State v. Mark , 170 Conn. App. 254 ( 2017 )

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STATE OF CONNECTICUT v. MICHAEL MARK
(AC 38566)
Lavine, Beach and Keller, Js.*
Argued October 27, 2016—officially released January 17, 2017
(Appeal from Superior Court, judicial district of
Waterbury, Cremins, J.)
Alice Osedach, assistant public defender, for the
appellant (defendant).
Michele C. Lukban, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and Cynthia S. Serafini and Terence D. Mariani,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
LAVINE, J. The defendant, Michael Mark, appeals
from the judgment of conviction, rendered after a jury
trial, of one count each of murder in violation of General
Statutes § 53a-54a (a), felony murder in violation of
General Statutes § 53a-54c, robbery in the first degree
in violation of General Statutes § 53a-134 (a) (1), rob-
bery in the first degree in violation of § 53a-134 (a)
(3), and conspiracy to commit robbery in violation of
General Statutes §§ 53a-48 (a) and 53a-134.1 On appeal,
the defendant claims that the trial court (1) abused its
discretion by excluding evidence that supported his
third party culpability defense, and (2) violated his con-
stitutional right against double jeopardy guaranteed by
the fifth and fourteenth amendments to the United
States constitution and article first, §§ 8 and 9, of the
constitution of Connecticut. We affirm the judgment of
the trial court.
This appeal arises from the robbery and murder of
Arnaldo Gonzalez, the victim, who was bludgeoned to
death with a rock. The state’s separate appeal, State v.
Mark, 170 Conn. App. 241, A.3d (2017), also
released today, sets forth the facts that the jury reason-
ably could have found and the pertinent procedural
history. Additional facts pertaining to the defendant’s
claims will be set forth as necessary.
I
First, the defendant claims that the trial court abused
its discretion by granting the state’s motion in limine
to preclude him from presenting evidence of four other
robberies that took place in Waterbury at approximately
the same time as the robbery in the present case. Specif-
ically, the defendant argues that the evidence supported
his third party culpability defense and that similarities
among all of the robberies ‘‘establish[ed] a connection’’
between the perpetrators of the other robberies and
the robbery in the present case. The state argues that
the trial court did not abuse its discretion because the
proffered evidence ‘‘failed to establish a direct connec-
tion between the charged offenses and [the] other rob-
beries . . . .’’ We agree with the state.
The following additional facts are relevant to this
claim. On April 21, 2014, the day before the trial began,
the state filed a motion in limine asking the court to
preclude the defense from introducing into evidence
any testimony regarding four other robberies that had
occurred in Waterbury on November 1 and 2, 2010. The
state also moved to require the defendant to make an
offer of proof prior to the introduction of any evidence
that would support a third party culpability defense,
namely, that any evidence that the perpetrators of the
four other robberies committed the robbery and murder
of the victim. The state argued such evidence was irrele-
vant, not probative, and prejudicial. The court reserved
its decision on the motion in limine.
Throughout the state’s case-in-chief, the defendant
repeatedly attempted to put into evidence proof of the
other robberies. First, during cross-examination of the
state’s first witness, David Vaught, who maintained
maps for the city of Waterbury, the defendant attempted
to introduce into evidence maps that showed the loca-
tions of four other robberies that took place in the early
morning of November 2, 2010. Outside the presence of
the jury, the defendant stated that he had subpoenaed
police reports of other robberies and argued that the
maps of the locations of the robberies were relevant
to show the close proximity of the other robberies to
the robbery in the present case. The defendant argued
that there were similarities among the robberies that
made evidence of the other robberies relevant to his
third party culpability defense.2 The robberies were
claimed to be similar in that: (1) they took place at
approximately the same time and in the same vicinity
as the robbery in the present case, (2) they all involved
an assault on a victim, (3) the other robberies were
committed by three people with a long history of
assaults, (4) police found a cigarette butt in the van
that the perpetrators of the four robberies used that
was the same brand of cigarette found at the murder
scene, and (5) the police initially investigated all of
the robberies as having been perpetrated by the same
individuals. He argued that these facts, which were not
yet in evidence, tended to show that a third party or
parties, namely, the perpetrators of the other robberies,
committed the robbery and murder of the victim. The
defendant did concede, however, that there was no
DNA evidence linking the perpetrators of the four rob-
beries to the crime scene in the present case. The court
sustained the state’s objection on the ground that the
maps were irrelevant because it did not ‘‘see the connec-
tion’’ between the four other robberies and the robbery
in the present case. It did state, however, that it would
reconsider its ruling if there was ‘‘further evidence
developed that [made the maps] relevant.’’
Second, the court conducted an in-camera inspection
of the police reports the defendant subpoenaed to
ensure that they were properly redacted pursuant to
Practice Book § 4-7 and General Statutes § 1-210. The
next day, the court provided copies of the reports to
the parties with the appropriate redactions. It redacted
the witness statements within the police reports that
referenced the other robberies because defense counsel
did not give a ‘‘further offer of proof with respect to
the connection that could or does exist between these
incidents and the matter here.’’
Third, the defendant attempted to introduce into evi-
dence a portion of the autopsy report written by an
investigator that contained witness statements that ref-
erenced the other robberies. The court excluded it
because the medical examiner did not rely on it in
determining the victim’s cause of death and because it
constituted hearsay.
Finally, defense counsel sought to elicit testimony
on cross-examination from Vanessa Vazquez that she
saw one of the robberies take place at a certain time
and at a certain location because this testimony would
undermine the state’s timeline of events. The court sus-
tained the state’s relevancy objection because ‘‘raising
issues of the other robberies, even though they might
be probative of the time that the individuals here were
picked up . . . is likely to cause confusion for the
jury,’’ and ‘‘absent some kind of physical connection
between this incident and the other incidents, [the court
is] not going to allow that line of questioning.’’
On April 29, 2014, the defendant filed an objection
to the state’s motion in limine and gave an offer of
proof in support of his third party culpability defense.
The offer of proof included police incident reports for
the other assaults and robberies, certified court reports
relating to the cases involving the perpetrators responsi-
ble for the other robberies, and laboratory reports
involving tests on evidence recovered from the other
robberies. On April 30, 2014, after reviewing the defen-
dant’s objection and hearing arguments by the prosecu-
tor and the defense, the court granted the state’s motion
in limine. The court explained that ‘‘the defendant has
failed to offer any evidence directly linking a third party
to the commission of the robbery at issue’’ and that
‘‘[t]he fact that other robberies occurred on the same
date and in Waterbury and were within the central city
area raises, at most, a bare suspicion that another per-
son may have committed the subject robbery.’’
On appeal, the defendant argues that evidence of the
four robberies should have been admitted because such
evidence was relevant in giving ‘‘the jury an alternative
theory as to who committed the crime.’’ He argues that
the ‘‘substantial’’ amount of evidence of the other rob-
beries and the number of similarities between the other
robberies and the robbery in the present case ‘‘does
more than raise a bare suspicion that a third party
committed the offense; it establishes a direct connec-
tion to the instant case.’’3 When the court excluded this
evidence, he claims, it foreclosed his opportunity to
present his third party culpability defense, which
deprived him of his constitutional right to present a
defense.
The defendant opines that the court violated his con-
stitutional rights. This matter is an evidentiary one,
however, and will be treated as such. See State v. Rosa-
rio, 99 Conn. App. 92, 106, 912 A.2d 1064 (‘‘[a]lthough
the defendant frames the [third party culpability] issue
on appeal as a constitutional violation, our ultimate
determination rests on evidentiary grounds’’), cert.
denied, 281 Conn. 925, 918 A.2d 276 (2007). ‘‘The admis-
sibility of evidence of third party culpability is governed
by the rules relating to relevancy. . . . No precise and
universal test of relevancy is furnished by the law, and
the question must be determined in each case according
to the teachings of reason and judicial experience. . . .
The trial court has wide discretion in its rulings on
evidence and its rulings will be reversed only if the
court has abused its discretion or an injustice appears
to have been done.’’ (Internal quotation marks omitted.)
State v. Eagles, 74 Conn. App. 332, 337, 812 A.2d 124(2002), cert. denied, 262 Conn. 953, 818 A.2d 781 (2003).
‘‘ ‘Relevant evidence’ means evidence having any ten-
dency to make the existence of any fact that is material
to the determination of the proceeding more probable
or less probable than it would be without the evidence.’’
Conn. Code Evid. § 4-1. ‘‘[R]elevant evidence is evidence
that has a logical tendency to aid the trier in the determi-
nation of an issue. . . . One fact is relevant to another
if in the common course of events the existence of one,
alone or with other facts, renders the existence of the
other either more certain or more probable. . . . Evi-
dence is irrelevant or too remote if there is such a want
of open and visible connection between the evidentiary
and principal facts that, all things considered, the for-
mer is not worthy or safe to be admitted in the proof
of the latter.’’ (Internal quotation marks omitted.) State
v. West, 274 Conn. 605, 625, 877 A.2d 787, cert. denied,
546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
Specifically with regard to evidence of third party
culpability, our Supreme Court has ‘‘recognized consis-
tently that a defendant has a right to introduce evidence
that indicates that someone other than the defendant
committed the crime with which the defendant has been
charged. . . . The defendant must, however, present
evidence that directly connects a third party to the
crime.’’ (Emphasis added; internal quotation marks
omitted.) State v. Smith, 280 Conn. 285, 303–304, 907
A.2d 73 (2006). ‘‘[E]vidence that establishes a direct
connection between a third party and the charged
offense is relevant to the central question before the
jury, namely, whether a reasonable doubt exists as to
whether the defendant committed the offense. Evi-
dence that would raise only a bare suspicion that a
third party, rather than the defendant, committed the
charged offense would not be relevant to the jury’s
determination.’’ (Internal quotation marks omitted.)
State v. Baltas, 311 Conn. 786, 810–11, 91 A.3d 384(2014). ‘‘It is not enough to [simply] show that another
had the motive to commit the crime . . . .’’ (Internal
quotation marks omitted.) State v. Hedge, 297 Conn.
621, 634–35, 1 A.3d 1051 (2010). Rather, evidence of
motive may be relevant to establishing a third party
culpability defense only ‘‘if other connecting evidence
exists.’’ State v. Eagles, supra, 74 Conn. App. 339.
We conclude that the court did not abuse its discre-
tion in granting the state’s motion in limine to preclude
the defendant from introducing evidence that supported
a third party culpability defense. The defendant failed
to offer any evidence that directly connected the perpe-
trators of the four robberies to the robbery in the pre-
sent case. Instead, all of the evidence the defendant
sought to admit merely established that other robberies
took place at approximately the same time and in the
same vicinity as the robbery in the present case. Thus,
without any evidence that directly connects the perpe-
trators of the other robberies to the robbery in the
present case, evidence of similarities between the other
robberies and the robbery in the present case is not
sufficient to support a third party culpability defense.
See State v. Ferguson, 260 Conn. 339, 348, 355, 796
A.2d 1118 (2002) (photograph depicting third party who
looked similar to defendant and who was near crime
scene at approximately the same time that crime took
place was inadmissible without other evidence directly
connecting third party to crime); State v. Ortiz, 252
Conn. 533, 564–65, 747 A.2d 487 (2000) (while proffered
evidence may have provided third party with motive
and means to commit charged crime, defendant failed
to establish direct connection between third party and
charged crime). Admitting such evidence would prompt
the jury to engage in unwarranted speculation. The trial
court properly granted the state’s motion in limine.
II
The defendant’s second claim is that his convictions
of two counts of robbery in the first degree violate his
constitutional right not to be placed in double jeopardy
as guaranteed by the fifth and fourteenth amendments
to the United States constitution and article first, §§ 8
and 9, of the constitution of Connecticut. Specifically,
the defendant claims that § 53a-134 (a) (1) is a lesser
included offense of § 53a-134 (a) (3) because he could
not have caused serious injury to the victim without
first using a dangerous instrument. The state argues
that the charges are separate and distinct offenses
because ‘‘it is possible to commit an offense under
§ 53a-134 (a) (3) without first having committed an
offense under § 53a-134 (a) (1).’’ We agree with the state.
The defendant did not raise this claim at trial, and
it, therefore, is not preserved for review. He seeks
review of his unpreserved claim pursuant to State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
‘‘[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 constitu-
tional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In
the absence of any one of these conditions, the defen-
dant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) Id.; see also In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1118 (2015) (modifying third prong of
Golding by eliminating word ‘‘clearly’’ before words
‘‘exists’’ and ‘‘deprived’’). Because the record is ade-
quate for review and the claim of a violation against
double jeopardy alleges a fundamental right, the defen-
dant’s claim is reviewable under Golding. We conclude,
however, that the defendant’s claim fails because a con-
stitutional violation does not exist.
The following additional facts are relevant to this
claim. Section 53a-134 provides in relevant part: ‘‘(a) A
person is guilty of robbery in the first degree when . . .
he or another participant in the crime: (1) Causes seri-
ous physical injury to any person who is not a partici-
pant in the crime . . . or (3) uses or threatens the use
of a dangerous instrument . . . .’’
The substitute information filed by the state alleged in
relevant part: ‘‘Count Three: And the above said senior
assistant state’s attorney further accuses and charges
that the defendant said Michael Mark did commit the
crime of Robbery in the First Degree in violation of
. . . § 53a-134 (a) (1), and charges that, on or about
November 2, 2010, in the early morning hours, at or
near 424 Baldwin Street, in the City of Waterbury, Con-
necticut, the said Michael Mark, in the course of com-
mitting a robbery, or of immediate flight therefrom,
he or another participant in the crime caused serious
physical injury to any person who was not a participant
in the crime, to wit: Arnaldo Gonzalez.
‘‘Count Four: And the above said senior assistant
state’s attorney further accuses and charges that the
said Michael Mark did commit the crime of Robbery in
the First Degree in violation of . . . § 53a-134 (a) (3),
and charges that, on or about November 2, 2010, in the
early morning hours, at or near 424 Baldwin Street, in
the City of Waterbury, Connecticut, the said Michael
Mark, in the course of committing a robbery, or immedi-
ate flight therefrom, he or another participant in the
crime used and threatened the use of a dangerous
instrument, to wit: a rock and/or a shod foot.’’
The jury found the defendant guilty on all counts,
including both counts of robbery in the first degree.
The court sentenced the defendant for his conviction
under § 53a-134 (a) (1) to twenty years imprisonment
and for his conviction under § 53a-134 (a) (3) to twenty
years imprisonment. The court sentenced the defendant
to forty-eight years imprisonment for the murder con-
viction and ordered the robbery convictions to run con-
currently with the murder conviction.
On appeal, the defendant argues that ‘‘the [two rob-
bery in the first degree] counts are one in the same and
conviction and punishment on both violated the double
jeopardy clause.’’ Because the autopsy report showed
that the victim died from blunt force trauma to his head,
it was impossible for the defendant to cause a serious
physical injury to the victim without first using a danger-
ous instrument. The defendant argues, therefore, that
his ‘‘conviction for robbery in the first degree, § 53a-
134 (a) (1) was a lesser included offense of the convic-
tion for robbery in the first degree, § 53a-134 (a) (3).’’
Thus, the court should vacate the defendant’s convic-
tion on the lesser included offense. We do not agree.
‘‘The standard of review to determine whether the
defendant’s constitutional right against double jeopardy
was violated is de novo because it is a question of law.’’
(Internal quotation marks omitted.) State v. Guzman,
125 Conn. App. 307, 319, 7 A.3d 435 (2010), cert. denied,
300 Con. 902, 12 A.3d 573 (2011). ‘‘The fifth amendment
to the United States Constitution provides in relevant
part: No person shall . . . be subjected for the same
offense to be twice put in jeopardy of life or limb . . . .
The double jeopardy clause of the fifth amendment is
made applicable to the states through the due process
clause of the fourteenth amendment.’’ (Internal quota-
tion marks omitted.) State v. Alvaro F., 291 Conn. 1,
5–6, 966 A.2d 712 (2009). ‘‘In the context of a single
trial, the double jeopardy analysis is a two part process.
. . . First, the charges must arise out of the same act
or transaction. Second, it must be determined whether
the charged crimes are the same offense.’’ (Citation
omitted; internal quotation marks omitted.) State v.
McColl, 74 Conn. App. 545, 567, 813 A.2d 107, cert.
denied, 262 Conn. 953, 818 A.2d 782 (2003).
With regard to the second step, ‘‘[t]raditionally we
have applied the [test set out in Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306(1932)] to determine whether two statutes criminalize
the same offense . . . . Under that test, where the
same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one,
is whether each provision requires proof of a fact which
the other does not. . . . This test is a technical one
and examines only the statutes, charging documents,
and bill of particulars as opposed to the evidence pre-
sented at trial. . . . Thus, [t]he issue, though essen-
tially constitutional, becomes one of statutory
construction. . . . [I]f two offenses stand in the rela-
tionship of greater and lesser and included offense,
[however] [t]he greater offense is . . . by definition
the same for purposes of double jeopardy as any lesser
included offense included in it. . . . If it is possible to
commit the greater offense in the manner described
in the information without having first committed the
lesser offense, then the lesser is not an included
offense.’’ (Citation omitted; internal quotation marks
omitted.) State v. Underwood, 142 Conn. App. 666, 681–
82, 64 A.3d 1274, cert. denied, 310 Conn. 927, 78 A.3d
146 (2013).
‘‘Our analysis of double jeopardy claims does not
end, however, with a comparison of the offenses. The
Blockburger test is a rule of statutory construction, and
because it serves as a means of discerning [legislative]
purpose, the rule should not be controlling where . . .
there is a clear indication of contrary legislative intent.’’
(Internal quotation marks omitted.) State v. Perez, 78
Conn. App. 610, 641, 828 A.2d 626 (2003), cert. denied,
271 Conn. 901, 859 A.2d 565 (2004).
In the present case, the first prong of the double
jeopardy test is satisfied because the defendant’s con-
viction of two counts of robbery in the first degree
arose out of the same act or transaction: the defendant
robbed the victim and killed him with a rock on Novem-
ber 2, 2010. The defendant’s claim, however, does not
satisfy the second prong because under Blockburger,
the two charges constitute separate offenses in that
each provision requires proof of a fact which the other
does not.
To convict the defendant under § 53a-134 (a) (1), the
state was required to prove that the defendant actually
caused ‘‘serious physical injury’’ to the victim, who was
‘‘not a participant in the crime.’’ The state was not
required to prove that the injury was caused by a danger-
ous instrument. To convict the defendant under § 53a-
134 (a) (3), the state needed to prove that the defendant
‘‘used or threatened the use of a dangerous instrument.’’
The state was not required to prove that the victim
actually suffered serious physical injury. Thus, each of
the counts in the information required that the state
prove an element of a crime that the other crime does
not include. Because each of the charged offenses
require proof of an element that the other does not,
we conclude that the defendant’s right against double
jeopardy for the same offense was not violated.
Furthermore, the defendant failed to meet his burden
of proof demonstrating a clear legislative intent that
contradicts the result of the Blockburger test. In support
of his argument, the defendant cites to State v. McColl,
supra, 74 Conn. App. 572, stating in his brief that ‘‘[s]ince
robbery is a crime against the person the legislature
did not intend multiple punishments for the single rob-
bery of one victim.’’ Yet, this court has recognized that
‘‘the legislature has shown that it knows how to bar
multiple punishments expressly when it does not intend
such punishment’’; (internal quotation marks omitted)
State v. Underwood, supra, 142 Conn. App. 684; and
that ‘‘[§] 53a-134 contains no language indicating the
legislature’s intent to bar multiple punishments . . . .’’
Id.; see State v. Hill, 237 Conn. 81, 100, 675 A.2d 866(1996) (when ‘‘each of the two charges requires proof
of a fact that the other does not, it may be presumed
that the legislature did not intend to prohibit multiple
punishments for the conduct underlying the two
charges’’). The defendant’s claim, therefore, fails, and
he cannot prevail on his unpreserved double jeop-
ardy claim.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The jury also found the defendant guilty of one count of tampering with
evidence in violation of General Statutes (Rev. to 2010) § 53a-155 (a). During
sentencing, the trial court granted the defendant’s motion for judgment of
acquittal as to this count. The state appealed from the judgment of acquittal,
and this court reversed the trial court’s judgment. See State v. Mark, 170
Conn. App. 241, A.3d (2017).
2
The defendant also argued that evidence of the four robberies was rele-
vant in discrediting the state’s timeline of the events because defense counsel
anticipated that Vanessa Vazquez, a state’s witness, would testify that she
saw one of the robberies take place at a time that made the state’s timeline
inconsistent with the time of the victim’s death.
3
The defendant also sets forth additional arguments that we deem to be
unpersuasive. He argues that ‘‘the state’s circumstantial case [which] relied
heavily on the credibility of its witnesses . . . increased the relevancy’’
of the proffered evidence. Without any evidence that establishes a direct
connection between the third party and the robbery in the present case,
however, any weaknesses in the state’s case do not render evidence of the
other robberies more relevant to prove ‘‘that others had both the motive
and opportunity to commit the crime in this case.’’ The defendant has failed
to cite to any case law that indicates otherwise.
In addition, the defendant argues that the trial court used an improper
standard in ruling on its evidentiary claims when it stated that the defendant
was required to show a ‘‘physical connection’’ between the other robberies
and the robbery in the present case. While the court did in fact incorrectly
state that the defense was required to show a ‘‘physical connection’’ between
the third party and the robbery in the present case, a review of the entire
record gives us no indication that the court improperly foreclosed the defen-
dant from introducing evidence that directly connected the robberies to the
one in the present case. In its ruling on the state’s motion in limine, moreover,
the court properly stated that defense counsel failed to show a ‘‘direct
connection’’ between the proffered evidence and the robbery in the pre-
sent case.