State v. Torres

• Decision Date: 15 January 1998
• Docket Number: No. 14279,14279
• Citation: 47 Conn.App. 149,702 A.2d 142
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Victor TORRES.

Page 142

702 A.2d 142

47 Conn.App. 149

STATE of Connecticut v. Victor TORRES.

No. 14279.

Appellate Court of Connecticut.

Submitted on Briefs Oct. 1, 1997.

Decided Nov. 18, 1997.

Certification Denied Jan. 15, 1998. ^*

Susan M. Hankins, Assistant Public Defender, filed a brief for appellant (defendant).

John A. Connelly, State's Attorney, and Harry Weller and John Davenport, Assistant State's Attorneys, filed a brief for appellee (State).

Before LAVERY, LANDAU and SCHALLER, JJ.

LANDAU, Judge.

This matter is currently before us on remand from our Supreme Court. State v. Torres, 242 Conn. 485, 698 A.2d 898 (1997). The defendant appealed to this court from a judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) ¹ and 53a-54a (a). ² A divided panel of this court reversed the trial court's judgment on the ground that the evidence was insufficient to support the jury's guilty verdict. State v. Torres, 41 Conn.App. 495, 676 A.2d 871 (1996). Our Supreme Court granted the state's petition for certification, limited to the issue of whether the Appellate Court properly determined that the defendant's conviction was not supported by the evidence. State v. Torres, 239 Conn. 902, 682 A.2d 1012 (1996). Our Supreme Court reversed the judgment of the Appellate Court, concluding that the evidence was sufficient to sustain the jury's verdict, and remanded the case for our consideration of the defendant's remaining claims. The defendant claims that the trial court improperly admitted evidence of his gang membership and leadership positions because (1) the prejudicial effect of that evidence outweighed its probative value, and (2) the admission of the evidence deprived him of his constitutionally protected rights under the Connecticut and United States constitutions to due process, a fair trial and freedom of association. ³

Our prior opinion describes the facts that the jury reasonably could have found. "The defendant was a 'regional commander' of a street gang known as the 'Latin Kings.' For several weeks, the defendant's gang was involved in an ongoing dispute with a rival gang known as 'Los Solidos.' In the afternoon hours of September 26, 1993, the Latin Kings conducted an emergency meeting at Morales' Cafe [in Waterbury] to discuss a recent incident in which a member of their gang was shot at by a member of the rival gang. During the meeting, Jose Martinez, a member of the gang and a witness for the state, served as a lookout. Although Martinez had attended nine prior gang meetings in which the defendant had been present, he did not attend the emergency meeting, nor did he know whether the defendant was there. At the meeting, the gang devised a plan to retaliate for the shooting incident by killing a member of Los Solidos.

"After the meeting, Jose Velez, another gang member, instructed Martinez to keep watch for rival gang members from the roof of a four-story building located on East Clay Street. When Martinez arrived, four other gang members, including Velez, were already there. The group possessed an assortment of firearms including an M-16 rifle with a scope, a shotgun and several handguns. Velez had a portable CB radio that he used to maintain contact with other gang members, some of whom had remained at Morales' Cafe, which was referred to by the gang as 'sector one.' Other gang members were stationed in different locations throughout the area.

"At approximately midnight, the victim, Ana Plaza, was returning to her home at 79 East Clay Street, which is located across the street from the building where the group stood lookout on the roof. Plaza was accompanied by her son, Obdulio, her daughter, Melissa, and her infant granddaughter. As Plaza and her family prepared to enter Plaza's house, Velez and the others observed their actions from the rooftop. Velez had a brief conversation over the portable radio with an unknown individual about the activity at the Plaza residence. Immediately following that conversation, Velez instructed his people to fire at the Plaza family. At least three gang members immediately opened fire discharging several rounds of ammunition for a duration of approximately twenty seconds.

"As a result of the gunfire, Ana Plaza was struck by a bullet in her hip and Melissa was struck by a bullet in her arm. As both women began screaming, Obdulio ran into the house and phoned the police and an ambulance. Meanwhile, the shooters fled from the roof of the building into a vacant apartment, stuffed their weapons into a duffel bag and ran from the area.

"Approximately ten days later, the police arrested the defendant and several other members of the Latin Kings. In an oral statement to Detectives Robert Henderson and Mark Deal of the Waterbury police department, the defendant admitted that he was a member of the Latin Kings and that he held the rank of regional commander at the time of the shooting. Although the defendant denied any personal involvement in the shooting, he informed the police that several members of a gang called the 'Nietas,' who were allied with his gang, were responsible for the shooting. The defendant stated that one of the shooters was called 'Cano,' and that a Latin King called 'Rambo' had helped with the disposal of the weapons used in the shooting." State v. Torres, supra, 41 Conn.App. at 496-97, 676 A.2d 871.

The Supreme Court decision sets forth further facts that the jury reasonably could have found. "As a result of his investigation, Henderson learned that members of the Latin Kings had occupied various positions throughout Waterbury's south end on the evening of the shooting in order to implement the gang's plan to kill a Los Solidos gang member. Communication among the various locations was maintained through a CB channel on walkie-talkies, some of which Henderson subsequently retrieved. According to Martinez, [the state's key witness], the four other members of the Latin Kings assigned to the rooftop of the building on East Clay Street with Martinez were heavily armed with shotguns, handguns and automatic weapons. Martinez further testified that, while acting as a rooftop lookout, he had heard the defendant's voice, among others, broadcast over Velez' walkie-talkie. At approximately midnight, Velez, immediately after speaking with an unidentified person over his walkie-talkie, gave the order to fire at the victims.

"Martinez also testified that the defendant was located at 'sector one' at the time Martinez heard his voice over Velez' walkie-talkie, and that 'sector one' was Morales' Cafe in Waterbury, one of the locations where members of the Latin Kings had been stationed in connection with the implementation of the plan. Martinez further indicated that, after the emergency meeting at which the illegal scheme was approved, members of the Latin Kings who had attended that meeting reviewed the plan with those gang members who, like Martinez, already had taken their positions and, consequently, were not present at the meeting.

"In his interview with Henderson after the shooting, the defendant acknowledged that he was the regional commander of the Waterbury Latin Kings, and that he previously had served as the gang's president and philosopher. On the basis of his conversation with the defendant, Henderson concluded that, although he was reluctant to implicate himself in the conspiracy, the defendant had demonstrated 'a lot of knowledge' regarding the shooting and had revealed information concerning the crime that was not available to the general public at the time." State v. Torres, supra, 242 Conn. at 492-93, 698 A.2d 898.

On the prosecutor's direct examination of Martinez, the defendant twice objected to questions regarding the defendant's membership in the Latin Kings, and the trial judge sustained both objections for lack of relevance. The prosecution then made an offer of proof after the jury was excused establishing, to the trial court's satisfaction, the relevance of the inquiry. ⁴ On direct examination, Martinez testified that the defendant was the "original commander" of the Latin Kings and that Martinez heard the defendant's voice on the walkie-talkie before the shootings occurred. The next witness, Henderson, also testified that the defendant was the regional commander of the Latin Kings.

The defendant claims that the trial court's admission of evidence relating to his gang membership and leadership positions violated the rules of evidence and the Connecticut and United States constitutions. The defendant first argues that the prejudicial effect of that evidence outweighed its probative value. The defendant next claims that the trial court's improper admission of the evidence violated his federal and state constitutional right to freedom of association. We address these claims in turn.

"Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable.... A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence.... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative...." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Cosby, 44 Conn.App. 26, 31-32, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997).

"Probative evidence, although in some respects prejudicial, is admissible if the trial court, in the exercise of its...