State v. Rivera

602 A.2d 571, 221 Conn. 58, 1992 Conn. LEXIS 10
CourtSupreme Court of Connecticut
DecidedJanuary 28, 1992
Docket14080
StatusPublished
Cited by46 cases

This text of 602 A.2d 571 (State v. Rivera) 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. Rivera, 602 A.2d 571, 221 Conn. 58, 1992 Conn. LEXIS 10 (Colo. 1992).

Opinion

Covello, J.

This is the defendant’s appeal from his conviction of murder in violation of General Statutes § 53a-54a.1 The issues on appeal are whether the trial court improperly: (1) admitted the hearsay testimony of two witnesses who were unavailable to testify; (2) excluded an alleged declaration against penal interest for lack of trustworthiness; (3) admitted evidence of the defendant’s prior felony conviction for possession of narcotics; and (4) failed to instruct the jury that, if it were to reject the defendant’s claim of self-defense, it must be unanimous in its decision as to why it was rejecting that defense. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In the early evening of August 9,1988, the victim, Luis Villafane, and a male companion approached the defendant, Jose Rivera, and his brothers, Heriberto [60]*60Santiago (Heriberto), Luis Santiago (Luis), and Ernesto Santiago (Ernesto), who were all sitting on the steps outside of their home at 1064 Broad Street in Hartford. Villafane, who was holding a metal pipe, accused Ernesto of cheating him in a drug deal earlier that day by selling him bags of sugar instead of drugs. As tensions mounted, Luis went into the house and came back with a sawed-off rifle that he gave to the defendant. The defendant and his brothers then chased the victim and his friend across the street to an alley. When the victim attempted to strike the defendant with the metal pipe, the defendant shot and killed him. The defendant and the witnesses who had viewed the incident testified that the defendant, and no one else, had fired the rifle four or five times and had shot the victim. The autopsy report indicated that the victim had been shot only once. On October 19,1989, the jury rendered a verdict of guilty of murder and not guilty of conspiracy to commit murder. The trial court sentenced the defendant to a term of fifty years imprisonment.

I

The defendant first claims that the admission at trial of the probable cause testimony of two state’s witnesses, Maria Colon and Heriberto Santiago, violated his constitutional rights to present a defense, confront and cross-examine witnesses and to due process of law. The defendant claims that the trial court improperly determined that: (1) the state had demonstrated the witnesses’ unavailability to testify at trial; and (2) their testimony was reliable. State v. Outlaw, 216 Conn. 492, 505, 582 A.2d 751 (1990).

At the probable cause hearing, Colon testified that, on the evening of the shooting, she had been sitting outside when she heard some yelling. She then saw the defendant, who was carrying a rifle, and “the boys” chase the victim, who was holding a “stick or some[61]*61thing like that,” across the street, at which point, the defendant shot the victim. Heriberto testified about the initial confrontation among the victim, the defendant and his brothers, and the subsequent chase. He also testified that while the defendant was holding the victim’s companion at gunpoint, the victim had approached the defendant from behind and hit him in the arm with a pipe. It was only then, Heriberto testified, that the defendant shot the victim. Concluding that the two prong test for admissibility of prior testimony had been met, the court allowed a transcript of Maria Colon’s and Heriberto Santiago’s probable cause hearing testimony to be read to the jury.

“[T]his court and the United States Supreme Court have declared that prior testimony of an unavailable witness is admissible in a subsequent trial as an exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 67, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); California v. Green, 399 U.S. 149, 165, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); State v. Parker, 161 Conn. 500, 503-504,289 A.2d 894 (1971).” (Emphasis added.) State v. Torres, 210 Conn. 631, 645-46, 556 A.2d 1013 (1989). The two part test for the admissibility of such testimony is as follows: “ ‘First . . . [t]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.’ [Ohio v. Roberts, supra,] 65. Even after the declarant is satisfactorily shown to be unavailable, ‘his statement is admissible only if it bears adequate “indicia of reliability” ’; id., 66; which serve to ‘afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’ California v. Green, [supra, 160-61].” State v. Outlaw, 505.

In State v. Frye, 182 Conn. 476, 480-81, 438 A.2d 735 (1980), we identified five of the most common situations in which the declarant will be deemed unavail[62]*62able for the purposes of certain hearsay exceptions.2 The situation relevant here states: the declarant is “ ‘absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means. (Emphasis added.) Id., 481. “In interpreting ‘reasonable means,’ we have held that the proponent must exercise due diligence and, at a minimum, make a good faith effort to procure the declarant’s attendance. State v. Aillon, 202 Conn. 385, 391, 392, 521 A.2d 555 (1987), citing State v. Weinrib, 140 Conn. 247, 252, 99 A.2d 145 (1953), and State v. DeFreitas, [179 Conn. 431, 445, 426 A.2d 799 (1980)]. The trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. ‘Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters.' Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987).” State v. Rivera, 220 Conn. 408, 411-12, 599 A.2d 1060 (1991).

At a hearing held the week before trial commenced, the state called Steven Oborski, an inspector for the Hartford state’s attorney’s office, to prove that Maria Colon and Heriberto Santiago were unavailable. Oborski testified as to his continuing, but unsuccessful, efforts to locate both witnesses. Oborski knew that Colon had resided at 1064 Broad Street in Hartford because he had served her with a subpoena for her [63]*63attendance at the September 30,1988 probable cause hearing. After that hearing, Oborski gave Colon his “card and other information” and asked her to “stay in touch” if there was any change in her address or whereabouts. In July, 1989, he worked on the case and testified that, around that time, he heard an “unsubstantiated rumor” that Colon had left the area. Oborski testified that he prepared a subpoena to serve on Colon but when he went to her old address, “close to jury selection time,” the building superintendent informed him that she had moved to Puerto Rico with her children sometime in 1988.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Mekoshvili
344 Conn. 673 (Supreme Court of Connecticut, 2022)
State v. Lebrick
334 Conn. 492 (Supreme Court of Connecticut, 2020)
State v. Mekoshvili
195 Conn. App. 154 (Connecticut Appellate Court, 2020)
State v. Patel
Connecticut Appellate Court, 2019
State v. Lebrick
178 A.3d 1064 (Connecticut Appellate Court, 2018)
Maio v. City of New Haven
167 A.3d 338 (Supreme Court of Connecticut, 2017)
State v. Gupta
998 A.2d 1085 (Supreme Court of Connecticut, 2010)
Skakel v. State
991 A.2d 414 (Supreme Court of Connecticut, 2010)
State v. Velez
966 A.2d 743 (Connecticut Appellate Court, 2009)
State v. Wright
943 A.2d 1159 (Connecticut Appellate Court, 2008)
State v. Phillips
927 A.2d 931 (Connecticut Appellate Court, 2007)
State v. Muhammad
881 A.2d 468 (Connecticut Appellate Court, 2005)
State v. Erhardt
879 A.2d 561 (Connecticut Appellate Court, 2005)
Label Systems Corp. v. Samad Aghamohammadi
852 A.2d 703 (Supreme Court of Connecticut, 2004)
State v. Commins
850 A.2d 1074 (Connecticut Appellate Court, 2004)
State v. Jefferson
786 A.2d 1189 (Connecticut Appellate Court, 2001)
State v. Miller
742 A.2d 402 (Connecticut Appellate Court, 1999)
State v. Schiappa
728 A.2d 466 (Supreme Court of Connecticut, 1999)
State v. Firth
708 A.2d 526 (Supreme Court of Rhode Island, 1998)
State v. Jones
700 A.2d 710 (Connecticut Appellate Court, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
602 A.2d 571, 221 Conn. 58, 1992 Conn. LEXIS 10, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rivera-conn-1992.