State v. Santana ( 2014 )

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STATE OF CONNECTICUT v. LUIS
ANTONIO SANTANA
(SC 18713)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued February 20—officially released September 9, 2014
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Michael Dear-
ington, state’s attorney, and Robert O’Brien, former
supervisory assistant state’s attorney, for the appellee
(state).
Opinion
ESPINOSA, J. The dispositive issue in this appeal1 is
whether the defendant, Luis Antonio Santana, pre-
served his claim that statements contained in a search
warrant affidavit should have been admitted into evi-
dence under the hearsay exception for a statement by
a party opponent pursuant to § 8-3 (1) (B) of the Con-
necticut Code of Evidence.2 The defendant was charged
with one count of murder in violation of General Stat-
utes § 53a-54a, one count of conspiracy to commit mur-
der in violation of General Statutes §§ 53a-48 and 53a-
54a, and one count of carrying a pistol without a permit
in violation of General Statutes § 29-35 for his role in
the shooting death of the victim, Aaron McCrea. At trial,
the defendant sought to introduce witness statements
contained in a search warrant affidavit that he claimed
implicated individuals other than himself in the shoot-
ing. The state objected on the ground that the state-
ments were hearsay, and the defendant responded that
the statements were not inadmissible hearsay. The trial
court sustained the objection, and the defendant subse-
quently was convicted of all charges.
On appeal, the defendant claims that, although he
did not reference any hearsay exception, he functionally
preserved the claim. Moreover, the defendant argues
that the trial court violated his constitutional right to
present a defense of third party culpability when it
precluded him from questioning a police officer about
the witness statements. The state counters that the
defendant failed to properly preserve this claim before
the trial court and that the claim is not of a constitu-
tional nature. The state contends, therefore, that this
court should not review the defendant’s claim. We agree
with the state that the defendant failed to preserve his
claim, functionally or otherwise, and that it is not of
a constitutional nature such that review is warranted
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989). Thus, we decline to review the
claim, and, accordingly, affirm the judgment of the
trial court.
The record reveals the following relevant facts, which
the jury reasonably could have found, and procedural
history. At approximately 4 p.m. on September 17, 2006,
the defendant and Geraldo Rosado shot the victim in
a grassy area between Portsea Street and Loop Road
in New Haven, and then ran away. When the police
arrived shortly thereafter, the victim was nonrespon-
sive. He died from multiple gunshot wounds.
After the shooting, the defendant and Rosado went
to the home of Juan Nunez. Nunez spoke to the men,
and after they left, took a blue nylon bag containing a
nine millimeter pistol and a .38 caliber revolver into his
bedroom where his girlfriend, Ligny Rivera, was resting.
Nunez wiped the handguns with an orange shirt, placed
them back in the nylon bag along with the shirt, and
put the bag on the side of his bed.
Two days later, the police went to Nunez’ home to
execute a search warrant. While the police were knock-
ing on the door, Nunez ran out of his bedroom, down
the back stairs, and returned shortly thereafter. Nunez’
mother then allowed the police to enter. On the back
stairwell of the basement entryway, the police found a
blue nylon bag that contained an orange shirt wrapped
around two handguns. A forensic examination con-
cluded that the guns found in the nylon bag were a nine
millimeter pistol and a .38 caliber revolver, and that
they had been used in the shooting of the victim. A state
forensic science examiner testified that DNA testing of
the handguns revealed that the defendant could not be
eliminated as a minor contributor to the DNA sample
from the .38 caliber revolver, but could be eliminated
as a contributor to the DNA sample from the nine milli-
meter pistol.
The defendant subsequently was arrested for murder,
conspiracy to commit murder and carrying a pistol with-
out a permit. The case proceeded to trial, and during
its case-in-chief the state called Michael Hunter, who
had been a detective with the New Haven Police Depart-
ment at the time of the events in the present case.
Hunter testified about the execution of the search war-
rant for Nunez’ home and the subsequent police investi-
gation. On cross-examination, when the defendant
began questioning Hunter about certain statements that
were contained in the search warrant affidavit, the state
objected on the ground of hearsay. The court asked the
defendant for the purpose for which the statements
were being offered. The defendant gave several differ-
ent bases, including (1) to show why the police went
to Nunez’ home to search for weapons, (2) to satisfy
the jury’s right to know what information was contained
in the search warrant application such that a Superior
Court judge would sign the search warrant, (3) to dem-
onstrate the officer’s understanding of why he was at
Nunez’ home, and (4) to satisfy the jury’s right to know
that two witnesses had implicated two other suspects,
Nunez and Jose Montero. The court then sustained the
state’s objection, concluding that the defendant was
attempting to have the statements admitted for the truth
of the matters asserted therein, and, therefore, that the
statements constituted inadmissible hearsay. After the
court sustained the objection, the defendant did not
ask Hunter any further questions. The state rested and
the defendant did not present any evidence. The jury
found the defendant guilty of murder, conspiracy to
commit murder, and carrying a pistol without a permit.
This appeal followed.
On appeal, the defendant claims that he functionally
preserved his claim that the statements contained in
the search warrant affidavit should have been admitted
as adoptive admissions of a party opponent when he
claimed at trial that the statements were not inadmissi-
ble hearsay. In the alternative, the defendant argues that
if this court concludes that the claim is unpreserved,
we nevertheless should review it pursuant to State v.
Golding, supra, 213 Conn. 239–40. We reject both of
the defendant’s arguments, and address each in turn.
I
We first address the defendant’s claim that he pre-
served his claim that the witness statements in the
search warrant affidavit were adoptive admissions by
a party opponent. After reviewing our functional preser-
vation jurisprudence, we conclude that the defendant
did not preserve his claim as he neither claimed the
adoptive admission by a party opponent exception nor
functionally raised the exception to the trial court.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial.’’ (Internal quotation marks omitted.)
State v. Jorge P., 308 Conn. 740, 753, 66 A.3d 869 (2013).
‘‘[A] party cannot present a case to the trial court on
one theory and then seek appellate relief on a different
one . . . . For this court to . . . consider [a] claim on
the basis of a specific legal ground not raised during
trial would amount to trial by ambuscade, unfair both
to the [court] and to the opposing party.’’ (Internal quo-
tation marks omitted.) Council v. Commissioner of
Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008).
Nevertheless, this court has expressed a willingness
to review claims that a party did not explicitly raise to
the trial court if it is clear from the record that the
substance of the claim was raised. In Fadner v. Com-
missioner of Revenue Services, 281 Conn. 719, 729 n.12,
917 A.2d 540 (2007), we addressed the plaintiffs’ claim
regarding equitable recoupment, even though they had
not specifically raised the issue before the trial court
or in the tax appeal proceedings, after determining that
they had consistently requested equitable relief and had
made continued references to an opinion of this court
that involved the concept of recoupment. In Salmon v.
Dept. of Public Health & Addiction Services, 259 Conn.
288, 305, 788 A.2d 1199 (2002), we reviewed the plain-
tiff’s statutory interpretation claim involving the term
‘‘resident abuse,’’ despite the fact that she had not
explicitly framed the issue that way in the administra-
tive and trial court proceedings, because ‘‘the basis of
her claim at both the [administrative] and trial court
levels was that, in order to constitute resident abuse,
there had to be some intentional or wilful conduct by
the plaintiff-caregiver toward the victim that resulted
in harm.’’ In State v. Munoz, 233 Conn. 106, 119 n.7, 659
A.2d 683 (1995), this court considered the defendant’s
challenge to a jury instruction on proximate cause even
though the grounds for reversal raised in his brief were
different from those raised during oral argument. The
court in Munoz concluded that the defendant’s objec-
tion to the jury instruction at the trial court had refer-
enced both grounds, that the two concepts underlying
the grounds were closely related and that the state had
an opportunity to address the ground that the defendant
had raised at oral argument. Id.
These cases demonstrate that although a party need
not use the term of art applicable to the claim, or cite
to a particular statutory provision or rule of practice
to functionally preserve a claim, he or she must have
argued the underlying principles or rules at the trial
court level in order to obtain appellate review. Thus,
in response to a hearsay objection, although a party
need not explicitly identify the hearsay exception that
would apply, he or she must at least reference the sub-
stance of the applicable exception in order to preserve
the claim. It would be unfair to the trial court and to
the opposing party to conclude that a party’s general
denial that a statement constitutes inadmissible hearsay
is sufficient to place a trial court on notice of any and
all hearsay exceptions that could be, but were not,
raised by a party in response to a hearsay objection.
In the present case, the defendant gave several rea-
sons, as previously noted, as to why the trial court
should have allowed Hunter to testify about the witness
statements in the search warrant affidavit. None of the
proffered reasons, however, included any reference,
direct or indirect, to any exception to the hearsay rule.
Not once did the defendant claim, as he does before
this court, that the police were a party opponent or
refer to any concept related to the police officers’ accep-
tance or approval of the statements. Although the defen-
dant did assert that the jury had a right to know what
information was contained in the search warrant affida-
vit, he never explained why the jury had a right to
know such information or how the jury’s right to know
implicated the hearsay rule. Neither the trial court nor
the state was apprised of any hearsay exception that
might apply to the proffered statements, even though
the trial court gave the defendant an opportunity to do
so. 3 Accordingly, the defendant’s claim is not preserved.
II
Having concluded that the defendant has failed to
preserve his claim, we must determine whether we nev-
ertheless can review his claim, pursuant to State v.
Golding, supra, 213 Conn. 239–40, that the trial court’s
preclusion of the witness’ statements from the search
warrant affidavit violated his constitutional right to pre-
sent a third party culpability defense. Our review of the
record reveals that the defendant has failed to satisfy
the second prong of Golding, that his claim is of a
constitutional magnitude alleging a violation of a funda-
mental right. Id., 239.
‘‘Under Golding, a defendant can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation clearly exists and clearly deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail. The appellate
tribunal is free, therefore, to respond to the defendant’s
claim by focusing on whichever condition is most rele-
vant in the particular circumstances.’’ (Internal quota-
tion marks omitted.) State v. Crespo, 303 Conn. 589,
606, 35 A.3d 243 (2012).
Moreover, ‘‘[t]he federal constitution require[s] that
criminal defendants be afforded a meaningful opportu-
nity to present a complete defense. . . . The sixth
amendment . . . [guarantees] the right to offer the tes-
timony of witnesses, and to compel their attendance,
if necessary, [and] is in plain terms the right to present
a defense, the right to present the defendant’s version
of the facts as well as the prosecution’s to the jury so
that it may decide where the truth lies. . . .
‘‘A defendant is, however, bound by the rules of evi-
dence in presenting a defense. . . . Although exclu-
sionary rules of evidence cannot be applied
mechanistically to deprive a defendant of his rights,
the constitution does not require that a defendant be
permitted to present every piece of evidence he
wishes.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) State v. Saunders, 267 Conn.
363, 382–83, 838 A.2d 186, cert. denied, 541 U.S. 1036,
124 S. Ct. 2113, 158 L. Ed. 2d 722 (2004). A defendant
may not successfully prevail on a claim of a violation
of his right to present a defense if he has failed to take
steps to exercise the right or if he adequately has been
permitted to present the defense by different means.
See State v. Tomas D., 296 Conn. 476, 498, 995 A.2d
583 (2010) (‘‘a defendant may not successfully establish
a violation of his [right] to present a defense . . . with-
out first taking reasonable steps to exercise [that
right]’’), overruled in part on other grounds by State v.
Payne, 303 Conn. 538, 564, 34 A.3d 370 (2012); State v.
Shabazz, 246 Conn. 746, 758 n.7, 719 A.2d 440 (1998)
(no deprivation of constitutional right to present
defense when ‘‘defendant was adequately permitted to
present his claim of self-defense by way of his own
testimony, by cross-examining the state’s witnesses,
and by the opportunity to present any other relevant
and admissible evidence bearing on that question’’),
cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed.
2d 111 (1999).
In the present case, although the defendant contends
that the trial court’s restriction on his ability to cross-
examine Hunter regarding the witness statements from
the search warrant affidavit had the effect of precluding
him from raising a third party culpability defense, he
has pointed to no evidence that this is the case. Instead
of attempting to establish a third party culpability
defense by cross-examining Hunter about the wit-
nesses’ hearsay statements, the defendant could have
pursued other avenues. Following the court’s ruling,
the defendant did not question Hunter regarding his
personal knowledge of the investigation of the other
two suspects, did not attempt to introduce any evidence
regarding the police investigation of the other suspects,
and failed to produce any evidence that the witnesses
who had made the statements were unavailable. In fact,
the state represented that it had disclosed the name of
one of the witnesses to the defendant. Moreover, the
defendant has not demonstrated that the trial court
limited his ability to call witnesses, precluded cross-
examination of state witnesses who had personal
knowledge of the investigation of the purported other
suspects or excluded the admission of any other rele-
vant or admissible evidence bearing on the police inves-
tigation of the other suspects. It merely determined
that the witness statements from the search warrant
affidavit were inadmissible hearsay on the basis of the
arguments that were presented to the court. Because
the defendant has failed to prove that the court’s eviden-
tiary ruling deprived him of his right to present a
defense, we conclude that the defendant’s unpreserved
claim is not of a constitutional magnitude, thus failing
the second prong of Golding. Accordingly, we decline
to review the claim.4
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant brought his appeal to this court pursuant to General
Statutes § 51-199 (b) (3).
2
Section 8-3 of the Connecticut Code of Evidence provides in relevant
part: ‘‘The following are not excluded by the hearsay rule, even though the
declarant is available as a witness: (1) Statement by a party opponent. A
statement that is being offered against a party and is . . . (B) a statement
that the party has adopted or approved . . . .’’
3
The defendant’s additional claim that no rule requires him to state a
hearsay exception in response to an objection is unavailing. Although he
claims that Practice Book § 5-5 does not apply to those seeking the admission
of evidence, this assertion is incorrect. Section 5-5, which details the proce-
dural process following an objection, plainly indicates that after an objection
to evidence is made, ‘‘counsel shall state the grounds upon which [the
admission of evidence] is claimed . . . succinctly and in such form as he
or she desires it to go upon the record, before any discussion or argument
is had. . . .’’ Thus, § 5-5 does apply to the defendant and did require him
to state the ground upon which he sought the admission of the statements
from the search warrant affidavit.
4
Because we decline to review the defendant’s unpreserved evidentiary
claim, we do not address the substance of his argument, namely, that the
state, with the police acting as its agent, is a party opponent, and that the
witness statements obtained by the police and used to support an application
for a search warrant are adopted or approved admissions.