State v. Vega

691 A.2d 22, 44 Conn. App. 499, 1997 Conn. App. LEXIS 100
CourtConnecticut Appellate Court
DecidedMarch 18, 1997
Docket14797
StatusPublished
Cited by6 cases

This text of 691 A.2d 22 (State v. Vega) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Vega, 691 A.2d 22, 44 Conn. App. 499, 1997 Conn. App. LEXIS 100 (Colo. Ct. App. 1997).

Opinion

LAVERY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a)1 and 53a-59 (a) (l),2 and possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a (a).3 The jury could not reach a unanimous verdict on the charge of attempted assault in violation of General Statutes §§ 53a-8 and 53a-49 (a) (2),4 and the [501]*501trial court declared a mistrial on that charge. On appeal, the defendant asserts that the trial court improperly (1) refused to give a missing witness instruction, (2) admitted hearsay testimony, and (3) permitted correctional officers to testify as expert witnesses. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. James Diaz, the victim, was incarcerated from January to March, 1991, at the Community Correctional Center in Bridgeport for a robbery that was committed in Norwalk. When the victim was arrested for the robbery, he gave the Norwalk police a statement implicating two other men, Ramito Tosado and Angel Lopez, in the crime. While at the Bridgeport jail, the victim was threatened by Tosado, who was a fellow inmate, and by Tosado’s friend Carlos Feliciano, who was also an inmate. While at the Bridgeport jail, the victim lear ned that Tosado was a member of a gang. Tosado informed the victim that the gang had put out a contract on the victim’s life.

The victim informed the correction officials about the contract and was promptly transferred to a correctional facility at Enfield, and then to the Cheshire Correctional Center (Cheshire). The day after the victim’s arrival at Cheshire, he was eating supper in the cafeteria with a friend, Orlando Jiminez. Carlos Feliciano, who had also been transferred to Cheshire, came into the cafeteria and stared at the victim. Feliciano began gesturing to others in the cafeteria in a “yes” fashion. Without finishing their meals, the victim and Jiminez exited the cafeteria. The victim and Jiminez later returned to the cafeteria to obtain a towel. While in a hallway, the victim was grabbed from behind and cut with a razor on the right side of his neck. Jiminez, who was a few steps ahead of the defendant, looked back and saw the defendant running and making a hand movement across [502]*502the victim’s neck. Jiminez could also see that the defendant had a blade in his hand.

While on furlough, the victim received a telephone call from his brother, Mark Diaz, who was incarcerated at the Correctional Institution at Somers. During this telephone call, the defendant, who was also at the prison, spoke with the victim. The defendant told the victim that he had to cut him because gang members had threatened to harm the defendant if he did not attack the victim.

I

The defendant’s first claim is that the trial court improperly denied the defendant’s request for a Secondino instruction. The defendant claims that he was entitled to the missing witness instruction because the state failed to call the victim’s brother, Mark Diaz, as a witness to corroborate the testimony about the telephone conversation between the victim and the defendant. “The failure to produce a witness for trial who is available and whom aparty would naturally be expected to call warrants an adverse inference instruction against that party who could be expected to call that witness. Secondino v. New Haven Gas Co., [147 Conn. 672, 674-75, 165 A.2d 598 (1960)]. State v. Santagelo, [205 Conn. 578, 596, 534 A.2d 1175 (1987)]; see also State v. Amarillo, 198 Conn. 285, 307, 503 A.2d 146 (1986). An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is available and whether, under the facts of this case, the witness is one whom the state would naturally be expected to produce. . . . State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). This court has consistently held that [w]hether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier. Perl v. Case, [503]*5033 Conn. App. 111, 115, 485 A.2d 1331 [cert. denied, 195 Conn. 803, 491 A.2d 1103 (1985)]. This court cannot reverse or modify the trial court’s determinations of fact unless they are clearly erroneous. Buddenhagen v. Luque, 10 Conn. App. 41, 44, 521 A.2d 221 (1987). State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989).” (Internal quotation marks omitted.) State v. Jurgensen, 42 Conn. App. 751, 758, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996).

The defendant did not carry the burden of putting forth sufficient evidence demonstrating that Mark Diaz vstas available to testify during trial. The victim testified that he would not tell the state’s attorney his brother’s location because he was concerned for his brother’s safely because of the gang. In addition, even if Mark Diaz’ location were known to the state, he would most likely have resisted coming to court because he had received threatening telephone calls about the trial.

When a statute does not define a phrase, we look elsewhere for the peculiar and appropriate meaning of the phrase. We may look to the meaning given the phrase in unrelated statutes and consider that where the legislature uses the same phrase it intends the same meaning. See Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). Therefore, we will also look to Practice Book § 956C, which sets forth excluded time periods with regard to a speedy trial and addresses unavailability. Practice Book § 956C provides that: “a defendant or any essential witness shall be considered unavailable whenever such person’s whereabouts are known but his or her presence for trial cannot be obtained by due diligence or he or she resists appearing at or being returned for trial.” Moreover, “[bjefore a negative inference can be drawn from a party’s failure to produce a witness, it must be shown that the party was able to procure the witness’ physical presence in court.” State v. Wood, supra, 208 Conn. 140.

[504]*504Because the defendant failed to demonstrate Mark Diaz’ availability, we do not have to determine whether he was in fact a witness whom the state would naturally have been expected to produce. The trial court’s finding of unavailability was not clearly erroneous, and its decision not to deliver the Secondino

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Bluebook (online)
691 A.2d 22, 44 Conn. App. 499, 1997 Conn. App. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vega-connappct-1997.