State v. Rivera , 181 Conn. App. 215 ( 2018 )

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STATE OF CONNECTICUT v. ANGEL RIVERA
(AC 40233)
DiPentima, C. J., and Sheldon and Devlin, Js.
Syllabus
Convicted, after a jury trial, of capital felony and conspiracy to commit
murder arising out of the shooting deaths of two victims, the defendant
appealed. At trial, the trial court declined to admit into evidence certain
statements that the defendant’s coconspirator, M, had made in a tele-
phone conversation with his girlfriend in the presence of police officers
following M’s arrest on unrelated charges, during which M stated that
he had shot both victims. Because M did not testify at trial, the defense
sought to offer his statements through a police report. The trial court
determined that the portion of a police report containing M’s statements
was not admissible. Held that the trial court did not abuse its discretion
in declining to admit M’s statements under the residual exception to
the hearsay rule and concluding that the statements lacked the trustwor-
thiness and reliability that are required for admission under that excep-
tion: that court properly noted that multiple levels of hearsay involved
in M’s statements undermined their reliability, as defense counsel sought
to admit the statements through the testimony of one officer concerning
what another officer wrote in a report about what he had overheard M
say to his girlfriend during the phone call, and there was nothing in
the record about the circumstances under which the police officers
overheard the phone call; moreover, even if the exclusion of M’s state-
ments was improper, the defendant failed to demonstrate that any error
was harmful, as M’s statements, which were offered to demonstrate
that the defendant did not commit the crime, did not expressly exclude
the defendant as either an additional shooter or nonshooting participant
in the crime, the evidence at trial strongly implicated the defendant as
a participant and included eyewitness accounts and physical evidence,
and, thus, the exclusion of M’s statements did not substantially affect
the verdict.
Argued January 8—officially released April 17, 2018
Procedural History
Substitute information charging the defendant with
two counts of the crime of murder, and with the crimes
of capital felony and conspiracy to commit murder,
brought to the Superior Court in the judicial district of
Hartford and tried to the jury before the court, Dewey,
J.; verdict of guilty; thereafter, the court vacated and
dismissed the murder counts; judgment of guilty of capi-
tal felony and conspiracy to commit murder, from
which the defendant appealed. Affirmed.
Jennifer B. Smith, for the appellant (defendant).
Nancy L. Walker, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and John F. Fahey, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
DEVLIN, J. The defendant, Angel Rivera, appeals1
from the judgment of conviction, rendered following a
jury trial, of capital felony, in violation of General Stat-
utes (Rev. to 2011) §§ 53a-54b (7) and 53a-8 (a), and
conspiracy to commit murder, in violation of General
Statutes (Rev. to 2011) §§ 53a-54a (a) and 53a-48 (a).2
On appeal, the defendant claims that the trial court
abused its discretion by declining to admit certain oral
statements under the residual exception to the hearsay
rule. We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. At approximately 3 a.m. on January 1, 2011,
Yolanda Diaz was out with some friends in Hartford.
As she emerged from a limousine near Park Street,
another car pulled up and the defendant and his friend,
Jose Medina, also known as ‘‘Fat Boy,’’ got out. The
defendant asked Diaz if she knew where he could find
Lionel Roldan, her former boyfriend. The defendant
then slapped Diaz. Diaz noticed that the defendant’s
face was red, bloody and scratched, as if he had been
in a fight. After the defendant slapped her, Diaz ran
back to the limousine and called Roldan’s mother
because she was concerned that Roldan was in danger.
Diaz knew that, during the previous two months, Roldan
had been getting threatening phone calls from the defen-
dant and ‘‘Fat Boy.’’ She also knew that Roldan had a
gun like a ‘‘cowboy’s gun.’’
At some point between 3:30 and 4 a.m., Roldan and
his cousin, Luis Rivera,3 picked up Luis’ wife, Carmen
Pena, and her fourteen year old daughter, Irasema San-
chez, from the home of Pena’s sister on Babcock Street
in Hartford. Luis was driving his red Ford Expedition
and Roldan was sitting in the front passenger seat. As
Pena and Sanchez got into the Expedition, Sanchez
noticed that Luis’ hand was swollen. Luis explained that
‘‘he had a problem with the [defendant].’’
Upon arrival at Pena’s home on New Park Avenue
in Hartford, a black Lexus automobile pulled up behind
the Expedition. David Pabon previously had loaned his
black Lexus automobile to the defendant. The defen-
dant got out of the Lexus and walked toward the Expedi-
tion with a gun in his hand. When Sanchez alerted Luis
that the defendant was approaching, Luis told Sanchez
not to get out of the car. Pena told Luis to drive away.
Luis then drove away with Roldan, Pena and Sanchez
still in the Expedition. The defendant, driving the Lexus,
followed the Expedition as it drove away. When they got
to Francis Avenue, the defendant passed the Expedition
and stopped. Luis then stopped as well. The defendant
and Medina exited the Lexus and ran toward the Expedi-
tion, shooting at that vehicle.4 Luis tried to move the
Expedition but it became stuck in the snow. According
to Pena, Luis had been hit at this point.
As the defendant and Medina approached the Expedi-
tion, Pena and Sanchez exited the Expedition and hid
behind the driver’s side back tire. When the defendant
and Medina reached the passenger side of the Expedi-
tion, the defendant began beating Roldan and Medina
took Roldan’s gun. Luis got out of the Expedition,
walked a few steps and collapsed. Pena grabbed the
defendant by the shoulders and asked him ‘‘why [he
was] doing that.’’ Medina pointed a gun at Pena’s fore-
head and told Sanchez that if she ‘‘didn’t take [her]
mom to the other side of the truck he was going to
shoot her right there.’’ Pena then released the defendant
and she and Sanchez ran to Luis.
The defendant and Medina left the scene of the shoot-
ing in the Lexus, but returned shortly thereafter and
parked near the Expedition. They both pulled Roldan,
who was almost dead, out of the Expedition and left
him in the street. Medina then drove away in the Expedi-
tion and the defendant drove away in the Lexus.
At approximately 4:15 a.m. on January 1, 2011, Steven
Barone, a Hartford police officer, responded to a report
of a shooting on Francis Avenue. Upon arrival, he
observed ‘‘two victims in the street, both suffering from
apparent gunshot wounds.’’ Barone called for medical
personnel, who determined that Luis was dead. Roldan
was transported to Hartford Hospital, where he died.
The police recovered four nine millimeter shell casings
and one fired bullet on Francis Avenue. No firearms
were located at the scene. Once at the police station,
Pena and Sanchez each gave statements. They also inde-
pendently viewed photographic arrays and identified
the defendant and Medina as the men who had attacked
them on Francis Avenue. Prior to the night in question,
Sanchez had known the defendant ‘‘in passing’’ for two
and one-half years.
Later on January 1, 2011, Andrew Jacobson, a detec-
tive with the Major Crimes Division of the Hartford
Police Department, learned that the Ford Expedition
had been located in New Britain. He went to see the
vehicle and observed that ‘‘[t]he front passenger win-
dow was damaged. It was pretty much missing. It looked
like it had been shattered. And there was a defect on
the . . . outside of the front passenger door that is
consistent with maybe a gunshot.’’ Jacobson also saw
some blood inside the vehicle and noticed a strong odor
of gasoline. He arranged to have the vehicle towed to
the police station while he secured a warrant to search
the vehicle. The police recovered another nine millime-
ter shell casing on the floor of the Expedition below
the driver’s seat.
A few days later, police found the Lexus at the home
of Alejandro Falcon, the defendant’s friend. Falcon had
found a bullet fragment in the rear passenger door,
which he gave to Jacobson. The Lexus was swabbed
for DNA. The results of subsequent DNA testing were
consistent with the defendant’s being the source of the
DNA found on the steering wheel. The defendant also
could not be eliminated as a contributor to the DNA
mixtures found on both the driver’s interior door handle
and the gearshift of the Lexus.5
Medina was arrested later on January 1, 2011, on
unrelated charges following a car chase. By January 17,
2011, the police had secured an arrest warrant for the
defendant, who turned himself in to the police. He gave
a statement to Jacobson in which he denied involve-
ment in the shooting. According to the statement, the
defendant went to a club in Hartford at approximately
1 a.m. on January 1, 2011. At approximately 3 to 3:30
a.m., after he had left the club and was outside, he got
into a fight with ‘‘a guy I know as Luis or Tiko.’’ The
defendant stated that, after the fight, he returned to his
mother’s house, where he stayed until 7 or 8 a.m. He
stated that he ‘‘first heard about Tiko and another guy
being shot and killed on the news’’ and that ‘‘a guy I
know as Fat Boy got in a car chase and was later
arrested for . . . Tiko’s murder.’’ The defendant also
stated that he used to own a black Lexus but previously
had sold it to a man named ‘‘G.’’
Following a jury trial, the defendant was convicted
of capital felony, in violation of §§ 53a-54b (7) and 53a-
8 (a), two counts of murder, in violation of §§ 53a-54a
(a) and 53a-8 (a), and conspiracy to commit murder,
in violation of §§ 53a-48 (a) and 53a-54a (a). The court
vacated and dismissed the two counts of murder and
sentenced the defendant to life in prison without parole
on the charge of capital felony, followed by an addi-
tional ten years on the charge of conspiracy to commit
murder. The defendant then filed the present appeal.
Additional facts will be set forth as necessary.
The defendant argues that the trial court abused its
discretion in declining to admit Medina’s oral state-
ments under the residual exception to the hearsay rule.
The state counters that the court properly exercised its
discretion in declining to admit the statements under
the residual exception to the hearsay rule. The state
further argues that, even if the statements were admissi-
ble, the defendant failed to prove harm. We agree with
the state.
The following additional facts are necessary for the
resolution of this claim. At trial, the state called Jacob-
son as a witness. During cross-examination, defense
counsel inquired whether Jacobson had used state-
ments given by both the defendant and Medina in the
application for the defendant’s arrest warrant. As to any
statements from Medina, the state objected on hearsay
grounds. Defense counsel argued that the statements
were admissible under the coconspirator exception to
the hearsay rule. Outside the presence of the jury,
defense counsel read into the record the proffered state-
ments that were contained in a police report authored
by Officer R. Kevin Salkeld dated January 1, 2011. As
read into the record, the report stated: ‘‘Later in the
evening of January 1st of 2011, I was in Hartford Police
Major Crimes and spoke to Jose Medina. . . . Medina
repeatedly stated he just wanted to speak to his girl-
friend. If he spoke to his girlfriend, he would tell us
everything that happened that night. At approximately
21:01 hours, Detective Poma got in touch with Medina’s
girlfriend and asked if she would talk to him. I observed
Medina pick up the phone with a big smile on his face.
He told his girlfriend he was about to do twenty years
in prison. He told [her] to watch the news he had gotten
in a high speed chase with the police. He was smiling
and told her it was the most fun he had ever had and
he . . . again told her he was going to do twenty
years. . . .
‘‘He stated, ‘Because I fucking killed Paulo and Lionel.
He paused to state that, ‘They deserved it for punching
me in the face. See babe, that is what he gets for punch-
ing me and trying to rob me. I am going to do twenty
years for shooting those two fuckers. Wait for me baby.
I’ll be out in twenty years. . . . I love you babe and I
am going to do fifteen to twenty years and those fuckers
deserved it. No one punches me. I shot those moth-
erfuckers.’ ’’
The trial court ruled that this portion of Salkeld’s
report containing Medina’s statements was not admissi-
ble under the coconspirator exception because it was
not made in furtherance of the conspiracy and was
offered in a form involving multiple levels of hearsay.6
Later that day, the court sua sponte raised the question
of whether Medina’s statements were admissible under
the residual exception to the hearsay rule. In rejecting
its admissibility under the residual exception, the court
stated: ‘‘The trouble is reliability. It is so far removed.
It’s basically, the def—not even the defendant, ‘A’ told
an unknown in this, was overheard by ‘B,’ was relayed
by ‘C’ to ‘D,’ who told this witness. More than multiple
levels of hearsay, it’s the reliability of the original;
Medina told someone on the phone. There’s no indica-
tion that the circumstances of the statement were
reliable.’’
We initially set forth the applicable standard of
review. ‘‘A court’s conclusion as to whether certain
hearsay statements bear the requisite indicia of trust-
worthiness and reliability necessary for admission
under the residual exception to the hearsay rule is
reviewed for an abuse of discretion.’’ (Internal quota-
tion marks omitted.) State v. Myers, 126 Conn. App.
239, 247, 11 A.3d 1100, cert. denied, 300 Conn. 923, 14
A.3d 1006 (2011). In reviewing for an abuse of discre-
tion, we make ‘‘every reasonable presumption in favor
of upholding the trial court’s ruling.’’ State v. Bennett,
324 Conn. 744, 761–62, 155 A.3d 188 (2017); accord State
v. Heredia 139 Conn. App. 319, 331, 55 A.3d 598 (2012),
cert. denied, 307 Conn. 952, 58 A.3d 975 (2013).
‘‘The legal principles guiding the exercise of the trial
court’s discretion regarding the admission of hearsay
evidence under the residual exception are well estab-
lished. An [out-of-court] statement is hearsay when it
is offered to establish the truth of the matters contained
therein. . . . As a general rule, hearsay evidence is not
admissible unless it falls under one of several well estab-
lished exceptions. . . . The purpose behind the hear-
say rule is to effectuate the policy of requiring that
testimony be given in open court, under oath, and sub-
ject to cross-examination. . . . The residual, or catch-
all, exception to the hearsay rule allows a trial court
to admit hearsay evidence not admissible under any of
the established exceptions if: (1) there is a reasonable
necessity for the admission of the statement, and (2)
the statement is supported by the equivalent guarantees
of reliability and trustworthiness essential to other evi-
dence admitted under the traditional hearsay excep-
tions. . . . We have recognized that [t]he residual
hearsay exceptions [should be] applied in the rarest of
cases . . . .’’ (Citations omitted; internal quotation
marks omitted.) State v. Bennett, supra, 324 Conn. 762.
According to the defendant, there was a reasonable
necessity for the admission of Medina’s statements
because Medina had a fifth and fourteenth amendment
privilege against self-incrimination, rendering him
unavailable to testify.7 The defendant also contends that
Medina’s statements were reliable and trustworthy.
Specifically, he argues that Medina’s statements were
made in the presence of several police officers and
were recorded by a police officer in an official report.
He points out that the statements were made to his
girlfriend, a person with whom he purportedly had a
close relationship, just hours after the shooting at a
time when he was not under arrest for the murders of
Luis and Roldan. The defendant also argues that the
statements were highly inculpatory, in that Medina
admitted to killing both victims. We disagree.
Jacobson testified that when he went to talk to
Medina at the Hartford Police Department about the
murders, ‘‘he acted very erratically’’ and ‘‘his demeanor
and his reactions to different questions varied wildly
from crying to laughing to being serious.’’ When Jacob-
son talked to him about two people dying, Medina
removed his shoes and socks and started to pick lint out
of his toes. On the basis of his training and experience,
Jacobson concluded that Medina was under the influ-
ence of some type of drug and decided not to take a
statement from him. Further, these statements do not
exclude the defendant as being a participant in the
incident.
The court properly noted that the multiple levels of
hearsay involved in the statements undermined its relia-
bility.8 Specifically, defense counsel sought to question
Jacobson regarding a police report authored by Salkeld
about what Salkeld overheard Medina tell his girlfriend.9
See State v. Heredia, supra, 139 Conn. App. 331 (no
abuse of discretion in excluding offered testimony that
‘‘constituted hearsay within hearsay and was corrobo-
rated only by other hearsay statements rather than
established facts’’). More significantly, however, there
is nothing in the record about the circumstances under
which the police officers overheard the phone call.
The residual hearsay exception is designed to permit
the admission of hearsay evidence that is supported by
‘‘equivalent guarantees of trustworthiness and reliabil-
ity that are essential to other evidence admitted under
traditional exceptions to the hearsay rule.’’ Conn. Code
Evid. § 8-9 (2). On the basis of our review of the record,
we cannot say that the trial court abused its discretion
in concluding that Medina’s statements lacked the trust-
worthiness and reliability that are required for admis-
sion under the residual hearsay exception.10
Finally, even if the exclusion of Medina’s statements
was improper, such error would be harmless. ‘‘When
an improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [A] nonconstitu-
tional error is harmless when an appellate court has a
fair assurance that the error did not substantially affect
the verdict. . . . [Our] determination [of whether] the
defendant was harmed by the trial court’s . . . [eviden-
tiary ruling] is guided by the various factors that we have
articulated as relevant [to] the inquiry of evidentiary
harmlessness . . . such as the importance of the . . .
testimony in [to the defense], whether the testimony
was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony . . . on
material points . . . and, of course, the overall
strength of the state’s case. . . . Most importantly, we
must examine the impact of the evidence on the trier
of fact and the result of the trial.’’ (Internal quotation
marks omitted.) State v. Rodriguez, 311 Conn. 80, 89,
83 A.3d 595 (2014).
In the present case, the purpose of the offered state-
ments was not to show that Medina committed the
crime, but rather that the defendant did not commit the
crime. In that regard, the statements do not expressly
exclude the defendant as a participant. Medina’s state-
ments are consistent with the defendant being an addi-
tional shooter along with Medina as well as being a
nonshooting accessory. Moreover, the evidence at trial
strongly implicated the defendant. Approximately thirty
minutes before the shootings, the defendant and Medina
approached Diaz looking for Roldan. The defendant’s
face was red, bloody and scratched. Diaz knew that,
during the previous two months, Roldan had received
threatening phone calls from the defendant and Medina.
Upon entering the Expedition, Sanchez noticed that
Luis’ hand was swollen and he explained that he had
had a problem with the defendant. When Luis, Roldan,
Sanchez and Pena reached Pena’s home, Pena saw a
black Lexus pull up behind them. The defendant then
got out of the Lexus holding a gun. After Luis drove
away a chase ensued. On Francis Avenue, after the
Expedition became stuck in the snow, Sanchez and
Pena both testified that they saw the defendant and
Medina run to the Expedition.
In her statement to the police, Sanchez stated that
the defendant and Medina both had guns out and started
shooting six or seven times.11 Pena and Sanchez inde-
pendently viewed photographic arrays and identified
the defendant and Medina as the men who attacked
them. Sanchez had known the defendant in passing for
two and one-half years. A few days after the crime, the
police found the Lexus. It had a bullet fragment in the
rear passenger door. The owner of the Lexus testified
that he had loaned the car to the defendant a week
earlier. DNA results were consistent with the defendant
being the source of the DNA on the steering wheel and
he could not be eliminated as a contributor to the DNA
mixtures from the driver’s interior door handle and
gearshift of the Lexus.
On the basis of our review of this record, we have a
fair assurance that the exclusion of Medina’s statements
did not substantially affect the verdict. The defendant,
therefore, has failed to demonstrate that any error
was harmful.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant originally appealed to our Supreme Court pursuant to
General Statutes § 51-199 (b) (3). Thereafter, our Supreme Court transferred
the appeal to this court pursuant to § 51-199 (c) and Practice Book § 65-1.
2
Hereinafter, all references to §§ 53a-54b and 53a-54a are to the 2011
revision of the statutes.
3
Luis Rivera is not related to the defendant. To avoid confusion, we will
refer to Luis Rivera as ‘‘Luis’’ in this opinion.
4
Sanchez testified that she was not sure if the defendant had a gun at
this time. In her statement to the police made on January 1, 2011, however,
she stated that the defendant and Medina both had guns out and both started
shooting right away, shooting six or seven times. Pena testified that the
defendant was holding a gun when he approached the Expedition on New
Park Avenue. The state stipulated, however, that Pena gave written state-
ments to the police on January 1, 2011, and January 25, 2011, and said
nothing in either statement about the defendant having a gun.
5
Luis, Roldan and Medina were eliminated as contributors to the DNA
mixture collected from the driver’s interior door handle. Luis and Medina
were eliminated as contributors to the DNA mixture found on the gearshift.
The defendant and Roldan could not be eliminated as contributors to the
DNA mixture collected from the gearshift.
6
The defendant does not challenge the ruling that the statements were
inadmissible under the coconspirator exception.
7
In holding that Medina’s statements were unreliable, the trial court did
not consider whether there was a reasonable necessity for the admission
of the statements. It is undisputed, however, that Medina, whose case was
pending on appeal, was not available to testify because he had asserted a
fifth amendment privilege.
8
‘‘Hearsay within hearsay is admissible only if each part of the combined
statements is independently admissible under a hearsay exception.’’ Conn.
Code Evid. § 8-7.
9
The defendant urges this court to take judicial notice of Jacobson’s
testimony from Medina’s trial, in which Jacobson testified that he was
present when Medina called his girlfriend. According to the defendant, this
testimony would establish that there was only one level of hearsay, as
Jacobson overheard Medina’s phone call with his girlfriend. The defendant,
however, has cited no authority indicating why judicial notice is appropriate
under these circumstances.
10
We note that, in response to a question raised at oral argument, the
defendant filed a letter, pursuant to Practice Book § 67-10, indicating that
this court can consider, sua sponte, whether Medina’s statements were
admissible under the business record exception or the statement against
penal interest exception to the hearsay rule. We decline to consider whether
Medina’s statements were admissible under these exceptions as these
grounds were not raised in the trial court. Review of the admissibility of
the statements on these grounds would be contrary to the established stan-
dard of review of evidentiary claims. See State v. Miranda, 327 Conn. 451,
464–65, 174 A.3d 770 (2018) (‘‘This court is not bound to consider claims
of law not made at the trial. . . . Once counsel states the authority and
ground of [the] objection, any appeal will be limited to the ground asserted.
. . . 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.’’ [Citations omitted;
emphasis omitted; internal quotation marks omitted.]).
11
A redacted portion of this statement was admitted into evidence pursu-
ant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S.
994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).