State v. Zapata, (AC 30426) (Conn. App. 3/9/2010)

• Decision Date: 09 March 2010
• Docket Number: (AC 30426).
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT, <I>v.</I> MIGUEL ZAPATA.

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STATE OF CONNECTICUT,v.

MIGUEL ZAPATA.

(AC 30426).

Appellate Court of Connecticut.

Argued September 11, 2009.

Officially released March 9, 2010.

Appeal from Superior Court, judicial district of Fairfield, Comerford, J. [motion for protective order]; Hauser, J. [judgment].

Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

C. Robert Satti, Jr., supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Jonathan C. Benedict, former state's attorney, for the appellee (state).

DiPentima, Lavine and Freedman, Js.

Opinion

LAVINE, J.

This case concerns the right of a defendant to be present during an in-chambers hearing concerning possible juror exposure to information about the case other than evidence presented in the courtroom. The issues presented are whether the in-chambers hearing was a critical stage of the proceedings and, if so, whether the defendant's absence was structural error requiring reversal of his conviction. We conclude that the defendant, Miguel Zapata, was denied his state and federal constitutional rights to be present when the court excluded him from the in-chambers hearing. We conclude, however, that the court's error did not constitute structural error and was harmless beyond a reasonable doubt. We, therefore, affirm the judgment of the trial court.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder with a firearm in violation of General Statutes §§ 53a-48 and 53-202k, murder with a firearm in violation of General Statutes §§ 53a-54a (a) and 53-202k, and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the court, Hauser, J., (1) denied him his state and federal constitutional rights to (a) due process, (b) counsel and (c) the presumption of innocence by excluding him from an in-chambers inquiry into possible juror partiality; (2) erred by retaining a certain juror (a) whose sibling's telephone number appeared several days before the murder on a cellular telephone police recovered at the scene of the victim's death, (b) who allegedly violated the court's instructions by discussing the case with the sibling and (c) who allegedly was alerted by the court's inquiry to prejudicial information about the defendant; (3) erred by failing to conduct a more thorough inquiry into the juror's discussion with the sibling; and (4) erroneously charged the jury as to reasonable doubt.

The jury reasonably could have found the following facts. On April 26, 2006, the defendant was arrested in Tennessee in connection with the 2001 murder of the victim, Zoltan Kiss. The victim was found dead in the early morning hours of September 28, 2001, when police were summoned to the vicinity of 1185 Pembroke Street (Pembroke Street) in Bridgeport to respond to reports of gunfire. At the time, Pembroke Street was known as a place for illegal drug transactions. According to the victim's girlfriend, Jennifer Wong, the victim went to Pembroke Street to purchase ecstasy. When the police arrived, they found the victim's body in a motor vehicle that also was riddled with bullet holes. The police recovered eighteen shell casings, the victim's wallet and a cellular telephone.¹

While surveying the scene, Thomas Lula, then a sergeant assigned to the Bridgeport police detective bureau, saw a blue jacket on the ground next to a large rock and observed a newspaper dated September 28, 2001, on the stoop of 1185 Pembroke Street.² Detective Vincent Ingrassia found an operator's license belonging to Jose Arsenega in the blue jacket. Lula knew that Arsenega was dead and that Luisa Bermudez had been his girlfriend.³ The police proceeded three blocks away to 39 Caroline Street, Bridgeport, and spoke to Sylvia Bermudez, who told them that Luisa Bermudez, her daughter, lived around the corner at 639 Barnum Avenue (Barnum Avenue residence). The police then went to the Barnum Avenue residence, the home of Marlene Bermudez, Luisa Bermudez' sister.

The police entered the Barnum Avenue residence calling for Luisa Bermudez and walked up to the attic where they heard dogs barking. There the police found Luisa Bermudez, Orema Taft, Maritza Gutierrez and the defendant in a makeshift bedroom. Luisa Bermudez answered police questions and accompanied them to the station. Later that day, after securing a search warrant, Lula, Ingrassia and Detective Louis Sam Cortello went to the Barnum Avenue residence where they found a holster for a large caliber weapon⁴ and the victim's jewelry.

The crime went unsolved despite the state's posting a $50,000 reward eight months after the murder and the police periodically canvassing people on Pembroke Street. Some years later, the victim's mother added to the amount of the reward and went door-to-door seeking information, an event reported in the press and on television. Consequently, the reward was known throughout the east side of Bridgeport.

At the time of the murder, Catherine Perez and her three children lived in an apartment at 1185 Pembroke Street. She knew the defendant, having dated him on and off for three years, and knew that he always carried a .357 caliber pistol. Although the defendant also dated Erica Nunez and Gutierrez while he was seeing Perez, Perez denied that the defendant's multiple relationships upset her because she was not serious about her relationship with him. Prior to the murder, Perez saw the defendant and Taft almost every day, and she saw Luisa Bermudez and Gutierrez four or five times a week. She permitted the defendant, Taft, Guiterrez and Luisa Bermudez to keep drugs in her apartment. A staircase at the rear of her apartment led down to an area from which drugs were sold. Perez herself had been arrested for possession of narcotics with intent to sell and received a sentence of probation. Although the police spoke to her on September 28, 2001, to inquire as to whether she knew anything about the shooting, she said "no" because she was afraid of the defendant and his family. Years later, however, Perez contacted the police and gave a statement to Detective Heitor Teixeira. She also testified at trial as follows.

On September 28, 2001, Perez was getting out of the shower when she heard gunshots and went to her front window overlooking Pembroke Street. She saw the defendant, Luisa Bermudez, Taft and Gutierrez standing around the victim's car. The defendant was shooting a gun. When the shooting stopped, the people standing around the car ran away. As Luisa Bermudez ran, she was looking around Pembroke Street. Perez moved away from her window, as she did not want to be seen. The next day, Sasha Bermudez, a sister of Luisa Bermudez, as well as a cousin of the defendant, came to see Perez. Perez told Sasha Bermudez that she had not seen the shooting. Thereafter, Perez did not see the defendant for more than two weeks. Perez also did not see Gutierrez, Taft and Luisa Bermudez for months after the shooting.

When the defendant eventually visited Perez, he asked her if she had seen the shooting. She told him that she had not. The defendant responded, "don't lie to me, don't lie to me because my family could kill you." Perez was afraid for herself and her children. Perez moved from the apartment at 1185 Pembroke Street to one nearby and later to one in another part of Bridgeport. The defendant, however, visited her at the more distant apartment, where the two argued. Perez claimed that the defendant tried to kill her. She eventually moved out of Bridgeport. Although Perez knew of the reward offered for information leading to the conviction of the victim's murderer, she claimed to have no interest in it.

Marie Vargas, a convicted felon, had grown up on the east side of Bridgeport and knew the defendant, Luisa Bermudez and their family and friends. According to Vargas, the defendant, Luisa Bermudez and their friends routinely sold a variety of drugs from an area behind a tall, locked gate on Pembroke Street, and they routinely carried weapons. In the early hours of September 28, 2001, Vargas purchased marijuana from a group of people behind the gate, including the defendant, Michael Cooney, Taft and Luisa Bermudez, who was wearing a blue jacket. As Vargas was exiting the gate after making her purchase, she saw the victim, who was wearing a lot of jewelry,⁵ get out of a motor vehicle and walk toward the gate. While Vargas was walking toward the intersection of Jane Street and Shelton Street, she heard a commotion behind her. She also heard Luisa Bermudez, who was leaning out a third floor window, shout: "Oh, yeah, we gonna get this right now, we all right, we got it, we got it."

Vargas was on the witness stand when the court excused the jury to hear the arguments of counsel. As the jury was leaving the courtroom, the defendant gestured toward Vargas. Vargas testified to the incident outside the presence of the jury. Vargas stated that the defendant raised his middle finger to her and said she was "a dead bitch."

Cooney, a convicted felon and a cousin of both the defendant and Luisa Bermudez, lived in an apartment overlooking Pembroke Street. On the night in question, he was awakened by the sound of gunfire and looked out his front window. He saw two people firing handguns at a Honda motor vehicle at the corner of Jane Street and Pembroke Street. When the shooting stopped, the men got into a white car and drove away. Cooney told the police who came to investigate that the perpetrators were two dark skinned men, probably Hispanics with "Afros" or something on their heads. At trial, however, Cooney testified that the perpetrators were black and that the defendant was not "dark skinned."

After the defendant had been arrested, Jermaine O'Grinc, an individual charged with numerous crimes, gave a statement to the police, hoping that, in return, he would receive favorable...