address in detail the first three claims.

The facts that the jury reasonably could have found and that are relevant to the defendant's fourth claim of error must be set out at this point and will be supplemented later as necessary. At approximately 7 a.m., on Tuesday, November 25, 1986, officers from the Hartford police department responded to a report of a body in a vacant lot at 89 Walnut Street. Upon their arrival, the officers discovered the victim's body with a hole in the chest and no signs of life. Identification found on the victim identified him as Miguel R. Maldonado of New Haven. ² An autopsy revealed the cause of death to be a stab wound with penetration of the right lung and aorta. The medical examiner estimated the time of death at about 1 or 2 a.m. on November 25. There was a pool of blood in front of 95-97 Walnut Street and drag marks leading from the street to the embankment on the lot where the body was located.

On Tuesday, November 25, 1986, as part of their investigation, the police approached Victor Reyes, who lived at 103 Walnut Street with his family. Neither Reyes, nor any family members who were interviewed at that time, admitted to any knowledge of the apparent homicide the night before. At that time, Reyes's mother, Bonnie Sanchez, told investigators that neither she nor anyone in her family had seen the incident. At some point after November 25, however, Reyes informed the police that he had observed the homicide. ³

On December 2, 1986, Reyes provided a description of the assailant to Detective James Malcolm of the Hartford police department. Reyes described the assailant as a dark complected Hispanic or black male, standing approximately 5 feet 9 inches tall, weighing 160 pounds and wearing a tan jacket with a green scarf. ⁴ On the same day, Reyes was shown an array of five "mug shots," one being a picture of the defendant taken on the day of the murder, November 25, but Reyes did not identify any of these pictures as that of the assailant. There was testimony that Reyes was then shown "[e]very available photo" at the Hartford police department, but he failed to identify the assailant.

Reyes's next attempt at identifying the assailant occurred on January 9, 1987. Malcolm showed Reyes an array of photographs of seven Hispanic males, one of which was a photograph of the defendant taken on January 9, 1987. From this array, Reyes identified the photograph of the defendant as that of the assailant. The defendant was arrested that same day.

On February 20, 1987, a hearing was held to determine whether there was probable cause to believe that the defendant had committed the charged offense. See General Statutes § 54-46a. Reyes testified for the state at the probable cause hearing that on the night of November 25, 1986, as he looked out his window, he saw two men arguing in the street near his house on Walnut Street. One man (the victim) had something in his hand that the second man grabbed and then the second man ran across Walnut Street. The victim yelled for help and ran after the other man. Seeing that no one was coming to help, the man with the item ran back toward the victim, and when he reached the victim, he hit him with his fist, knocking the victim down. The man then picked up the victim, carried him toward the sidewalk and stabbed him once in the chest with a knife. He then threw the victim into the vacant lot. Reyes further testified that, on January 9, 1987, he had identified the defendant as the assailant, and he again identified the defendant as the assailant in court at the probable cause hearing. At that hearing, the court found probable cause and thereafter the defendant pleaded not guilty and elected trial by jury.

On November 17, 1987, just before the defendant's trial, Reyes told the assistant state's attorney who was to try the case and a number of other persons involved in the investigation that he had lied at the probable cause hearing about the defendant's involvement in the crime. At trial, but out of the presence of the jury, the court heard testimony that the assistant state's attorney had informed Reyes that if he were to testify at the defendant's trial and repudiate the testimony that he gave at the probable cause hearing, the state might bring perjury or false statement charges against him. Apparently, because of this, outside of the presence of the jury and with his own attorney present, Reyes invoked his fifth amendment right not to incriminate himself in the defendant's trial. Thereafter, the court found Reyes to be unavailable as a witness at the defendant's trial. Accordingly, over the defendant's objection, the court admitted the transcript of Reyes's probable cause testimony in the defendant's trial after finding that testimony to be reliable. The transcript of Reyes's testimony at the probable cause hearing was then read to the jury.

At trial, in order to impeach Reyes's probable cause hearing testimony, the defendant called Inspector Steven Oborski from the state's attorney's office. Oborski testified that he was present on November 17, 1987, when Reyes informed the assistant state's attorney that he had lied at the probable cause hearing about the defendant's involvement in the crime. To impeach Reyes's credibility further, the defendant called Reyes's mother, Bonnie Sanchez, who testified that on February 20, 1987, just after the probable cause hearing, Reyes told her that the defendant was not the person who killed the victim. Sanchez also testified that Reyes told her on a number of occasions after the probable cause hearing that "[Torres] was not the one."

Following the defendant's impeachment of Reyes's probable cause hearing testimony, the state offered testimony to rehabilitate Reyes's credibility. On cross-examination of Sanchez, the state elicited testimony that Sanchez did not tell the police that Reyes had told her that he had lied at the probable cause hearing immediately after she found this out, but did so when the police came to her house sometime later. On cross-examination of Oborski as a witness for the defense, the state elicited testimony that, on November 4, 1987, he and another inspector went to Reyes's home and took him to their office where they met with the assistant state's attorney who was going to try the case for the state. In going over Reyes's testimony to be given at the trial, Reyes said that his testimony at trial "[would be] the same as the probable cause hearing, the same testimony." Oborski also testified that on November 17, 1987, Reyes again stated that he saw the defendant stab the victim on Walnut Street.

In addition to these proffered consistent statements, the state also offered as evidence a signed statement that Reyes gave to the police on January 9, 1987. The statement contained Reyes's description of the homicide on Walnut Street and his identification of the defendant's picture at the police station on January 9, 1987. It is the trial court's admission of this consistent written statement and two other consistent statements of Reyes made to Inspector Lawrence Skinner of the state's attorney's office, one on February 19, 1987, and the other just before the probable cause hearing on February 20, 1987, ⁵ and the exclusion of certain inconsistent statements offered by the defendant and also made before the probable cause hearing that the defendant claims as reversible error. For the reasons set forth below, we agree that the trial court erred and that a new trial is necessary.

The trial court excluded two statements offered by the defendant as inconsistent with Reyes's probable cause hearing testimony. The first was a statement by Sanchez that on the very day of the homicide, November 25, 1986, Reyes told her that the...