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State v. Mark

Court of Appeals of Connecticut

January 17, 2017

STATE OF CONNECTICUT
v.
MICHAEL MARK

          Argued October 27, 2016

         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 attorney, and Cynthia S. Serafini and Terence D. Mariani, senior assistant state's attorneys, for the appellee (state).

          Lavine, Beach and Keller, Js. [*]

          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), robbery 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 constitutional 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 reasonably 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. Specifically, 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 connection between the charged offenses and [the] other robberies . . . .'' 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 irrelevant, 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 locations 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 robberies 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 connection'' 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 evidence a portion of the autopsy report written by an investigator that contained witness statements that referenced the other robberies. The court excluded it because the medical examiner did not rely on it in ...


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