State v. Lopez

757 A.2d 542, 254 Conn. 309, 2000 Conn. LEXIS 278
CourtSupreme Court of Connecticut
DecidedAugust 15, 2000
DocketSC 16183
StatusPublished
Cited by18 cases

This text of 757 A.2d 542 (State v. Lopez) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lopez, 757 A.2d 542, 254 Conn. 309, 2000 Conn. LEXIS 278 (Colo. 2000).

Opinion

Opinion

VERTEFEUILLE, J.

The defendant, Heriberto Lopez, appeals from a judgment of conviction for the crimes of murder in violation of General Statutes § 53a-54a1 conspiracy to commit murder in violation of General Statutes §§ 53a-481 2 and 53a-54a, and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.3 On appeal, the defendant claims that the [311]*311trial court improperly found that the confession of a third party declarant was untrustworthy and therefore inadmissible. We conclude that the trial court did not abuse its discretion in excluding the confession, and we therefore affirm the judgment of the Appellate Court.

This case returns to us for a second time. After a jury trial, the defendant was found guilty and sentenced to forty-five years imprisonment. During the trial, the court refused to admit the confession of a third party declarant, Lenise Nestir, finding that she was available to testify and that her hearsay statement was therefore inadmissible. The defendant appealed from his conviction to this court, and we transferred the appeal to the Appellate Court, which affirmed the judgment of conviction. State v. Lopez, 38 Conn. App. 434, 447, 662 A.2d 792 (1995). After granting the defendant’s certification to appeal; State v. Lopez, 235 Conn. 919, 665 A.2d 907 (1995); we determined that the trial court had abused its discretion in finding that Nestir was available to testify. We therefore remanded the case to the trial court to determine whether the alleged third party confession was sufficiently trustworthy to have been admitted into evidence. State v. Lopez, 239 Conn. 56, 57, 681 A.2d 950 (1996).

On remand, the trial court found that the alleged confession was not sufficiently trustworthy to be admitted into evidence.4 The Appellate Court affirmed the [312]*312judgment of the trial court; State v. Lopez, 54 Conn. App. 168, 177, 736 A.2d 157 (1999); and the defendant successfully petitioned this court for certification to appeal.* ***5 State v. Lopez, 250 Conn. 924, 738 A.2d 661 (1999). This appeal followed. We now affirm the judgment of the Appellate Court.

As indicated in the prior appeal to this court, the jury reasonably could have found the following facts. During the early evening of May 8, 1991, the victim, Elvis Cmkovic, and his brother, Paul Cmkovic, were playing basketball at the comer of Winthrop and Davenport Avenues in New Haven, when two cars approached. State v. Lopez, supra, 239 Conn. 59. The defendant sat in the front passenger seat of one of the cars, which was brown, armed with a .38 caliber revolver. Jorge Orta drove the other car, a gray Mazda, in which David Morales was a passenger. Id. The defendant and someone in the gray car fired shots and Elvis was shot in the back as he and his brother attempted to flee. Id., 59-60. Elvis later died as a result of his wounds. Id., 60.

Prior to the shooting, Nestir, one of the state’s key witnesses at trial, was in the Liberty Street area of New Haven, where she saw Alex Romero driving a brown vehicle. Romero claimed to have a gun in his possession and asked whether anyone wanted to accompany him [313]*313to Davenport Avenue. Id. Nestir explained that there was tension between a group of youths in the Liberty Street area, known as the “Liberty Street Posse,” and another group in the Davenport Avenue area. At trial, Nestir testified that Romero and the defendant were members of the Liberty Street Posse. The defendant accepted Romero’s invitation to accompany him and the two men drove away. While Nestir had declined Romero’s invitation to accompany them, she walked to within one block of the shooting to watch. Id., 60-61.

From the intersection of Winthrop and Davenport Avenues, Nestir observed Romero’s brown car approach, although she was unable to identify its occupants. Id., 61. Nestir saw shots fired from the vehicle. She denied seeing a gray car at the scene, although the state introduced evidence that shots were also fired from a gray car. Id.

After the shooting, Nestir saw the brown car, driven by Romero with the defendant and another male named Andrew as passengers, approach a nearby dumpster. Nestir observed Andrew empty shells from a gun into the dumpster. Id. Later that same day, Romero gave Nestir a gun and, according to Nestir’s testimony, asked her to “get rid of it . . . because it was hot.” Nestir did not dispose of the gun but, instead, kept the gun, hoping to exchange it for a car. Id. Later, the New Haven police, based upon a tip from an informant, seized the gun from Nestir but never charged her with an offense. Id.

During his case-in-chief, the defendant sought to introduce evidence that Nestir had confessed to committing the murder. Id., 62. The defendant called Robin Shade to make an offer of proof concerning self-incriminating statements that Nestir allegedly had made to [314]*314Shade. In these statements, Nestir claimed that she had shot the victim.6 Id.

In this appeal, the defendant contends that the trial court abused its discretion in finding that Nestir’s statement was untrustworthy despite the timing of the declaration and in light of the person to whom it was made, and the allegedly ample evidence that corroborated the statement. We disagree.

At the outset, we note that a trial court’s ruling on the admissibility of evidence is entitled to great deference. See State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991). “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citations omitted; internal quotation [315]*315marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). “This deferential standard is [generally] applicable to evidentiary questions involving hearsay . . . .” (Citation omitted.) Id., 801-802.

We recognized previously that “[t]he law regarding the admissibility of third party statements against interest is well settled. A trustworthy third party statement exculpatory of the accused and against the penal interest of the declarant is admissible at the trial of the accused if the declarant is unavailable. . . . The determination of whether such a statement is sufficiently trustworthy to be admitted into evidence at trial lies within the sound discretion of the trial court.

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Cite This Page — Counsel Stack

Bluebook (online)
757 A.2d 542, 254 Conn. 309, 2000 Conn. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopez-conn-2000.