State v. Bonds , 172 Conn. App. 108 ( 2017 )

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STATE OF CONNECTICUT v. DARRYL BONDS
(AC 38309)
Alvord, Prescott and Mihalakos, Js.
Argued December 13, 2016—officially released April 4, 2017
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, White, J.)
Stephan E. Seeger, with whom, on the brief, was Igor
G. Kuperman, for the appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, former
state’s attorney, and Joseph C. Valdes, senior assistant
state’s attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Darryl Bonds, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of felony murder in violation of Gen-
eral Statutes § 53a-54c,1 one count of robbery in the
first degree in violation of General Statutes § 53a-134
(a) (2), and one count of conspiracy to commit robbery
in the second degree in violation of General Statutes
§§ 53a-48 (a) and 53a-135. On appeal, the defendant
claims that the trial court improperly (1) admitted two
separate out-of-court statements under our hearsay
exception for statements against penal interest, (2)
admitted an out-of-court statement made by the defen-
dant that was not properly authenticated, and (3) denied
the defendant’s request to instruct the jury on an affir-
mative defense to felony murder. We affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. On October 28, 2009, approximately one week
before the victim, Denny ‘‘Pun’’ Alcantara, was robbed
and shot, Tyrone Tarver told Shari Johnson, a childhood
friend, that ‘‘he was going to set [Pun] up to get robbed
because he thought that [Pun] was soft.’’ Tarver then
stated that ‘‘he was going to call [Pun] up and tell him
that he wanted, like, ten bags of weed. And at that point,
that’s when [Tarver] was going to set [Pun] up . . . .’’
In response to this plan, Johnson expressed her disap-
pointment in Tarver and his behavior, and the two had
a ‘‘blow-out argument.’’
On November 4, 2009, at approximately 4 p.m., the
victim spoke on the telephone with his friend, Richard
Patterson, to confirm that they would be watching the
World Series together later that evening at the apart-
ment of another friend, Anthony LaCrete, at 62 Stillwa-
ter Avenue in Stamford. The victim also told Patterson
that he was going to meet with Tarver later that evening
outside LaCrete’s house, the purpose of which was later
revealed to be to sell marijuana to Tarver.
On the same day, at about 5:20 p.m., the defendant
called his cousin, Yvannia Collazo, and asked her to
drive him and some friends to Stillwater Avenue to buy
some ‘‘weed.’’ She agreed, and when she went to pick up
the defendant, he entered the car with his two friends,
Tarver and Joshua McNeil. She then dropped the three
men off in the vicinity of Stillwater Avenue, parked her
car in a local parking lot, and went into a nearby salon
to use the restroom.
At about 5:40 p.m., Tarver called the victim. Shortly
thereafter, the victim called LaCrete, who was holding
the victim’s drugs in his Stillwater Avenue apartment,
and asked for his ‘‘pack,’’ i.e., his bundle of marijuana.
At that point, LaCrete walked downstairs to the bottom
of the stairwell at the back of his house, delivered the
drugs to the victim, and went back upstairs. The victim
then went outside to make the sale to Tarver.
At about this time, Patterson was walking along Still-
water Avenue and saw the victim, who was wearing a
black leather jacket and a thick gold chain, sitting alone
on the porch at 62 Stillwater Avenue. Patterson told
the victim that he was meeting someone and would be
back soon to watch the game, and continued walking
down the street. As he was cutting through a parking
lot, Patterson saw three men—Tarver, the defendant,
and an individual later identified as McNeil—and
informed them that ‘‘Pun’’ was waiting for them around
the corner, to which Tarver and the defendant
replied, ‘‘okay.’’
At about 6 p.m., Gustavo Lopez was working at a
travel agency on Stillwater Avenue when he observed
two black males wearing hoodies in the agency’s park-
ing lot. The men were soon joined by a third male, and
all three eventually started walking in the direction of
62 Stillwater Avenue. Within minutes of when Lopez
saw the men leave the parking lot and when Patterson
left the defendant and Tarver, the victim was shot twice
in the stomach.
LaCrete heard the two gunshots from where he was
inside the house, followed by the victim repeatedly call-
ing out, ‘‘Tony,’’ in distress. This prompted LaCrete to
run downstairs and open the door, at which point the
victim stumbled in, bleeding. LaCrete asked the victim
who had shot him, and the victim replied, ‘‘nigga shot
me.’’ An ambulance and the police arrived on the scene
within five minutes of the shooting, and the victim was
observed to be missing his black leather jacket, gold
chain, cell phone, money, and marijuana. The victim
ultimately died of a gunshot wound to the abdomen.
Meanwhile, after walking out of the salon and imme-
diately hearing gunshots, Collazo got back into her car
and instantly observed McNeil ‘‘at [her] door side.’’
Within seconds, the defendant and Tarver also ran back
to the car and got in, with the defendant sitting in the
front and Tarver sitting in the back with McNeil. Acting
nervous and jittery, the defendant directed Collazo to
‘‘hurry up and leave.’’ While driving away, Collazo
noticed Tarver wearing a black leather jacket that he
had not been wearing previously. She also heard Tarver
say that he had the black leather jacket, gold chain, and
money, and the defendant say that he had the ‘‘weed.’’
Thereafter, Tarver and the defendant began arguing
with each other about ‘‘who gets what’’ from the items.
At some point, Collazo dropped off McNeil at a local
Stamford bodega; picked up her brother, Elvis Batista;
picked up her son from an after-school program in
Stamford; and proceeded to drive everyone back to her
and Batista’s apartment in Bridgeport.
During the drive, Tarver told Batista, ‘‘We just robbed
Pun.’’ Also during the drive, near a Norwalk exit on
Interstate 95, the defendant threw the victim’s cell
phone out of the car window. Upon arriving back home
in Bridgeport at about 7 p.m., Collazo turned on the
news on television and saw that a shooting had occurred
on Stillwater Avenue in Stamford, which gave her a
‘‘bad feeling.’’ The next morning, she woke up in her
apartment and smelled the scent of marijuana in the air,
saw the black leather jacket Tarver had been wearing in
the car the previous night, and noticed that the defen-
dant and Tarver were still in the apartment. On Decem-
ber 13, 2010, the defendant was arrested pursuant to
a warrant.
Prior to trial, the state filed a second amended infor-
mation dated May 7, 2014, charging the defendant with
one count of felony murder in violation of § 53a-54c,
one count of robbery in the first degree in violation of
§ 53a-134 (a) (2), and one count of conspiracy to commit
robbery in the second degree in violation of §§ 53a-48
(a) and 53a-135. Following a jury trial, the defendant
was found guilty of all counts. He was sentenced to
a total effective term of fifty-five years imprisonment
followed by five years of special parole. This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
The defendant first claims that the court improperly
admitted two hearsay statements made by Tarver.2 The
first, he made to Johnson approximately one week
before the robbery and shooting of the victim. The sec-
ond, he made to Batista immediately after the robbery
and shooting of the victim. The defendant specifically
argues, inter alia, that neither statement should have
been admitted under § 8-6 (4) of the Connecticut Code
of Evidence, entitled ‘‘Statement against penal interest,’’
because the first statement to Johnson would not have
subjected Tarver to any criminal liability, and the sec-
ond statement to Batista is not sufficiently trustworthy
because the two parties did not share a preexisting
relationship with each other.
In response, the state first argues that the hearsay
statement to Johnson was properly admitted as a state-
ment against penal interest because it is inculpatory
pursuant to the holding of State v. Bryant, 202 Conn.
676, 689–702, 523 A.2d 451 (1987).3 The state next argues
that the hearsay statement to Batista was properly
admitted as a statement against penal interest4 because
the evidence suggested more than a mere acquaintance-
ship between the two parties, and the factors that
inform the court’s determination regarding the state-
ment’s trustworthiness weigh in favor of its reliability.
We agree with the state that both statements were prop-
erly admitted as statements against penal interest.
Before addressing the merits of these claims, we set
forth the applicable standard of review and the law
governing the hearsay exception for statements against
penal interest. ‘‘To the extent [that] a trial court’s admis-
sion of evidence is based on an interpretation of the
Code of Evidence, our standard of review is plenary.
For example, whether a challenged statement properly
may be classified as hearsay and whether a hearsay
exception properly is identified are legal questions
demanding plenary review. . . . We review the trial
court’s decision to admit evidence, if premised on a
correct view of the law, however, for an abuse of discre-
tion.’’ (Internal quotation marks omitted.) State v.
Miguel C., 305 Conn. 562, 571–72, 46 A.3d 126 (2012).
‘‘As a general matter, hearsay statements may not be
admitted into evidence unless they fall within a recog-
nized exception to the hearsay rule.’’ State v. Smith,
289 Conn. 598, 618, 960 A.2d 993 (2008). Section 8-6 of
the Connecticut Code of Evidence provides in relevant
part that ‘‘[t]he following are not excluded by the hear-
say rule if the declarant is unavailable as a witness
. . . (4) Statement against penal interest. A trustworthy
statement against penal interest that, at the time of its
making, so far tended to subject the declarant to crimi-
nal liability that a reasonable person in the declarant’s
position would not have made the statement unless
the person believed it to be true. In determining the
trustworthiness of a statement against penal interest,
the court shall consider (A) the time the statement was
made and the person to whom the statement was made,
(B) the existence of corroborating evidence in the case,
and (C) the extent to which the statement was against
the declarant’s penal interest . . . .’’ In short, the
admissibility of a hearsay statement pursuant to § 8-6
(4) of the Connecticut Code of Evidence ‘‘is subject to
a binary inquiry: (1) whether [the] statement . . . was
against [the declarant’s] penal interest and, if so, (2)
whether the statement was sufficiently trustworthy.’’
State v. Collins, 147 Conn. App. 584, 590, 82 A.3d 1208,
cert. denied, 311 Conn. 929, 86 A.3d 1057 (2014).
A
We turn first to the defendant’s claim that the court
improperly admitted as a statement against penal inter-
est the hearsay declaration that Tarver made to John-
son—that he was going to set up ‘‘Pun’’ to be robbed—
seven days prior to the robbery and shooting of the
victim. The defendant argues that the statement does
not qualify as one against penal interest because the
statement alone would not have subjected Tarver to
any criminal liability, given that Tarver was merely
‘‘sharing an unformed idea for the future with his
friend.’’ In response, the state argues that there is no
requirement that such statements must, by themselves,
subject the declarant to arrest, because the exception
applies equally to statements which ‘‘tend’’ to incrimi-
nate the declarant were he or she charged with a crime,
as made clear by our Supreme Court’s decision in State
v. Bryant, supra, 202 Conn. 695–96. We agree with
the state.
With respect to what it means for a statement to be
‘‘against penal interest,’’ our Supreme Court held in
State v. Bryant, supra, 202 Conn. 695–96, that it was
persuaded by ‘‘the trend to reject a narrow and inflexi-
ble definition of a statement against penal interest in
favor of a definition which includes not only confes-
sions, but other remarks [that] would tend to incrimi-
nate the declarant were he or she the individual charged
with the crime. . . . The against interest exception is
not limited to a defendant’s direct confession of guilt.
. . . It applies as well to statements that tend to subject
the speaker to criminal liability. . . . The rule encom-
passes disserving statements by a declarant that would
have probative value in a trial against the declarant.
. . . Considered in context, the term tend . . .
reaches in a proper case as against interest remarks
that strengthen the impression that the declarant had
an insider’s knowledge of the crimes. . . . As to what
is against penal interest, quite obviously the essential
characteristic is the exposure to risk of punishment for
a crime. . . . Moreover, it is not the fact that the decla-
ration is against interest but the awareness of that fact
by the declarant [that] gives the statement significance.’’
(Citations omitted; internal quotation marks omitted.)
Id.
In Bryant, the court was tasked, in part, with
reviewing whether a hearsay statement, offered by the
defendant, that the defendant’s brother, Eugene Bryant,
made to a witness, Keith Perry, before the burglary at
issue occurred was properly excluded by the trial court
because it failed to fall within the hearsay exception
for statements against penal interest. Id., 691–95. Before
the burglary in that case took place on September 8,
1983, Bryant asked Perry toward the end of summer if
he wanted to break into an apartment on Dell Avenue
in New London. Id., 690. Our Supreme Court held that
the statement was ‘‘in a very real sense self-incrimina-
tory and unquestionably against interest’’ because ‘‘the
context in which [Bryant] had made the statements
concerning the burglary . . . fairly viewed, indicates
that he had an insider’s knowledge of the crimes and
implied his personal participation.’’ (Internal quotation
marks omitted.) Id., 696.
In the present case, therefore, we disagree with the
defendant’s assertion that the statement could not be
considered against Tarver’s penal interest because, at
the time it was made, it could not subject him to immedi-
ate criminal liability. If the only requirement for consti-
tuting ‘‘against penal interest’’ were that such
statements must, by themselves, subject the declarant
to immediate criminal liability, then any statement
made before the commission of a crime could never
constitute a statement against interest, a conclusion
that contravenes our Supreme Court’s holding in
Bryant.
By explicitly stating to Johnson that he intended to
rob the victim during a feigned drug transaction by
calling in an order of ‘‘ten bags of weed,’’ Tarver cer-
tainly ‘‘tend[ed] to subject [himself] to criminal liability’’
in that the statement ‘‘would have probative value in a
trial against the declarant.’’5 (Emphasis added; internal
quotation marks omitted.) State v. Bryant, supra, 202
Conn. 695–96. Ultimately, Tarver’s statement here, like
Bryant’s statement to Perry in Bryant, indicates that
the declarant intended in the future to participate per-
sonally in a robbery of the victim.6 The trustworthiness
of that statement is strongly bolstered by the fact that
such a robbery subsequently occurred just seven days
after the statement was made.
To the extent that the defendant argues that the court
cannot rely on evidence of a ‘‘subsequently committed
crime’’ in its evaluation of ‘‘the existence of corroborat-
ing evidence in the case’’; Conn. Code Evid. § 8-6 (4)
(B); we disagree. In fact, in Bryant, our Supreme Court
specifically looked to evidence of the subsequently
committed robbery in evaluating the existence of cor-
roborating evidence bolstering the trustworthiness of
the statement against penal interest. The court stated
that ‘‘[Bryant’s] earlier importuning of Perry, evidencing
his predisposition to commit the crime, is also not with-
out significance, given the actual burglary of the apart-
ment on Dell Avenue.’’ State v. Bryant, supra, 202 Conn.
698. ‘‘It is evident that there was significant evidence
of the corroborative quality required.’’ Id., 701.
The defendant cites to both Idaho v. Wright, 497 U.S.
805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), and State
v. Merriam, 264 Conn. 617, 835 A.2d 895 (2003), in
support of his assertion that ‘‘evidence not directly
related to the circumstances surrounding the making
of the statement cannot be used to substantiate the
statement’s trustworthiness.’’ Id., 644. Those cases are
inapplicable here.
In both cases, the nature of the defendant’s claim
was that the admission of the out-of-court statement
violated his rights under the confrontation clause. See
id., 642; see also Idaho v. Wright, supra, 497 U.S. 822–23.
Accordingly, both cases analyzed the defendant’s claim
pursuant to the applicable legal framework at that time
set forth in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531,
65 L. Ed. 2d 597 (1980), which provided that ‘‘once a
witness is shown to be unavailable, his statement is
admissible only if it bears adequate indicia of reliability
. . . [and] the evidence must be excluded . . . absent
a showing of particularized guarantees of trustworthi-
ness.’’ (Emphasis added; internal quotation marks omit-
ted.) Idaho v. Wright, supra, 814–15. This test, however,
requiring ‘‘particularized guarantees of trustworthi-
ness,’’ is more rigorous than the requirement set forth
in § 8-6 (4) of the Connecticut Code of Evidence, that is,
that the statement simply be ‘‘trustworthy.’’7 In addition,
the test set forth in Roberts was abrogated later by
Crawford v. Washington, 541 U.S. 36, 51–53, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004). The defendant here does
not allege a constitutional claim under the confronta-
tion clause, nor could he succeed in doing so, given
that the hearsay statement here was not ‘‘testimonial’’
in nature. See id. Accordingly, the defendant’s reliance
upon Wright and Merriam is unavailing.
For all of these reasons, we conclude that Tarver’s
declaration to Johnson was against his penal interest.
Accordingly, the court did not abuse its discretion in
admitting it pursuant to the hearsay exception set forth
in § 8-6 (4) of the Connecticut Code of Evidence.
B
We next turn to the defendant’s claim that the court
improperly admitted as a statement against penal inter-
est the hearsay declaration that Tarver made to
Batista—‘‘we just robbed Pun’’—in Collazo’s car imme-
diately following the robbery and shooting of the victim.
The defendant specifically argues that the court abused
its discretion in admitting the statement because it was
not trustworthy in light of the fact that there was not
a preexisting relationship of ‘‘special trust’’ between
the declarant and the listener. In response, the state
argues that the evidence suggested more than a mere
acquaintanceship between the two parties, and the fac-
tors that speak to a statement’s trustworthiness, as set
forth in § 8-6 (4) (A) through (C) of the Connecticut
Code of Evidence, weigh in favor of its reliability. We
conclude that the court, after weighing the relevant
factors that bear upon the trustworthiness of Tarver’s
statement to Batista, did not abuse its discretion in
admitting the statement.
As previously noted, § 8-6 (4) of the Connecticut Code
of Evidence sets forth three factors a court shall con-
sider in determining a statement’s trustworthiness: ‘‘(A)
the time the statement was made and the person to
whom the statement was made, (B) the existence of
corroborating evidence in the case, and (C) the extent
to which the statement was against the declarant’s penal
interest.’’ ‘‘[T]he trial court must carefully weigh all of
the relevant factors in determining whether the state-
ment bears sufficient indicia of reliability to warrant its
admission.’’ (Internal quotation marks omitted.) State v.
Camacho, 282 Conn. 328, 363, 924 A.2d 99, cert. denied,
552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007).
Accordingly, ‘‘[n]o single factor for determining trust-
worthiness . . . is necessarily conclusive.’’ (Internal
quotation marks omitted.) State v. Bryant, supra, 202
Conn. 694. We review for an abuse of discretion the
court’s determination that the statement was trustwor-
thy and, thus, admissible at trial. See State v. Miguel
C., supra, 305 Conn. 571–72.
Beginning with the third factor, we conclude that
Tarver’s statement to Batista was against his penal inter-
est to a significant extent and, thus, weighs heavily in
support of its admissibility. He directly and explicitly
incriminated himself by admitting his own participation
in the crime. In other words, ‘‘there is nothing to suggest
that [Tarver] was attempting to . . . minimize his own
criminal involvement.’’ State v. Pierre, 277 Conn. 42,
69, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct.
2873, 165 L. Ed. 2d 904 (2006).
With regard to the second factor, we conclude that
there was an abundance of other evidence corroborat-
ing the trustworthiness of Tarver’s statement. As pre-
viously discussed, seven days before the robbery and
shooting of the victim, Tarver told his friend, Johnson,
that he intended to rob the victim in a scheme involving
a phony drug deal. Moreover, Collazo testified that the
defendant asked her to give the men a ride to Stillwater
Avenue on the evening of November 4, 2009, for the
purpose of buying drugs, a request with which Collazo
complied. Furthermore, telephone records presented
at trial showed that Tarver called the victim right before
the victim was found robbed and shot. In addition,
within seconds before the shooting, the defendant and
Tarver were seen heading toward the victim’s house,
as attested to by Patterson, and, within seconds after
the shooting, the men ran back to Collazo’s car, at which
point the defendant urgently directed Collazo ‘‘to hurry
up and leave.’’ There was also evidence that, while in
Collazo’s car, Tarver and the defendant were in posses-
sion of the victim’s black leather jacket, gold chain,
marijuana, and money, and that the two men were
arguing over ‘‘who gets what.’’
With regard to the remaining factor for trustworthi-
ness set forth in § 8-6 (4) of the Connecticut Code of
Evidence, we conclude that the circumstances under
which Tarver made his statement to Batista were
strongly indicative of its reliability. ‘‘In general, declara-
tions made soon after the crime suggest more reliability
than those made after a lapse of time where a declarant
has a more ample opportunity for reflection and contriv-
ance.’’ (Internal quotation marks omitted.) State v.
Pierre, supra, 277 Conn. 70. Here, the robbery and
shooting of the victim occurred sometime near 6 p.m.,
and Tarver, McNeil, and the defendant all got back
into Collazo’s car immediately after Collazo heard the
gunshots. At that point, Collazo dropped McNeil off a
short distance away and picked up Batista.
Collazo testified that she made it back to Bridgeport
at about 7 p.m. Accordingly, the statement that Tarver
made to Batista took place within one hour after the
crime, ‘‘thus suggesting that the details of each individu-
al’s participation in the incident were still fresh in [Tarv-
er’s] mind.’’ Id., 71. Moreover, Tarver’s statement
appears to be ‘‘spontaneous and unsolicited’’; State v.
Bryant, supra, 202 Conn. 698; therefore making it
more reliable.
The defendant maintains that the statement is not
sufficiently trustworthy because Tarver and Batista did
not share a close relationship with each other such that
Tarver would have naturally confided in Batista about
the defendant and Tarver having ‘‘just robbed Pun.’’
There was evidence, however, that Tarver, along with
the defendant, stayed the night at Batista’s apartment
in Bridgeport immediately after the crime occurred,
suggesting a greater degree of acquaintanceship
between the two men. Such a relationship between
declarant and listener is one that our Supreme Court
tacitly has approved as supporting the reliability of a
statement against penal interest. See State v. Bryant,
supra, 202 Conn. 699, quoting Chambers v. Mississippi,
410 U.S. 284, 300, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)
(‘‘assurances of reliability were found in the circum-
stance that the defendant’s confessions were made
‘spontaneously to a close acquaintance shortly after
the [crime] had occurred’ ’’ [emphasis added]). We also
note that although the record does not establish the
nature and extent of Tarver’s and Batista’s relationship,8
the statement certainly was made outside ‘‘the coercive
atmosphere of official interrogation,’’ which our
Supreme Court has held makes it ‘‘more trustworthy
than statements obtained by government agents for the
purpose of creating evidence that would be useful at a
future trial.’’ (Internal quotation marks omitted.) State
v. Pierre, supra, 277 Conn. 69–70.
Even if we were to assume, however, that Tarver and
Batista did not have a significant preexisting relation-
ship with each other at the time the statement was
made, it bears repeating that ‘‘[n]o single factor for
determining trustworthiness . . . is necessarily con-
clusive.’’ (Internal quotation marks omitted.) State v.
Bryant, supra, 202 Conn. 694. Rather, the trial court is
tasked with weighing all of the relevant factors set forth
in § 8-6 (4) of the Connecticut Code of Evidence. State
v. Camacho, supra, 282 Conn. 363. Thus, to the extent
that this consideration does not cut in favor of the
statement’s reliability, it does not necessarily trump the
significance of the other factors that weigh in favor of
its trustworthiness. Accordingly, we conclude that the
court did not abuse its discretion in admitting the state-
ment against penal interest made by Tarver to Batista.
II
The defendant next claims that the trial court improp-
erly admitted a written statement given to the police by
Alexis Farrow because that statement itself contained
evidence of an insufficiently authenticated telephone
call between the defendant and Farrow, during which
the defendant made an inculpatory statement.9 Specifi-
cally, the defendant argues that Farrow’s written state-
ment should not have been admitted because (1) the
statement to the police did not contain sufficient evi-
dence that Farrow knew to whom she was talking on
the telephone, and (2) Farrow subsequently recanted
at trial her account of the telephone conversation.
In response, the state argues that Farrow’s written
statement set forth sufficient facts to authenticate the
underlying telephone call and that, because the written
statement was admitted into evidence for substantive
purposes pursuant to State v. Whelan, 200 Conn. 743,
753, 513 A.2d 86, cert. denied, 479 U.S. 994, 1075 S. Ct.
597, 93 L. Ed. 2d 598 (1986), the court could credit it
for purposes of deciding that the telephone call was
sufficiently authenticated. We agree with the state.
The following facts and procedural history are rele-
vant to this claim. On the day after the robbery and
shooting of the victim, Farrow and her friend, Jeriya
Hargrove, called the victim’s cell phone multiple times
to see if someone would answer because they believed
his cell phone had gone missing after the shooting. No
one picked up, and the call went to voice mail. The
women then decided to call simultaneously the cell
phone of the defendant, to whom they referred by his
nickname, ‘‘Pretty D,’’ and the cell phone of the victim,
to see if the victim’s cell phone would ring in the back-
ground of the call with the defendant. The defendant
answered in a feigned feminine tone and said, ‘‘Hello,
who is this?’’ to which the women responded, ‘‘Who is
this?’’ After going back and forth like this several times,
the women hung up the telephone. Shortly thereafter,
they called the defendant’s cell phone again, and he
responded in his normal voice. Farrow repeatedly asked
the defendant, ‘‘Where’s Pun?’’ and the defendant
repeatedly asked, ‘‘Who is this?’’ The defendant, there-
after, hung up the telephone. After waiting thirty sec-
onds, the women called the defendant’s cell phone one
last time, and the defendant answered and said, ‘‘Yeah,
I killed Pun, you stupid bitch,’’ before hanging up on
them again.
The next day, on November 6, 2009, Farrow went
to the Stamford Police Department. She gave a sworn
written statement recounting these events and picked
the defendant out of a photographic array, identifying
him as ‘‘the person who spoke to me on the telephone.’’
In her statement to the police, Farrow attested: ‘‘I know
the person answering the telephone was Pretty D
because I know his voice very well, and I have known
him for five years.’’
At the defendant’s trial, Farrow testified that she did
not want to be in court, she had not known the defen-
dant for five years, she could not be sure that the person
on the telephone that day was the defendant, she did
not say anything to the person on the telephone, and
she could not be sure what the person on the telephone
was saying because the voice sounded muffled. In light
of this recantation, the state offered and the court
admitted into evidence for substantive purposes Far-
row’s previous November 6, 2009 statement to the
police pursuant to State v. Whelan, supra, 200 Conn. 753.
‘‘In State v. Whelan, supra, 200 Conn. 753 . . . we
adopted a hearsay exception allowing the substantive
use of prior written inconsistent statements, signed by
the declarant, who has personal knowledge of the facts
stated, when the declarant testifies at trial and is subject
to cross-examination. This rule has also been codified
in § 8-5 (1) of the Connecticut Code of Evidence . . . .
The Whelan hearsay exception applies to a relatively
narrow category of prior inconsistent statements . . .
[and was] carefully limited . . . to those prior state-
ments that carry such substantial indicia of reliability
as to warrant their substantive admissibility. As with
any statement that is admitted into evidence under a
hearsay exception, a statement that satisfies the Whelan
criteria may or may not be true in fact. But, as with
any other statement that qualifies under a hearsay
exception, it nevertheless is admissible to establish the
truth of the matter asserted because it falls within a
class of hearsay evidence that has been deemed suffi-
ciently trustworthy to merit such treatment. Thus . . .
we allow the fact finder to determine whether the hear-
say statement is credible upon consideration of all the
relevant circumstances.’’ (Citations omitted; internal
quotation marks omitted.) State v. Simpson, 286 Conn.
634, 641–43, 945 A.2d 449 (2008).
The defendant on appeal does not assert that the
court improperly admitted Farrow’s written statement
as substantive evidence at trial. Instead, the defendant’s
claim is limited to an assertion that the written state-
ment did not contain sufficient evidence to authenticate
the underlying telephone call, particularly in light of
the recantation of the salient facts with respect to that
telephone call.
We now turn to the question of whether the court
had sufficient facts before it to support its implicit find-
ing that the telephone call had been sufficiently authen-
ticated. The Connecticut Code of Evidence provides
that ‘‘[t]he requirement of authentication as a condition
precedent to admissibility is satisfied by evidence suffi-
cient to support a finding that the offered evidence is
what its proponent claims it to be.’’ Conn. Code Evid.
§ 9-1 (a). ‘‘Similar to writings, authentication is a neces-
sary preliminary to the introduction of telephone com-
munications. . . . There need only be a prima facie
showing of the telephone conversation to the court and
then, as long as it is otherwise admissible, the evidence
goes to the jury, which will ultimately determine its
authenticity. . . . The proffering party must demon-
strate to the trial court that there is substantial evidence
from which the jury could infer that the telephone com-
munication was authentic. . . . Telephone conversa-
tions may be authenticated by circumstantial evidence,
if the party calling, in addition to stating his identity,
relates facts and circumstances that, taken with other
established facts, tend to reveal his identity. . . . The
requisite . . . proof may take the form of testimony
by the witness that he is familiar with X’s voice and that
the caller was X.’’ (Citations omitted; internal quotation
marks omitted.) State v. Valentine, 255 Conn. 61, 77–78,
762 A.2d 1278 (2000). Such identifications ‘‘are admissi-
ble if the identifying witness is minimally familiar with
the voice he identifies. . . . Once the minimal showing
has been made, the jury determines the weight to accord
to the identification testimony.’’ (Internal quotation
marks omitted.) State v. Kerr, 120 Conn. App. 203, 224,
991 A.2d 605, cert. denied, 296 Conn. 907, 992 A.2d
1136 (2010).
In the present case, we do not find persuasive the
defendant’s argument that the out-of-court confes-
sion10—‘‘I killed Pun, you stupid bitch’’—that he alleg-
edly made to Farrow over the telephone was improperly
admitted because it was not sufficiently authenticated.
In Farrow’s statement to the police, the entirety of
which was introduced into evidence as proof of the
facts contained therein, she explicitly attested that she
‘‘[knew] the person answering the telephone was Pretty
D because [she knows] his voice very well, and [she
has] known him for five years.’’ As this court held in
Kerr, the requirement for authenticating such a commu-
nication is to make a mere minimal showing. State v.
Kerr, supra, 120 Conn. App. 224. In this case, the evi-
dence of these facts was contained in the sworn state-
ment by Farrow that she was familiar with the
defendant’s voice and that the person on the other end
of the line was the defendant. See State v. Valentine,
supra, 255 Conn. 78. This is precisely what occurred
here. Moreover, the defendant provides no support for
his assertion that the witness must provide more details
than a ‘‘naked conclusion’’ that she is familiar with the
defendant’s voice, and we decline to impose such an
additional requirement.
With regard to the defendant’s argument that the
telephone conversation was not properly authenticated
because Farrow recanted much of her previous state-
ment to the police, such a contention is irrelevant to
our present analysis because the written statement was
admitted pursuant to Whelan. As previously stated,
under Whelan, although the prior written inconsistent
statement ‘‘may or may not be true in fact,’’ it neverthe-
less may be admitted to establish the truth of the matter
asserted, at which point ‘‘we allow the fact finder to
determine whether the hearsay statement is credible
upon consideration of all the relevant circumstances.’’
(Internal quotation marks omitted.) State v. Simpson,
supra, 286 Conn. 642–43. The court, therefore, had con-
flicting evidence of the critical facts that bear upon the
question of whether there had been a sufficient showing
of authentication regarding the telephone conversation.
Although the court did not make any particular findings
regarding facts, we presume on this record that the
court chose to credit the evidence contained in the
written statement that Farrow was familiar with the
defendant’s voice and knew it was the defendant on
the telephone call, and it did not credit her recantation
of those facts. See Conn. Code Evid. § 1-3 (a) (‘‘prelimi-
nary questions concerning . . . the admissibility of evi-
dence shall be determined by the court’’).
Because, as stated previously, we conclude that Far-
row’s written statement concerning the telephone call
with the defendant met the minimal authentication stan-
dards required by § 9-1 (a) of the Connecticut Code of
Evidence, we conclude that the court did not abuse its
discretion in admitting it.
III
The defendant’s final claim on appeal is that the court
improperly denied his request to instruct the jury on
the affirmative defense to felony murder contained in
§ 53a-54c, which provides in relevant part: ‘‘[I]n any
prosecution under this section, in which the defendant
was not the only participant in the underlying crime, it
shall be an affirmative defense that the defendant: (1)
Did not commit the homicidal act or in any way solicit,
request, command, importune, cause or aid the commis-
sion thereof; and (2) was not armed with a deadly
weapon, or any dangerous instrument; and (3) had no
reasonable ground to believe that any other participant
was armed with such a weapon or instrument; and (4)
had no reasonable ground to believe that any other
participant intended to engage in conduct likely to
result in death or serious physical injury.’’
Specifically, the defendant argues that the court
should have given the requested charge because there
was sufficient evidence from which the jury could con-
clude that he did not commit or otherwise contribute
to the homicidal act, he did not have a weapon on him,
he did not expect Tarver to be armed, and he did not
have a reasonable ground to believe that Tarver
intended to rob or otherwise harm the victim. In
response, the state argues that the court properly
declined to give the charge because there was insuffi-
cient evidence from which the jury reasonably could
find the existence of each of the four elements of § 53-
54c by a preponderance of the evidence. We agree with
the state.
The following facts and procedural history are rele-
vant to our review of this claim. Prior to the court
finalizing its jury instructions, the defendant filed a
request to charge on the affirmative defense to felony
murder as set forth in § 53a-54c, and the parties dis-
cussed the matter with the court during a charge confer-
ence on May 28, 2014. The defendant essentially rested
his affirmative defense on the theory that he only
intended to purchase ‘‘weed’’ from the victim on the
evening in question and that, unbeknownst to him,
Tarver alone planned and carried out the robbery and
shooting. During the charge conference, the defendant
emphasized the fact that he did not need to produce
the evidence himself in order to be entitled to an instruc-
tion, and he proceeded to point to various pieces of
evidence that were admitted during the state’s presenta-
tion of its case in support of his contention that there
was sufficient proof for a reasonable juror to find that
all of the elements of § 53a-54c had been satisfied,
including the following: testimony from Johnson
reflecting Tarver’s intent to rob the victim, testimony
from Collazo that Tarver stated to Batista immediately
after the shooting that he had robbed the victim, testi-
mony from Collazo indicating that she did not observe
the defendant armed that day, and testimony from Col-
lazo indicating the defendant’s surprised reaction imme-
diately after the shooting.11
The state argued, in turn, that although the case law
does not require that evidence necessary to satisfy the
elements of the affirmative defense be offered by the
defendant, it does require that ‘‘there be evidence from
some person. There wasn’t a third person there who
basically said . . . I was there and I watched [the
defendant]; and I was with [the defendant] and Mr.
Tarver all morning, and they never talked about any-
thing. This is hypothetical. That would be evidence. In
some of these cases, there was evidence . . . on one
of the prongs where a witness said that the shooter
was another person. So, while it is true that there
doesn’t have to be testimony by the defendant . . . it’s
not true . . . that basically just surmising one plausible
interpretation of the evidence and basically inferring
into the rest of it that that [rises] to the level of having
evidence by a preponderance of the evidence to request
this affirmative defense.’’
The following exchange then took place between the
court and defense counsel:
‘‘The Court: . . . Let’s just say I were to credit [the
defendant’s] argument about element two [being satis-
fied] because Miss Collazo, I think, did say [that she
did not see the defendant with a weapon].
‘‘Although I don’t know how in the world she would
know—really know that. But she said that the defendant
didn’t have a gun or wasn’t armed.
‘‘But in terms of [element] one, did not participate
in a homicidal act. The first element is, the defendant
did not commit a homicidal act or in any way solicit,
request, command, importune and cause or aid in the
commission of the act.
‘‘You cite Tarver’s statement to Shari Johnson that
he’s going to—he wants to rob Pun. That doesn’t say
anything about who did the homicidal act.
‘‘Even if everyone believes, the jury believes that Mr.
Tarver planned to rob [the victim] and did rob [the
victim], that doesn’t mean that Mr. Tarver pulled the
trigger, so to speak. . . .
‘‘[Defense Counsel]: . . . [I]t’s not just Mr. Tarver’s
actions. It’s also [the defendant’s] action. If you look
at the two together, Mr. Tarver planned the robbery.
[The defendant] plans to buy weed.
‘‘Mr. Tarver after the robbery discusses how—tells
people, I robbed Pun and goes over the list of the things
he has, and he has the jacket on him. [The defendant]
acts with outrage and surprise and says, you know,
what the ‘F.’ . . .
‘‘The Court: . . . I’ll just say this. I’m not convinced.
‘‘From what I heard, basically, your argument, I don’t
think that there’s sufficient evidence to even go to the
jury on the first count that the defendant didn’t do the
homicidal act.
‘‘And even, as I said, crediting your argument regard-
ing element two—and I really don’t, but just for argu-
ment’s sake, you go on[to] element three, the defendant
did not believe any other participant was armed. I don’t
really see any evidence to indicate that.
‘‘And it’s the defense that has to go forward on this,
and I don’t see the evidence regarding element four—
did not believe any other participant was likely to com-
mit a homicidal act. And I agree with you that the
defendant doesn’t have to get up on the witness stand
and say that, but there’s got to be some evidence on that.
‘‘So, I don’t really think there’s sufficient evidence
for the affirmative defense to go to the jury . . . .’’
The following legal principles guide our review of
this claim. ‘‘If there is sufficient evidence of a legal
defense, the defendant is entitled, as a matter of law,
to a requested jury charge on that defense. . . .
Because the defendant bears the burden of proof of an
affirmative defense . . . a defendant is entitled to a
requested instruction on the affirmative defense [to fel-
ony murder as set forth in § 53a-54c] only if there is
sufficient evidence for a rational juror to find that all
the elements of the defense are established by a prepon-
derance of the evidence.’’ (Citations omitted; internal
quotation marks omitted.) State v. Person, 236 Conn.
342, 352–53, 673 A.2d 463 (1996).
We note that, in his brief, the defendant argues that
‘‘ ‘a defendant is entitled to [an] [instruction] on a
defense for which there is evidence produced at trial
to justify the instruction, no matter how weak or incred-
ible the claim.’ ’’ (Emphasis added.) This contention is
incorrect in the context of this case, however, as that
standard applies only to general defenses, not affirma-
tive defenses such as the one set forth in § 53a-54c. See
State v. Person, supra, 236 Conn. 352–53 (‘‘It is well
established in Connecticut that a defendant is entitled
to have the jury instructed on any general defense for
which there is any foundation in the evidence, no matter
how weak or incredible. . . . This standard is appro-
priate when a defendant raises a general defense and
the state has the burden of disproving that defense
beyond a reasonable doubt. . . . The any evidence
standard has been improperly applied, however, to affir-
mative defenses. . . . To the extent that those cases
have held that any evidence is sufficient for a defendant
to be entitled to a requested instruction regarding an
affirmative defense, they are overruled.’’ [Citations
omitted; internal quotation marks omitted.])
In the present case, the court properly declined to
charge the jury on the affirmative defense because the
defendant did not meet his burden of presenting suffi-
cient evidence from which the jury could rationally
conclude that he had proved by a fair preponderance
the existence of each of the four elements set forth in
§ 53a-54c. With respect to the first element, there is
simply no evidence in the record that the defendant did
not commit the shooting or in any way solicit, request,
command, importune, cause, or aid the commission
thereof. Although the defendant was free to argue, as
he did, that he was not the shooter and that he was
merely an innocent bystander to the crimes committed
by Tarver, such an assertion functions as a challenge
to the state’s burden of proving its case beyond a reason-
able doubt—it does not constitute affirmative evidence
that the defendant was not the shooter.
After reviewing the record, we are unable to find
any evidence presented as to the identity of the actual
shooter, presumably because no one testified as an
eyewitness to the shooting, with the exception of Far-
row’s statement that quoted the defendant as saying
that he killed ‘‘Pun.’’ Thus, the only affirmative evidence
in the record as to the identity of the shooter inculpates
the defendant, not Tarver. Moreover, as the trial court
aptly noted, ‘‘[e]ven if . . . the jury believes that Mr.
Tarver planned to rob [the victim] and did rob [the
victim], that doesn’t mean that Mr. Tarver pulled the
trigger, so to speak.’’ In other words, the jury was not
obligated to decide that only one of the two men—
Tarver or the defendant—carried out the robbery and
shooting; it reasonably could have found that both men
were involved in the commission of the offenses and
were working with each other to a common end. For
these reasons, we cannot conclude that the defendant
provided sufficient evidence for a ‘‘rational juror to
find that [the defendant did not commit or aid in the
homicidal act] by a preponderance of the evidence.’’
State v. Small, 242 Conn. 93, 102, 700 A.2d 617 (1997).
Furthermore, even if we were to assume that there
was sufficient evidence for the defendant to carry his
burden on the second element—that the defendant was
not armed with a gun—we cannot conclude that the
defendant carried his burden with regard to the two
remaining elements of § 53a-54c. As previously dis-
cussed in the context of the first element, we conclude
that the defendant’s arguments with respect to the
remaining elements also operate as mere challenges to
the state’s burden of proving its case and that such
arguments cannot be used as a substitute for affirmative
evidence. In sum, there was simply no evidence pre-
sented that the defendant ‘‘had no reasonable ground
to believe that [Tarver] was armed’’—element three—
or that the defendant ‘‘had no reasonable ground to
believe that [Tarver] intended to engage in conduct
likely to result in death or serious physical injury’’—
element four. See General Statutes § 53a-54c.
Finally, we note that although the defendant certainly
was not required to take the witness stand and testify
on his own behalf, we agree with the state’s assessment
in its brief that ‘‘appellate cases that have found suffi-
cient evidence on the statutory elements of § 53a-54c
have generally relied on the defendant’s own testimony
to establish those elements . . . [thereby underscor-
ing] that it is the defendant who carries the burden
of presenting evidence when asserting an affirmative
defense.’’ (Citations omitted.) See, e.g., State v. Small,
supra, 242 Conn. 103; State v. Bond, 201 Conn. 34, 37,
513 A.2d 95 (1986); State v. Vitale, 197 Conn. 396, 400–
401, 497 A.2d 956 (1985).
Because the defendant has failed to demonstrate that
there was sufficient evidence before the jury to estab-
lish by a fair preponderance that all elements of the
defense were met, the defendant cannot succeed on
this claim because the affirmative defense set forth in
§ 53a-54c is established only if all four elements are
proven. See State v. Person, supra, 236 Conn. 353.
Accordingly, we conclude that the court properly
declined the defendant’s request to charge the jury on
the affirmative defense to felony murder.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that although § 53a-54c has been amended since the date of
the events at issue, that amendment is not relevant to this appeal. For
convenience, we refer to the current revision of § 53a-54c.
2
The state filed a motion in limine setting forth its arguments as to why
these statements, and other evidence, should be admitted. The defendant
subsequently filed an objection to the state’s motion in limine. We note that
we were not provided a transcript of the court’s actual ruling on the motion,
to the extent that it was on the record. We also note that the written motion
in limine in the case file does not contain a signed order by the court. The
parties, however, do not appear to dispute that the court granted the motion,
and the court, on at least one occasion, implied that it had made a prior
ruling in the state’s favor on the motion in limine, at one point stating to
defense counsel: ‘‘Even if you claim [Collazo] said something inconsistent,
it doesn’t affect my prior ruling. We had a motion in limine. I heard an offer
of proof. I heard your arguments. You submitted briefs to me. I read them.
I heard the state’s arguments. I read the state’s brief. That’s why we did all
this ahead of time.’’
The state nevertheless argues that because the defendant has not provided
this court with the trial court’s ruling on the challenged statements, the
record is inadequate for review. We disagree. Because the parties’ positions
on the admissibility of these hearsay statements were sufficiently set forth
in their memoranda in support of, and in opposition to, the motion in limine,
the record is otherwise adequate for review. To the extent the trial court
was required to make preliminary factual determinations in deciding to
admit evidence; see Conn. Code Evid. § 1-3 (a); we construe the factual
record to support rather than undermine the court’s decision to admit the
evidence. State v. Camacho, 282 Conn. 328, 354, 924 A.2d 99 (‘‘the evidence
will be construed in a way most favorable to sustaining the preliminary
determinations of the trial court’’ [internal quotation marks omitted]), cert.
denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). Moreover,
because we decide these claims adversely to the defendant, the state is not
prejudiced by our consideration of them. See State v. Gaines, 257 Conn.
695, 713 n.13, 778 A.2d 919 (2001).
3
The state also argues, in the alternative, that Tarver’s statement to John-
son was properly admitted pursuant to § 8-3 (4) of the Connecticut Code
of Evidence, entitled ‘‘Statement of then-existing mental or emotional condi-
tion.’’ Because our conclusion that the statement was properly admitted as
a statement against penal interest is dispositive of this claim, we need not
address the state’s alternative ground.
4
In the state’s motion in limine before the trial court, it argued that Tarver’s
hearsay statement to Batista should alternatively be admitted pursuant to
other hearsay exceptions. See Conn. Code Evid. § 8-3 (1) (D). Because our
conclusion that the statement was properly admitted as a statement against
penal interest is dispositive of this claim, we need not address those alterna-
tive grounds for admissibility.
5
Indeed, a trial against Tarver did eventually take place, leading to his
conviction of robbery, among other offenses. See State v. Tarver, 166 Conn.
App. 304, 306, 141 A.3d 940, cert. denied, 323 Conn. 908, 150 A.3d 683 (2016).
6
In deciding to admit the statement, the trial court was free to reject, as
a factual matter, the defendant’s assertion that Tarver was just ‘‘talking and
acting tough.’’
7
As previously discussed, the court in Bryant assessed the trustworthi-
ness of a hearsay statement against penal interest by reference to the subse-
quently committed crime. State v. Bryant, supra, 202 Conn. 698–701. If we
were evaluating its trustworthiness under the standard set forth in Ohio v.
Roberts, supra, 448 U.S. 56, however, a reference to the subsequently commit-
ted crime presumably would not pass muster because ‘‘evidence not directly
related to the circumstances surrounding the making of the statement cannot
be used to substantiate the statement’s trustworthiness.’’ State v. Merriam,
supra, 264 Conn. 644.
8
When Batista testified briefly as a witness at trial, he denied that Tarver
and/or the defendant were ever in the car with himself, Collazo, and Collazo’s
son on the evening in question.
9
In the defendant’s objection to the state’s motion in limine, he argued that
Farrow’s written statement describing the defendant’s alleged inculpatory
statement should not be admitted unless or until the telephone conversation
referenced by Farrow is properly authenticated by the court. As previously
discussed in footnote 2 of this opinion, we were not provided a transcript
of the court’s actual ruling on the motion in limine, to the extent that it was
on the record, and the motion does not contain a signed order by the court,
although the record does seem to indicate that the court ruled in the state’s
favor on the motion. In addition, during trial, defense counsel did object to
the admission of Farrow’s written statement on authentication grounds,
although his precise argument is unclear from the colloquy. That objection
was overruled. For these reasons, and the fact that the state is not prejudiced
by our consideration of it; see State v. Gaines, 257 Conn. 695, 713 n.13, 778
A.2d 919 (2001); we review this claim.
10
Pursuant to § 8-3 (1) of the Connecticut Code of Evidence, a statement
by a party opponent is admissible as an exception to the rule against hearsay.
The defendant does not challenge the admissibility of the alleged statement
on the ground that it does not fit within this hearsay exception.
11
The surprised reaction to which the defendant referred came out during
cross-examination of Collazo, when the following exchange took place
between defense counsel and Collazo:
‘‘Q. . . . And when [the defendant] got in the car, isn’t the first thing he
said is, what the fuck? Isn’t that what he said? Do you remember that?
‘‘A. Not that I can recall, no.
‘‘Q. If I showed you—let me see if this refreshes your recollection. . . .
‘‘Q. Did you take a look at that [statement you had given to the police],
ma’am?
‘‘A. Uh-huh.
‘‘Q. Okay. And you didn’t tell the police he said, what the fuck, didn’t you
tell them that?
‘‘A. It seems so.
‘‘Q. Right. Is that a yes?
‘‘A. Yes.
‘‘Q. Okay. And that’s the first thing he said, right?
‘‘A. I couldn’t recall—I can’t recall [the] chronological order of what
was said.
‘‘Q. And he didn’t say that to you, did he?
‘‘A. No.
‘‘Q. He said it to Mr. Tarver, didn’t he?
‘‘A. I—I guess that’s safe to assume. He wasn’t talking to me.’’