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State v. Torres

Court of Appeals of Connecticut

October 4, 2016


          Argued May 18, 2016

         Appeal from Superior Court, judicial district of Hartford, Dewey, J.

          James B. Streeto, senior assistant public defender, for the appellant (defendant).

          Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

          Keller, Mullins and Lavery, Js.


          LAVERY, J.

         The defendant, Julio Torres, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims (1) the court improperly admitted evidence of his prior misconduct, (2) the court provided an incorrect jury instruction regarding the standard of proof beyond a reasonable doubt, (3) the prosecutor engaged in impropriety during closing and rebuttal arguments, and (4) the court erred in failing to disclose the psychiatric records of a state's witness following the court's in camera inspection of the records. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On the night of October 9, 2009, the defendant, Jorge Zayas, Ricco Correa, and Jose Serrano were drinking alcohol on the porch behind the defendant's apartment in Hartford. At one point, the victim and Michael Rodriguez drove into the well lit parking lot adjacent to the defendant's apartment building. When the victim exited the car, the defendant, Zayas, Correa, and Serrano approached him, and an argument ensued. During the argument, Correa passed a gun to the defendant. After taking the gun, the defendant shot the victim once in the head at close range, killing him.[1]

         Rodriguez, who was standing in the parking lot when the shooting took place, did not see who shot the victim, but heard the gunshot and immediately turned around and saw that the defendant was the only person close to the victim's body. Seeing Zayas, Correa, and Serrano standing twenty to twenty-five feet away, Rodriguez fled the scene on foot. Correa, who had taken back the gun used to shoot the victim, pursued Rodriguez while the defendant, Zayas, and Serrano stood in the parking lot yelling, ‘‘Kill him. Kill him.''

         The defendant's girlfriend, J.R., [2] observed the whole incident from the doorway of the defendant's apartment. After witnessing the defendant shoot the victim, J.R. went back into the defendant's apartment and pretended to be asleep. The defendant ran into the apartment and stated to J.R., ‘‘I killed him. I killed him. Get up.'' The defendant told J.R. that the victim ‘‘came over there fighting for the turf and that he shot him.'' A few minutes later, the defendant received a phone call from Correa, who told the defendant that he had ‘‘mistakenly shot someone else thinking it was [Rodriguez], but that he was tossing the gun in the river.'' J.R. could not remember the type of gun the defendant used to shoot the victim.

         At approximately 1:15 a.m. on October 10, 2009, police arrived at the scene of the shooting in response to a 911 call. Officers found the victim's body in the parking lot behind the apartment building, bleeding from the right side of his head. The victim was pronounced dead at the scene. Susan Williams, an associate medical examiner for the state, determined that the cause of death was a single gunshot wound to the right side of the head. Williams estimated that, on the basis of soot and stippling patterns around the entrance wound, the muzzle of the gun was approximately six to ten inches from the right side of the victim's head when it was fired.

         On September 4, 2013, the state charged the defendant with murder in violation of § 53a-54a. On October 4, 2013, following a jury trial, the defendant was convicted of murdering the victim. On December 6, 2013, the court sentenced the defendant to a total effective sentence of fifty years incarceration. This appeal followed. Additional facts will be set forth as necessary to our assessment of the issues on appeal.


         The defendant first claims that the court abused its discretion by admitting evidence of his prior misconduct, namely, that he had possessed a revolver approximately three months prior to the murder, for the purpose of establishing that he had the means to shoot the victim. In support of this claim, the defendant argues that the evidence was not relevant and that its prejudicial effect outweighed its probative value. In response, the state argues that the evidence was relevant because it tended to show that the defendant had access to a weapon suitable for the commission of the murder and that this probative value outweighed the evidence's prejudicial effect. We agree with the state.

         The following additional facts and procedural history are relevant to this claim. Prior to trial, the state indicated it was seeking to admit the testimony of Eduardo Colon, who had been the victim of a prior drive-by shooting allegedly perpetrated by the defendant. On September 27, 2013, the court held a hearing during which the prior misconduct evidence was discussed. The state represented that Colon would testify that on July 29, 2009, the defendant had shot him with a chrome revolver during a nonfatal drive-by shooting for which the defendant was charged with first degree assault. The state then argued that Colon's testimony was relevant ‘‘to show that [the defendant] had the means to commit th[e] crime.'' In support of this argument, the state contended that Colon's testimony regarding the defendant's prior access to a revolver was probative because the witnesses in the present murder had observed the defendant carrying a gun and the lab analyses of bullet fragments recovered from the victim's body suggested that the bullet was fired from a revolver.

         In response, the defendant claimed that this evidence, ‘‘while potentially relevant, [was] more prejudicial than probative because of the credibility issues surrounding'' the witnesses to the July 19, 2009 incident. The defendant explained that ‘‘some other witness has said that they saw [the defendant] . . . the evening of the [victim's shooting] in possession of a revolver, '' and ‘‘to . . . try and buttress that witness with this remote event where those witnesses have credibility issues themselves'' would confuse the issues and may ‘‘portray [the defendant] . . . unfairly . . . not only in possession of a weapon, but using it for violent purposes.'' The defendant further emphasized that there was not an established connection between the revolver previously observed in the defendant's possession and the shooting of the victim here, and that the prior incident was remote in time from the present murder.

         The court ruled that the evidence was relevant, but placed limitations on its admission to alleviate the defendant's sole concern that undue prejudice could result from a detailed discussion of the prior possession. According to the court's ruling, the state could inquire only into whether Colon saw the defendant holding a revolver and could not probe into the circumstances and the assault surrounding that prior possession. Specifically, the court stated: ‘‘You don't have to mention what the event was or why they saw him [with the revolver], just that on a date there was a gun. Nothing about what the crime was. Nothing about any of that information. Just very simply, on that date. I'm going to allow that and that alone because it is probative.''

         At trial, and before the state called Colon as a witness, the defendant twice elicited testimony regarding the details of his prior possession of the revolver. First, through the cross-examination of Edwin Cardona, a state's witness and the defendant's parole officer, the defendant elicited testimony that Cardona had received a letter from Detective Andrew Jacobson of the Hartford Police Department that indicated that the defendant had been implicated in a nonfatal shooting that took place on July 19, 2009. The defendant again elicited evidence during his cross-examination of Jacobson that exceeded the bounds of the court's ruling limiting the admission of evidence regarding his prior possession of a revolver. Through Jacobson, the defendant brought out that he had been a suspect in the July 19, 2009 nonfatal shooting, and that the incident involved a drive-by shooting of two individuals who were selling heroin on the street.

         Also at trial, the state called Iris Sterling, the victim's girlfriend, as a witness. Sterling testified that, on the night of the murder, she saw the defendant inside his apartment holding a gun and saying, ‘‘let's play Russian roulette''-an act that requires placing a single cartridge in the cylinder of a revolver. Similarly, J.R. testified that, on the night of the murder, she saw the defendant inside his apartment holding a gun, that he was ‘‘always around guns, '' but that he did not keep guns inside his apartment. Additionally, the state's firearms examiner, James Stephenson, testified that the bullet fragments recovered from the victim were consistent with eight different kinds of revolvers and one kind of semiautomatic pistol.

         Following this evidence, the state represented that it intended to call Colon as a witness. In response, the defendant renewed his objection to Colon's testimony. The defendant argued that Colon's testimony was not relevant because the state had not established that the murder weapon had been a revolver. Specifically, the defendant argued that none of the state's witnesses at trial provided a description of the murder weapon, and J.R. could not recall the kind of gun the defendant used to shoot the victim. Given that the state's witnesses were unable to provide a description of the murder weapon, the defendant argued, Colon's testimony was not relevant because the state had failed to establish ‘‘a ...

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