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State v. Bonds

Court of Appeals of Connecticut

April 4, 2017

STATE OF CONNECTICUT
v.
DARRYL BONDS

          Argued December 13, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, White, J.

          Stephan E. Seeger, with whom, on the brief, was Igor G. Kuperman, for the appellant (defendant).

          Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, former state's attorney, and Joseph C. Valdes, senior assistant state's attorney, for the appellee (state).

          Alvord, Prescott and Mihalakos, Js.

          OPINION

          PRESCOTT, J.

         The defendant, Darryl Bonds, appeals from the judgment of conviction, rendered after a jury trial, of one count of felony murder in violation of General Statutes § 53a-54c, [1] one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and one count of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-135. On appeal, the defendant claims that the trial court improperly (1) admitted two separate out-of-court statements under our hearsay exception for statements against penal interest, (2) admitted an out-of-court statement made by the defendant that was not properly authenticated, and (3) denied the defendant's request to instruct the jury on an affirmative defense to felony murder. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On October 28, 2009, approximately one week before the victim, Denny ‘‘Pun'' Alcantara, was robbed and shot, Tyrone Tarver told Shari Johnson, a childhood friend, that ‘‘he was going to set [Pun] up to get robbed because he thought that [Pun] was soft.'' Tarver then stated that ‘‘he was going to call [Pun] up and tell him that he wanted, like, ten bags of weed. And at that point, that's when [Tarver] was going to set [Pun] up . . . .'' In response to this plan, Johnson expressed her disappointment in Tarver and his behavior, and the two had a ‘‘blow-out argument.''

         On November 4, 2009, at approximately 4 p.m., the victim spoke on the telephone with his friend, Richard Patterson, to confirm that they would be watching the World Series together later that evening at the apartment of another friend, Anthony LaCrete, at 62 Stillwater Avenue in Stamford. The victim also told Patterson that he was going to meet with Tarver later that evening outside LaCrete's house, the purpose of which was later revealed to be to sell marijuana to Tarver.

         On the same day, at about 5:20 p.m., the defendant called his cousin, Yvannia Collazo, and asked her to drive him and some friends to Stillwater Avenue to buy some ‘‘weed.'' She agreed, and when she went to pick up the defendant, he entered the car with his two friends, Tarver and Joshua McNeil. She then dropped the three men off in the vicinity of Stillwater Avenue, parked her car in a local parking lot, and went into a nearby salon to use the restroom.

         At about 5:40 p.m., Tarver called the victim. Shortly thereafter, the victim called LaCrete, who was holding the victim's drugs in his Stillwater Avenue apartment, and asked for his ‘‘pack, '' i.e., his bundle of marijuana. At that point, LaCrete walked downstairs to the bottom of the stairwell at the back of his house, delivered the drugs to the victim, and went back upstairs. The victim then went outside to make the sale to Tarver.

         At about this time, Patterson was walking along Still-water Avenue and saw the victim, who was wearing a black leather jacket and a thick gold chain, sitting alone on the porch at 62 Stillwater Avenue. Patterson told the victim that he was meeting someone and would be back soon to watch the game, and continued walking down the street. As he was cutting through a parking lot, Patterson saw three men-Tarver, the defendant, and an individual later identified as McNeil-and informed them that ‘‘Pun'' was waiting for them around the corner, to which Tarver and the defendant replied, ‘‘okay.''

         At about 6 p.m., Gustavo Lopez was working at a travel agency on Stillwater Avenue when he observed two black males wearing hoodies in the agency's parking lot. The men were soon joined by a third male, and all three eventually started walking in the direction of 62 Stillwater Avenue. Within minutes of when Lopez saw the men leave the parking lot and when Patterson left the defendant and Tarver, the victim was shot twice in the stomach.

         LaCrete heard the two gunshots from where he was inside the house, followed by the victim repeatedly calling out, ‘‘Tony, '' in distress. This prompted LaCrete to run downstairs and open the door, at which point the victim stumbled in, bleeding. LaCrete asked the victim who had shot him, and the victim replied, ‘‘nigga shot me.'' An ambulance and the police arrived on the scene within five minutes of the shooting, and the victim was observed to be missing his black leather jacket, gold chain, cell phone, money, and marijuana. The victim ultimately died of a gunshot wound to the abdomen.

         Meanwhile, after walking out of the salon and immediately hearing gunshots, Collazo got back into her car and instantly observed McNeil ‘‘at [her] door side.'' Within seconds, the defendant and Tarver also ran back to the car and got in, with the defendant sitting in the front and Tarver sitting in the back with McNeil. Acting nervous and jittery, the defendant directed Collazo to ‘‘hurry up and leave.'' While driving away, Collazo noticed Tarver wearing a black leather jacket that he had not been wearing previously. She also heard Tarver say that he had the black leather jacket, gold chain, and money, and the defendant say that he had the ‘‘weed.'' Thereafter, Tarver and the defendant began arguing with each other about ‘‘who gets what'' from the items. At some point, Collazo dropped off McNeil at a local Stamford bodega; picked up her brother, Elvis Batista; picked up her son from an after-school program in Stamford; and proceeded to drive everyone back to her and Batista's apartment in Bridgeport.

         During the drive, Tarver told Batista, ‘‘We just robbed Pun.'' Also during the drive, near a Norwalk exit on Interstate 95, the defendant threw the victim's cell phone out of the car window. Upon arriving back home in Bridgeport at about 7 p.m., Collazo turned on the news on television and saw that a shooting had occurred on Stillwater Avenue in Stamford, which gave her a ‘‘bad feeling.'' The next morning, she woke up in her apartment and smelled the scent of marijuana in the air, saw the black leather jacket Tarver had been wearing in the car the previous night, and noticed that the defendant and Tarver were still in the apartment. On December 13, 2010, the defendant was arrested pursuant to a warrant.

         Prior to trial, the state filed a second amended information dated May 7, 2014, charging the defendant with one count of felony murder in violation of § 53a-54c, one count of robbery in the first degree in violation of § 53a-134 (a) (2), and one count of conspiracy to commit robbery in the second degree in violation of §§ 53a-48 (a) and 53a-135. Following a jury trial, the defendant was found guilty of all counts. He was sentenced to a total effective term of fifty-five years imprisonment followed by five years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         The defendant first claims that the court improperly admitted two hearsay statements made by Tarver.[2] The first, he made to Johnson approximately one week before the robbery and shooting of the victim. The second, he made to Batista immediately after the robbery and shooting of the victim. The defendant specifically argues, inter alia, that neither statement should have been admitted under § 8-6 (4) of the Connecticut Code of Evidence, entitled ‘‘Statement against penal interest, '' because the first statement to Johnson would not have subjected Tarver to any criminal liability, and the second statement to Batista is not sufficiently trustworthy because the two parties did not share a preexisting relationship with each other.

         In response, the state first argues that the hearsay statement to Johnson was properly admitted as a statement against penal interest because it is inculpatory pursuant to the holding of State v. Bryant, 202 Conn. 676, 689-702, 523 A.2d 451 (1987).[3] The state next argues that the hearsay statement to Batista was properly admitted as a statement against penal interest[4] because the evidence suggested more than a mere acquaintanceship between the two parties, and the factors that inform the court's determination regarding the statement's trustworthiness weigh in favor of its reliability. We agree with the state that both statements were properly admitted as statements against penal interest.

         Before addressing the merits of these claims, we set forth the applicable standard of review and the law governing the hearsay exception for statements against penal interest. ‘‘To the extent [that] a trial court's admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. . . . We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.'' (Internal quotation marks omitted.) State v. Miguel C., 305 Conn. 562, 571-72, 46 A.3d 126 (2012).

         ‘‘As a general matter, hearsay statements may not be admitted into evidence unless they fall within a recognized exception to the hearsay rule.'' State v. Smith, 289 Conn. 598, 618, 960 A.2d 993 (2008). Section 8-6 of the Connecticut Code of Evidence provides in relevant part that ‘‘[t]he following are not excluded by the hearsay rule if the declarant is unavailable as a witness . . . (4) Statement against penal interest. A trustworthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. In determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which the statement was against the declarant's penal interest . . . .'' In short, the admissibility of a hearsay statement pursuant to § 8-6 (4) of the Connecticut Code of Evidence ‘‘is subject to a binary inquiry: (1) whether [the] statement . . . was against [the declarant's] penal interest and, if so, (2) whether the statement was sufficiently trustworthy.'' State v. Collins, 147 Conn.App. 584, 590, 82 A.3d 1208, cert. denied, 311 Conn. 929, 86 A.3d 1057 (2014).

         A

         We turn first to the defendant's claim that the court improperly admitted as a statement against penal interest the hearsay declaration that Tarver made to John-son-that he was going to set up ‘‘Pun'' to be robbed- seven days prior to the robbery and shooting of the victim. The defendant argues that the statement does not qualify as one against penal interest because the statement alone would not have subjected Tarver to any criminal liability, given that Tarver was merely ‘‘sharing an unformed idea for the future with his friend.'' In response, the state argues that there is no requirement that such statements must, by themselves, subject the declarant to arrest, because the exception applies equally to statements which ‘‘tend'' to incriminate the declarant were he or she charged with a crime, as made clear by our Supreme Court's decision in State v. Bryant, supra, 202 Conn. 695-96. We agree with the state.

         With respect to what it means for a statement to be ‘‘against penal interest, '' our Supreme Court held in State v. Bryant, supra, 202 Conn. 695-96, that it was persuaded by ‘‘the trend to reject a narrow and inflexible definition of a statement against penal interest in favor of a definition which includes not only confessions, but other remarks [that] would tend to incriminate the declarant were he or she the individual charged with the crime. . . . The against interest exception is not limited to a defendant's direct confession of guilt. . . . It applies as well to statements that tend to subject the speaker to criminal liability. . . . The rule encompasses disserving statements by a declarant that would have probative value in a trial against the declarant. . . . Considered in context, the term tend . . . reaches in a proper case as against interest remarks that strengthen the impression that the declarant had an insider's knowledge of the crimes. . . . As to what is against penal interest, quite obviously the essential characteristic is the exposure to risk of punishment for a crime. . . . Moreover, it is not the fact that the declaration is against interest but the awareness of that fact by the declarant [that] gives the statement significance.'' (Citations omitted; internal quotation marks omitted.) Id.

         In Bryant, the court was tasked, in part, with reviewing whether a hearsay statement, offered by the defendant, that the defendant's brother, Eugene Bryant, made to a witness, Keith Perry, before the burglary at issue occurred was properly excluded by the trial court because it failed to fall within the hearsay exception for statements against penal interest. Id., 691-95. Before the burglary in that case took place on September 8, 1983, Bryant asked Perry toward the end of summer if he wanted to break into an apartment on Dell Avenue in New London. Id., 690. Our Supreme Court held that the statement was ‘‘in a very real sense self-incriminatory and unquestionably against interest'' because ‘‘the context in which [Bryant] had made the statements concerning the burglary . . . fairly viewed, indicates that he had an insider's knowledge of the crimes and implied his personal participation.'' (Internal quotation marks omitted.) Id., 696.

         In the present case, therefore, we disagree with the defendant's assertion that the statement could not be considered against Tarver's penal interest because, at the time it was made, it could not subject him to immediate criminal liability. If the only requirement for constituting ‘‘against penal interest'' were that such statements must, by themselves, subject the declarant to immediate criminal liability, then any statement made before the commission of a crime could never constitute a statement against interest, a conclusion that contravenes our Supreme Court's holding in Bryant.

         By explicitly stating to Johnson that he intended to rob the victim during a feigned drug transaction by calling in an order of ‘‘ten bags of weed, '' Tarver certainly ‘‘tend[ed] to subject [himself] to criminal liability'' in that the statement ‘‘would have probative value in a trial against the declarant.''[5] (Emphasis added; internal quotation marks omitted.) State v. Bryant, supra, 202 Conn. 695-96. Ultimately, Tarver's statement here, like Bryant's statement to Perry in Bryant, indicates that the declarant intended in the future to participate personally in a robbery of the victim.[6] The trustworthiness of that statement is strongly bolstered by the fact that such a robbery subsequently occurred just seven days after the statement was made.

         To the extent that the defendant argues that the court cannot rely on evidence of a ‘‘subsequently committed crime'' in its evaluation of ‘‘the existence of corroborating evidence in the case''; Conn. Code Evid. § 8-6 (4) (B); we disagree. In fact, in Bryant, our Supreme Court specifically looked to evidence of the subsequently committed robbery in evaluating the existence of corroborating evidence bolstering the trustworthiness of the statement against penal interest. The court stated that ‘‘[Bryant's] earlier importuning of Perry, evidencing his predisposition to commit the crime, is also not without significance, given the actual burglary of the apartment on Dell Avenue.'' State v. Bryant, supra, 202 Conn. 698. ‘‘It is evident that there was significant evidence of the corroborative quality required.'' Id., 701.

         The defendant cites to both Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), and State v. Merriam, 264 Conn. 617, 835 A.2d 895 (2003), in support of his assertion that ‘‘evidence not directly related to the circumstances surrounding the making of the statement cannot be used to substantiate the statement's trustworthiness.'' Id., 644. Those cases are inapplicable here.

         In both cases, the nature of the defendant's claim was that the admission of the out-of-court statement violated his rights under the confrontation clause. See id., 642; see also Idaho v. Wright, supra, 497 U.S. 822-23. Accordingly, both cases analyzed the defendant's claim pursuant to the applicable legal framework at that time set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which provided that ‘‘once a witness is shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability . . . [and] the evidence must be excluded . . . absent a showing of particularized guarantees of trustworthiness.'' (Emphasis added; internal quotation marks omitted.) Idaho v. Wright, supra, 814-15. This test, however, requiring ‘‘particularized guarantees of trustworthiness, '' is more rigorous than the requirement set forth in § 8-6 (4) of the Connecticut Code of Evidence, that is, that the statement simply be ‘‘trustworthy.''[7] In addition, the test set forth in Roberts was abrogated later by Crawford v. Washington, 541 U.S. 36, 51-53, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The defendant here does not allege a constitutional claim under the confrontation clause, nor could he succeed in doing so, given that the hearsay statement here was not ‘‘testimonial'' in nature. See id. Accordingly, the defendant's reliance upon Wright and Merriam is unavailing.

         For all of these reasons, we conclude that Tarver's declaration to Johnson was against his penal interest. Accordingly, the court did not abuse its discretion in admitting it pursuant to the hearsay exception ...


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