October 18, 2016
from Superior Court, judicial district of Waterbury,
B. Rasile, assigned counsel, for the appellant (defendant).
Melissa L. Streeto, senior assistant state's attorney,
with whom, on the brief, were Maureen Platt, state's
attorney, and Cynthia S. Serafiniand Terence Mariani, senior
assistant state's attorneys, for the appellee (state).
DiPentima, C. J., and Keller and Calmar, Js.
defendant, Johnny Martinez, appeals from the judgment of
conviction rendered by the trial court, following ajury
trial, of 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 General Statutes § 53a-134 (a)
(3), conspiracy to commit robbery in the first degree in
violation of General Statutes §§ 53a-48 (a) and
53a-134 (a), and tampering with evidence in violation of
General Statutes (Rev. to 2010) § 53a-155 (a)
The defendant claims that the court (1) violated his right to
present a defense by prohibiting him from presenting evidence
concerning an altercation that took place in the hours prior
to the events at issue, (2) violated his right to
cross-examination by limiting the scope of his
cross-examination of a state's witness, (3) improperly
instructed the jury with respect to accessorial liability in
the course of its instructions concerning the murder count,
(4) improperly failed to comply with the jury's request
to have certain testimony played back, and (5) improperly
denied his request to suppress a written statement that he
provided to the police. We dismiss the appeal with respect to
the third claim, and with respect to the remainder of the
appeal, we affirm the judgment of the trial court.
basis of the evidence presented at trial,  the jury
reasonably could have found the following facts. Shortly
after 4 a.m., on November 2, 2010, the victim, Arnaldo
Gonzalez, left his residence on Savings Street in Waterbury
and began walking to an election polling station on
Washington Street, where he was scheduled to report at 5 a.m.
to work as a bilingual interpreter. When the victim left his
residence, he was carrying a black backpack.
victim made his way to Baldwin Street when an automobile
being driven by Manuel Vasquez, and in which the defendant,
Michael Mark,  and Anthony Garcia were passengers, drove
by him. The four men in the automobile were on their way to
purchase liquor at a ‘‘bootleg house'' at
which liquor was sold ‘‘after hours, ''
when bars and package stores were not open for business. Mark
observed the victim and commented aloud that he intended to
parked the automobile along Baldwin Street, near the bootleg
house. Before going to purchase liquor, Vasquez cautioned
Mark not to do anything ‘‘stupid.'' The
defendant and Mark then exited the automobile and proceeded
on foot in the victim's direction. Garcia remained in the
defendant and Mark followed the victim intending to rob him.
As they got closer to the victim, Mark picked up a hard
object, perhaps a brick or a rock, from the ground. Mark ran
toward the victim from behind while the defendant ran into
the street to prevent the victim from fleeing from them. Mark
struck the victim in the back of the head with the hard
object. The victim did not have time to react, but
immediately fell to the ground. Mark repeatedly struck the
victim, who was lying face down on the ground. When the
defendant, wearing white sneakers, came upon the victim, he
stomped on the victim's head, causing blood to transfer
onto one of his sneakers. Mark left the victim while in
possession of the victim's backpack.
Vasquez returned to the automobile a short time later, Garcia
informed him that he thought that the defendant and Mark had
gone ‘‘up the street'' to
‘‘rob'' the victim. Vasquez drove a short
distance before he observed the defendant and Mark running in
a southerly direction, on opposite sides of the street, near
the intersection of Baldwin and Galivan Streets. Vasquez
stopped the automobile to permit both men to get inside of
it. Mark remained in possession of the victim's backpack.
Mark was ‘‘bugging out, '' looking at his
hands, and he stated three times that he had killed the
victim. The defendant stated that Mark had hit the victim
‘‘ ‘in the head over and over again.'
'' Also, the defendant stated that he had kicked the
victim. The victim, who sustained multiple skull fractures
and brain hemorrhaging, died as a result of blunt force
trauma to his head that was consistent with being hit with a
hard object such as a rock and being kicked with a shod foot.
drove the men to the defendant's residence on Second
Avenue. There, in the kitchen, Mark referred to the manner in
which he had struck the victim in the head; he imitated the
cracking sound that he had heard during his assault of the
victim. The defendant and Garcia rummaged through
the items in the victim's backpack, which included
several items that the victim, a diabetic, used to care for
himself. The commotion caused the defendant's
sister-in-law, Joan Ruiz, to come to the kitchen. Ruiz asked
the defendant about the appearance of blood on one of his
sneakers, to which the defendant replied that they had
‘‘jumped a crack-head'' who owed them
money and that he had ‘‘kicked him in the
head.'' Later, after Ruiz learned from the defendant
that Mark had killed someone, Ruiz told everyone to leave and
to remove the victim's backpack from her residence.
Ruiz observed the blood on the defendant's sneaker, he
went to a bathroom and cleaned the blood off of the sneaker.
The defendant concealed the backpack by tossing it on the
roof of a neighbor's garage. In the hours following the
murder, the defendant appeared to be crying and he stated
that ‘‘he couldn't believe that he kicked the
facts will be set forth as necessary.
the defendant claims that the court violated his right to
present a defense by prohibiting him from presenting evidence
concerning an altercation that took place in the hours prior
to the events at issue. Although we agree that the court
erroneously ruled as it did, we conclude that the error was
harmless beyond a reasonable doubt.
following procedural history provides necessary context for
our analysis of the defendant's claim. At trial, the
state presented evidence that, following the victim's
murder, blood was present on one of the defendant's
sneakers. The defense attempted to demonstrate that the blood
was not the victim's blood, but that it was the blood of
a third party with whom the defendant had been involved in a
physical altercation in the hours prior to the victim's
his direct examination by the state at trial, Garcia
testified that, when he, the defendant, Vasquez, and Mark
were at the residence on Second Avenue following the
victim's murder, he observed blood on one of the
defendant's sneakers. He recalled that, after Ruiz asked
the defendant why there was blood on his sneaker, the
defendant ‘‘went to clean it.'' During
the defense's cross-examination of Garcia, he was asked
about an event that occurred while he was with the defendant,
Vasquez, and Mark, in the hours prior to the victim's
murder. The state objected to this inquiry and, outside of
the presence of the jury, the state argued that it appeared
that the defense was attempting to elicit testimony
concerning an event ‘‘where the four individuals
. . . got into a fight or a scuffle with somebody, that there
was a dispute over the purchase of either powdered or crack
cocaine. That was where [defense counsel] was trying to get
with this particular witness.'' The state argued
that the inquiry was objectionable on the grounds that it was
beyond the scope of the state's direct examination of
Garcia and because the evidence was not relevant to the
events that transpired on Baldwin Street and resulted in the
counsel argued that the line of inquiry was proper. First, he
argued that the evidence was within the scope of the
state's direct examination because the state had elicited
testimony from Garcia with respect to events that transpired
when the four men (the defendant, Vasquez, Garcia, and Mark)
‘‘got together'' in the hours prior to
the murder. Second, the defendant's attorney argued that
the evidence he was trying to elicit would tend to
demonstrate that, in the hours prior to the murder, the
defendant had kicked a third party (a person he referred to
as a ‘‘crackhead''). He argued that this
evidence was ‘‘absolutely relevant'' and
‘‘material to the defense of the case''
because it tended to demonstrate that the blood on the
defendant's sneaker was not caused by his conduct with
respect to the victim in this case but that it resulted from
the defendant's violent conduct in an unrelated incident.
The defendant's attorney told the court that the evidence
was relevant to demonstrate ‘‘[t]hat the [prior]
incident occurred and whether or not [Garcia] knows if the
blood [on the defendant's sneaker] came from that
incident, as opposed to a later incident.''
court sustained the state's objection in part. The court
ruled that the defense could inquire of Garcia as to whether
he knew the source of the blood on the defendant's
sneaker but that ‘‘[a]ny details as to any
encounter concerning a crackhead, or however the person was
referred to, those details are not essential to determining
whether or not he knew the source of the blood on the shoe.
Since what is relevant appears to be . . . that he saw the
defendant washing blood off of his shoe, you may inquire as
to whether he knew about the source of that blood on his
shoe. . . . [T]he details concerning the prior encounter,
that is not allowed. . . . [Y]ou can inquire as to whether or
not he was present at a previous encounter and whether or not
he knows of . . . that encounter being the source of the
blood.'' The court went on to explain:
‘‘The details as to the encounter, as in there
was somebody talking about going to take something from a
crackhead and what they took and didn't take, what is
relevant to this is . . . the source of the blood on the
defendant's shoe. . . . You may inquire as to what he
knows concerning the source of the blood, and that can be
done without the details of the encounter.'' The
court stated: ‘‘Here's the question[s] that
you will be permitted to ask. Was there a prior altercation
involving the four individuals in the car? How long did that
happen before the encounter with [the victim]? And whether he
saw any blood on the defendant's shoes from that
the court's ruling, the following colloquy occurred
between defense counsel and Garcia:
‘‘Q. [D]id an incident occur in the late evening
hours of November1, or the early morning hours of November 2,
2010, where you, [Vasquez, Mark, and the defendant] had an
altercation with a third party, not [the victim]?
‘‘Q. Okay. Do you recall approximately how long
from that incident until you went to the bootlegger store,
approximately how long was that time frame?
‘‘A. It was a big time frame . . . probably like
around four hours, three, four hours.
‘‘Q. As a result of that altercation do you know
whether or not that was the source of the blood on [the
defendant's] shoes that you saw at Second Avenue?
‘‘A. It could have been, but I don't
know.'' During Garcia's continued
cross-examination by defense counsel, the following colloquy
‘‘Q. [On Second Avenue] [s]omeone asked [the
defendant] about where the blood came from, didn't they?
‘‘Q. And [the defendant] gave an answer to that,
‘‘Q. [He] said he kicked a crackhead, isn't
‘‘Q. [The defendant] said he kicked a crackhead
in the head, correct?
‘‘Q. At the time that statement was made do you
know whether or not [the victim] was a crackhead?
‘‘Q. Do you have any reason to believe that he
was a drug user that evening?
Garcia's testimony and outside of the presence of the
jury, defense counsel renewed his argument that the court
should have permitted him greater leeway to develop a factual
basis concerning the prior physical altercation involving the
defendant and the third party. The court, observing that its
ruling would apply to the defense's examination of other
witnesses, responded by stating in relevant part:
‘‘The details as to that incident are irrelevant.
I allowed what the court deemed to be relevant: that there
was an earlier incident, that there was an altercation, that
they were involved. You were allowed to address your claim
concerning whether or not there was blood because there was a
question concerning . . . the defendant washing blood off of
his shoes.'' The court further explained:
‘‘The fact that there was something earlier,
I've allowed. The time frame between that and the
incident involving [the victim] is allowed. And any
questioning concerning any blood from that incident versus
any blood from the later incident is allowed. The details
that had been put before the court on the record concerning
who they saw, what they did to him, who did what, I'm not
going to allow the details. Who owed what for drugs or who
owed money. I have ruled that portion of that incident is not
admissible.'' The court then stated:
‘‘One of the big problems is, the details
concerning that [prior] incident are likely to be confusing
and create other problems. But what I have ruled is relevant
is that there was an incident, that they were involved. There
seems to have been some altercation and you're permitted
to question concerning whether or not there was blood from
that incident to explain the blood that [the defendant] was
seen washing off [his sneaker].''
court had occasion to revisit its evidentiary ruling during
the testimony of Sonia Hernandez, who had observed the
victim's lifeless body on Baldwin Street. See footnote 5
of this opinion. During her direct examination by the state,
Hernandez testified that in the early morning of November 2,
2010, she was in a car with Vasquez and Mark. As the car
traveled down Baldwin Street, Hernandez observed a male lying
on the sidewalk, as well as blood. Hernandez stated that when
she brought this to Mark's attention, he stated
‘‘ ‘[t]hat he was just a crackhead. He
deserved that. He owed [me] money or something.'
'' Hernandez testified that Mark then exited the
automobile in the vicinity of the person lying on the
sidewalk and stated that he had to hide a brick. Following
this testimony, defense counsel argued that Hernandez'
testimony, viewed in conjunction with Garcia's testimony,
gave rise to an inference that the defendant had kicked the
victim. Thus, defense counsel argued, the court should permit
the defense to elicit additional details with respect to the
prior incident to rebut this inference. Specifically, defense
counsel argued that the state had presented evidence that
tended to demonstrate that the victim in the present case was
the ‘‘crackhead'' described by Garcia,
but that the court's ruling unfairly precluded the
defense from demonstrating that there was another
‘‘actual crack-head incident'' that did
not involve the victim. The court stated that Hernandez'
testimony, in which she stated that Mark had referred to the
victim as a ‘‘crackhead, '' did not cause
it to change its ruling with respect to the parameters of
defense counsel's inquiries. The court stated that its
limitations did not preclude the defense from eliciting facts
that tended to demonstrate that the blood on the
defendant's sneaker came from the prior incident, not the
incident on Baldwin Street involving the victim. The court
added that the evidence that the defense sought to introduce
had ‘‘a tendency to confuse the jurors in terms
of the actual details of a different incident.''
trial, Vasquez testified with respect to the activities of
November 2, 2010. He stated in relevant part that, when he
returned to the automobile he was driving after he made a
purchase at the ‘‘after hours'' liquor
store, he discovered only Garcia inside. Garcia told him that
the defendant and Mark had gone ‘‘up the
street.'' Vasquez testified that he drove south on
Baldwin Street until he observed the defendant and Mark
running. He stopped the automobile and both men got inside.
Mark, in possession of a black backpack, was
‘‘bugging out, '' stating that he had
‘‘killed the guy.'' Vasquez testified
that the defendant stated that he had ‘‘kicked
him, '' or that he referred to the fact that he had
kicked somebody. Vasquez stated that when he arrived at the
residence on Second Avenue, he observed blood on the
defendant's white Nike sneakers.
Vasquez testified that ‘‘an incident''
had occurred in the hours prior to the incident on Baldwin
Street, prior to the time at which he went to the
‘‘after hours'' house to purchase liquor.
He stated that he, the defendant, Garcia, and Mark were
present at that prior incident. During recross-examination by
defense counsel, the following colloquy with Vasquez
‘‘Q. [Y]ou testified on redirect [examination]
regarding my client making some comment about kicking
someone, is that correct?
‘‘A. That's correct.
‘‘Q. You have no knowledge who he was referring
‘‘Q. It could have been the individual in the
earlier incident, is that correct?
who is the defendant's sister-in-law and Vasquez'
sister, testified that she observed the defendant, Vasquez,
Mark, and Garcia at her and the defendant's residence on
Second Avenue in the early morning hours of November 2, 2010.
When she heard them come inside the residence, she went
downstairs and observed the defendant and Garcia looking
inside of a black backpack. The following colloquy between
the prosecutor and Ruiz occurred:
‘‘Q. Did you notice anything on either Mr. Garcia
or [the defendant]?
‘‘A. I noticed blood.
‘‘Q. On where?
‘‘A. On [the defendant's] sneaker.
‘‘Q. Do you remember which sneaker it was?
‘‘A. No, I don't.
‘‘Q. And can you describe it?
‘‘A. On the side of the sneaker.
‘‘Q. And what color was it?
‘‘Q. And did you inquire ...