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State v. Bennett

Supreme Court of Connecticut

March 14, 2017

STATE OF CONNECTICUT
v.
ERICK BENNETT

          Argued November 8, 2016

          Erick Bennett, self-represented, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

          Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, former state's attorney, and Elizabeth Baran, former senior assistant state's attorney, for the appellee (state).

          Rogers, C. J., and Palmer, McDonald, Espinosa and Robinson, Js.

          OPINION

          McDONALD, J.

         The defendant, Erick Bennett, directly appeals to this court following his conviction of murder in violation of General Statutes (Rev. to 2009) § 53a-54a. The defendant claims that there were numerous defects in his trial, the principal of which was that the trial court violated his constitutional rightto present a defense by improperly refusing either to issue a summons to secure the attendance of a material witness in support of a theory of third-party culpability, or to allow the defendant to introduce that witness' statement to the police in lieu of her live testimony.[1] We conclude that defense counsel's failure to locate the out-of-state witness with any reasonable degree of certainty precludes relief regarding the issuance of a summons for the witness and that none of the defendant's remaining claims warrant reversal of the trial court's judgment of conviction.

         The jury reasonably could have found the following facts. On the evening of July 10, 2009, the victim, Willie Brown, and his girlfriend, Veronica Arroyo, attended a social gathering. Around 9 p.m., the defendant and his sister, who were casual friends with Arroyo, picked up Arroyo to go to Raffy's Cafe´ Bar in Meriden.

         Upon arriving outside the bar, Arroyo saw Christopher Benjamin, a close friend of Brown's, and greeted him. Brown called Arroyo on her cell phone, and after she told him that Benjamin was at the bar, Brown prevailed upon Benjamin to pick him up and bring him there despite Arroyo's plea to Benjamin that he not do so because she was concerned that Brown had been drinking and would get into trouble.

         After Brown arrived, he and Arroyo began to argue while they and others stood in the parking lot behind the bar. When they first started to argue, the defendant came over and told Brown to ‘‘chill out, '' which made Brown angry. Benjamin stepped in between the two men and the situation deescalated, but not before Benjamin saw the defendant holding a pocketknife at his side. After Arroyo and Brown recommenced arguing, Benjamin walked over to the couple. Arroyo then began hitting and cursing at Benjamin for bringing Brown to the bar. Brown pried Arroyo away from Benjamin, but then began arguing with Arroyo again in the vicinity of the defendant. Benjamin heard the defendant state: ‘‘I'm not here for this . . . . I don't give a fuck. I'm going [to] kill him. I don't care.'' The defendant then held a knife up to Benjamin's neck, threatening: ‘‘[I]f I really wanted to kill you, I can right now.'' Benjamin walked away, and Arroyo and Brown momentarily stopped arguing.

         After a third argument commenced between Arroyo and Brown, the defendant and Brown exchanged words. The two men came face-to-face, and the defendant pushed Brown to the ground. When Brown stood up, the defendant stabbed him in the chest several times, inflicting mortal wounds. Brown initially was able to get to his feet, but stumbled around and then collapsed to the ground. Benjamin heard a woman screaming and ran over to Brown, becoming hysterical when he saw how badly Brown was injured.

         The defendant and his sister fled the scene in his vehicle. He spent the night at his sister's home and left for New York City the following day, returning to Meriden several weeks later. The police obtained evidence inculpating the defendant shortly after the crime. Arroyo and Benjamin gave statements identifying the defendant as the person who had stabbed Brown. Another witness to the incident, Brandon Hogue, described the person who stabbed Brown as a man in a red or purple polo shirt, which was consistent with the clothing worn by the defendant that night. Although the police did not recover the entire knife, they found two thumb studs-the part of a folding knife used to open the blade-in the defendant's vehicle with blood on them that was consistent with Brown's DNA profile.

         The defendant testified at trial. He denied stabbing Brown and claimed not to know who had done so because he had been walking to his vehicle when the stabbing occurred. The defendant suggested through the testimony of the mother of several of his children that the police had planted the knife thumb studs in his vehicle.

         The defendant attempted unsuccessfully to obtain and introduce certain evidence in support of a theory that Benjamin or some unidentified Spanish speaking man or men had stabbed Brown, as well as evidence of police bias against him. Following the jury's verdict of guilty on the murder charge, the defendant also unsuccessfully sought permission to file a late motion for a new trial on the basis of a newly published report finding certain defective procedures in the state forensic laboratory. Those rulings, as well as challenges to the propriety of certain statements made by the prosecutor during cross-examination and closing arguments, are the subject of the present appeal.

         I

         The defendant's principal claim is that he was deprived of his constitutional rights to present a defense and to compulsory process insofar as he was unable to offer testimony from Jennifer Matias, a witness in support of his defense of third-party culpability, or Mat-ias' statement she made to the police. Specifically, the defendant contends that the trial court improperly (1) denied his request for a material witness warrant to obtain Matias' appearance from out of state, and (2) denied admission of a recorded statement that Matias had given to the police. We disagree.

         The record reveals the following additional undisputed facts. Matias made a 911 call to the police regarding the incident at Raffy's Cafe´ Bar. When the police arrived thereafter, she gave them a statement about what had prompted the call. She went to the police station approximately one hour later and gave a second statement, which was recorded. In her recorded statement, Matias provided the following account. Matias was visiting her mother's apartment, located across the street from the bar, when she heard people yelling. She went to the window and observed approximately twenty people standing around behind the bar watching a fistfight. Matias could not make out any features of the people fighting because the only light was from the bar, but she could see that there were three black men involved in the fight: a man in a red shirt, a man in a yellow shirt, and a man in a white shirt. Those descriptions matched the clothing worn that night by the defendant (red shirt), Benjamin (yellow shirt), and Brown (white shirt). Matias heard one or more women yelling, ‘‘Don't do it. . . . Gun. Oh, my God. A gun.'' After seeing the man in the yellow shirt push the man in the white shirt to the ground, Matias left the window to call 911. She then heard one or more gunshots, which brought her back to the window. She observed the man in the red shirt flee and drive away, while the man in the yellow shirt knelt next to the man in the white shirt on the ground. The man in the yellow shirt was hysterical, and stated, ‘‘ ‘Oh, I killed him. I killed him.' ''

         Defense counsel first alerted the trial court to concerns about his ability to proffer Matias as a witness as jury selection was about to commence. He explained that Matias had called him after she learned that he had mailed a subpoena to her residence, and had stated ‘‘that she had been contacted by several people over the past few months and she did not want to take any part in this case. She was told by a woman by the name of ‘‘Beth''-the name of the prosecutor-''that she did not have to do so if she didn't want to. Also . . . she [stated] that . . . [t]he Meriden Police Department indicated that if anybody had called her or had spoken to her about this case that they would take care of it.'' Matias hung up without telling defense counsel where she was. Defense counsel stated his intent to file a motion on this matter.

         Shortly thereafter, the defendant filed a motion in limine seeking to admit the recorded interview that Matias had given to the police. The defendant argued therein that, because the police had failed to preserve Matias' 911 call, [2] he should be permitted to introduce the only recording preserving her version of the inci-dent-i.e., the interview. In his memorandum in support of the motion, dated May 31, 2011, defense counsel noted that Matias had informed him that she would not be returning to Meriden until June 6, 2011.

         On June 9, 2011, the trial court informed counsel that it was deferring a ruling on the motion in limine, noting that defense counsel was still seeking to serve a subpoena on Matias. Defense counsel then requested that the court ‘‘consider giving an order that the state issue a material witness warrant'' for Matias. He noted that he had attempted to serve Matias with a subpoena at her residence and at her mother's residence, but was unsuccessful because she was not in Connecticut. He added that, without personally serving Matias, ‘‘[t]he only other remedy at the defense's disposal would be to ask the court for a material witness warrant which falls pursuant to, I believe, it's [General Statutes §] 54-84j[3] and the state has the ability to ask for [one]. I do not have that ability. So, I would request that the court order the state to issue a material witness warrant for . . . Matias.'' (Footnote added.) The trial court declined to rule on that request, noting that defense counsel had indicated in his motion in limine that Matias would be returning to Meriden on June 6, 2011, and that he still had time to serve her with a subpoena, but suggesting that counsel could renew his request if his efforts were unsuccessful.

         During the state's case-in-chief, defense counsel brought to the court's attention that he had received information from Matias and another person that Matias was then in Puerto Rico and did not anticipate returning to the state. Several days later, defense counsel renewed his request for the court to order the state to issue a material witness warrant for Matias. The trial court then asked: ‘‘[T]hat is pursuant to [General Statutes §] 54-82j. Is that correct, counsel?'' Defense counsel answered, ‘‘That's correct, Your Honor.'' In response to questioning from the court, defense counsel conceded that he knew of no case in which a court had ordered the detention of a witness for a defendant pursuant to § 54-82j, but claimed that fundamental fairness required that he should have access to the same discovery tool available to the state. The trial court read the text of § 54-82j on the record and then denied counsel's request on the following ground: ‘‘We don't have an address for [Matias]. There's no case law that this court is aware of and the statute is clear on its face that it is a written complaint from the state's attorney addressed to the clerk. So this court does not have authority pursuant to the statute to grant the request of defense counsel . . . .''

         Shortly before the close of the state's case-in-chief, the court heard argument on the defendant's motion in limine seeking admission of Matias' recorded statement to the police. Defense counsel argued that the defendant's right to present a defense would be violated unless the trial court admitted Matias' statement inculpating Benjamin-the only evidence of her version of events because of the state's failure to preserve the 911 call and its fault in encouraging Matias' absence at trial. Defense counsel asserted that the statement was admissible under the residual hearsay exception. In response, the prosecutor explained that she had not told Matias that she did not have to appear at trial, but instead had only told her she did not have to speak with anyone who was harassing her about the case. The prosecutor argued that the statement was inadmissible under the residual hearsay exception and contained many layers of hearsay. After the prosecutor also suggested that Matias should not be deemed unavailable because defense counsel could have taken greater efforts to travel out of state to serve her, counsel responded that he ‘‘ha[d] no address for this witness in Puerto Rico'' and that she was unwilling to provide such information.

         The trial court denied the defendant's motion on the ground that the statement did not satisfy the residual hearsay exception. The court put aside the issue of reasonable necessity, resting its ruling on the ground that her statement was not sufficiently trustworthy. The court reasoned that Matias had not appeared at a probable cause hearing and, thus, her account had never been subjected to cross-examination. The court also noted that Matias' statement was not corroborated by the testimony of any of the other three eyewitnesses.

         A

         We begin with the defendant's claim that he was deprived of his right to present a defense insofar as the trial court declined to issue a material witness warrant to obtain Matias' appearance. On appeal, the defendant concedes that the proper statute for a defendant to invoke to seek the court's issuance of a certificate for procuring out-of-state witnesses is General Statutes § 54-82i, [4] and that § 54-82j, which was invoked before the trial court, addresses the state's right to have a warrant issued on its behalf by the clerk of the court. The defendant nevertheless contends that he preserved his claim under § 54-82i because his request was sufficiently clear to invoke the procedures of that statute, a proposition that the state vigorously disputes. The defendant alternatively seeks to prevail on an unpre-served claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. We conclude that the defendant's inability to provide a location for Matias with any reasonable degree of certainty is fatal to his claim that his right to present a defense was violated by the court's failure to issue a certificate to summon her from out of state.

         At the outset, we note that, contrary to the defendant's contention, he did not make a generalized request for the trial court to issue a material witness warrant. Rather, defense counsel repeatedly affirmed in response to unambiguous questions from the court that he was asking the court to order the state to seek the issuance of a material witness warrant under § 54-82j. Although this court has recognized that it can be plain error for a trial court to fail to apply a clearly applicable statute, even if the parties do not bring it to the court's attention; see Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993); the situation here is a step removed from that case law. In the present case, the defendant repeatedly invoked the wrong statute and asked the court to take a different action (ordering action by the state), but to achieve an end that a different statute plainly authorized-the court's issuance of a certificate summoning the out-of-state witness. We conclude that, irrespective of whether we assume that our clear error case law extends to such circumstances and that the trial court had adequate notice of the defendant's claim to render it preserved for appellate review, his claim fails.

         We agree with the defendant that the record is adequate for review. Although the state correctly points out that the trial court never made a predicate factual finding that Matias would be a ‘‘material'' witness, no reasonable trier of fact could conclude otherwise. For the reasons that follow, we further agree with the defendant that the improper denial of the use of the procedures set ...


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