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State v. Azevedo

Court of Appeals of Connecticut

December 19, 2017

STATE OF CONNECTICUT
v.
AMANDA AZEVEDO

          Argued September 11, 2017

          John R. Williams, for the appellant (defendant).

          Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Howard S. Stein, senior assistant state's attorney, for the appellee (state).

          Lavine, Kahn and Bishop, Js.

          OPINION

          BISHOP, J.

         The defendant, Amanda Azevedo, appeals from the judgment of conviction, rendered after a jury trial, of the following six counts: (1) arson in the first degree in violation of General Statutes § 53a-111 (a) (3); (2) attempt to commit insurance fraud in violation of General Statutes §§ 53a-215 and 53a-49; (3) attempt to commit larceny in the first degree in violation of General Statutes §§ 53a-49, 53a-119 and 53a-122 (a) (2); (4) conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-111 (a) (3); (5) conspiracy to commit insurance fraud in violation of General Statutes §§ 53a-48 and 53a-215; and (6) conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48, 53a-119 and 53a-122 (a) (2). On appeal, the defendant argues that (1) out-of-court statements of a coconspirator that the trial court admitted into evidence constituted inadmissible hearsay and violated the confrontation clause of the sixth amendment to the United States constitution, and (2) that the state's use of cell site location information violated article first, § 7, of the constitution of Connecticut. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On January 28, 2008, at approximately 9:50 a.m., the defendant's neighbor called 911 to report a fire at the defendant's residence. The neighbor saw the flames through a window in front of the defendant's home. No one was home at the time the neighbor called 911, and the defendant was the last person to have been in the house before the fire. The fire destroyed the defendant's home. After firefighters extinguished the flames, state and local fire marshals began examining the circumstances of the fire, as well as the defendant's behavior. Lengthy police and insurance company investigations ensued.

         The police and insurance company investigations revealed the following details of the defendant's personal life and financial situation at the time of the fire. The defendant was unemployed and her husband, Joao Azevedo, owned a small flooring business, which was the family's sole source of income. Azevedo's business was failing, however, due to his opioid addiction. On the day of the fire, the defendant's husband was set to be released from an inpatient treatment program for his opioid addiction. At the time of the fire, the defendant and her husband were making late payments to various creditors and had trouble paying for necessities such as home heating oil, health insurance, and property insurance premiums. Additionally, the defendant and her husband had federal and state tax liens of nearly $145, 000 filed against their home as a result of unpaid income taxes. Two weeks prior to the fire, Norwalk police arrested the defendant's husband on a charge of writing a bad check to a supplier for more than $25, 000 worth of hardwood flooring.

         On January 10, 2008, eighteen days prior to the fire, the defendant called her local insurance agent to inquire about the status and expiration date of her homeowner's insurance policy. Although the defendant's insurance carrier had threatened cancellation due to late payments, the policy was in effect on the date of the fire. Additionally, days prior to the fire, the defendant and coconspirator Diniz Depina removed items from the defendant's home such as furniture, jewelry, and personal documents. After the fire, the defendant filed a claim with her insurance company for payment of $1, 235, 087.45 in losses caused by the fire.

         Due to the suspicious circumstances surrounding the fire, the defendant's insurance company hired investigator Robert Corry, who conducted a detailed cause and origin investigation. After completing his investigation, Corry reached the conclusion that the fire at the defendant's home had been intentionally set.

         On January 5, 2015, the state charged the defendant in an amended information with arson in the first degree; conspiracy to commit arson in the first degree; attempt to commit insurance fraud; conspiracy to commit insurance fraud; attempt to commit larceny in the first degree; and conspiracy to commit larceny in the first degree. On March 6, 2015, a jury found the defendant guilty of all charges. On April 24, 2015, the court sentenced the defendant to a total effective sentence of ten years of imprisonment, execution suspended after four years, and three years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

         I

         On appeal, the defendant argues that the admission of certain statements made by Depina constituted inadmissible hearsay and violated the confrontation clause of the sixth amendment to the United States constitution. The statements at issue are Depina's statements to Corry; Depina's deposition testimony, which echoes his statements to Corry; and Depina's statements to Laura Azevedo Rasuk and Johanna Angelo, both of whom are family friends and Bridgeport police officers. The state responds that Depina's statements to Corry and Depina's deposition testimony were admissible as statements of a coconspirator in furtherance of a conspiracy under § 8-3 (1) (D) of the Connecticut Code of Evidence. The state further argues, with respect to Depina's statements to Rasuk and Angelo, that the defendant waived her right to claim a confrontation clause violation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and that the statements were properly admitted as dual inculpatory statements. We agree with the state.

         ‘‘The [c]onfrontation [c]lause . . . bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.'' (Internal quotation marks omitted.) State v. Camacho, 282 Conn. 328, 347-48, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S.Ct. 338, 169 L.Ed.2d 273 (2007). ‘‘[W]hen faced with the issue of the contested admission of hearsay statements against the accused in a criminal trial, courts first must determine whether the statement is testimonial.'' Id., 349. Although the Supreme Court declined to define the term ‘‘testimonial, '' it noted, however, that ‘‘[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial; and to police interrogations.'' Crawford v. Washington, supra, 541 U.S. 68. ‘‘Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to use prosecutorially . . . .'' (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 51-52.

         Accordingly, even though the Supreme Court did not establish a ‘‘comprehensive definition of testimonial, it is clear that much of the [United States] Supreme Court's and our jurisprudence applying Crawford largely has focused on the reasonable expectation of the declarant that, under the circumstances, his or her words later could be used for prosecutorial purposes.'' (Internal quotation marks omitted.) State v. Slater, 285 Conn. 162, 172, 939 A.2d 1105, cert. denied, 553 U.S. 1085, 128 S.Ct. 2885, 171 L.Ed.2d 822 (2008). ‘‘[T]his expectation must be reasonable under the circumstances and not some subjective or far-fetched, hypothetical expectation that takes the reasoning in Crawford and Davis [v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)] to its logical extreme.'' (Emphasis in original.) State v. Slater, supra, 175.

         ‘‘[T]he threshold inquiries that determine the nature of the claim are whether the statement was hearsay, and if so, whether the statement was testimonial in nature, questions of law over which our review is plenary.'' State v. Smith, 289 Conn. 598, 618-19, 960 A.2d 993 (2008). ‘‘To the extent a trial court's admission of evidence is based on an interpretation of the [Connecticut] 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. They require determinations about which reasonable minds may not differ; there is no judgment call by the trial court.'' (Internal quotation marks omitted.) State v. Miller, 121 Conn.App. 775, 780, 998 A.2d 170, cert. denied, 298 Conn. 902, 3 A.3d 72 (2010).

         A

         Depina's Statements to Corry and Depina's Deposition Testimony

         We begin with the defendant's argument that the admission into evidence of Depina's statements to Corry and Depina's deposition testimony violated the defendant's right to confrontation under the sixth amendment to the United States constitution and were improperly admitted under § 8-3 (1) (D) of the Connecticut Code of Evidence as statements of a coconspirator in furtherance of a conspiracy. We disagree.

         The following additional facts and procedural history are relevant in part to our decision. In the course of his investigation on behalf of the defendant's insurance company, Corry interviewed Depina. Depina also gave a deposition during the course of the civil litigation stemming from the defendant's insurance claim after the fire. Depina told Corry, and testified in his deposition, that the defendant called him at approximately 9 a.m. on the morning of the fire. Depina testified that the defendant then stopped by his house after visiting her husband at Griffin Hospital, which was close to Depina's house. Depina told Corry that the defendant was at his house because he was borrowing money from her. He stated, as well, that the defendant had stopped by to drop off money so he could purchase food for a party the defendant was throwing to welcome her husband home from the hospital. The defendant remained at Depina's residence for approximately fifteen minutes. The next communication between Depina and the defendant occurred when she called him and exclaimed that her house was on fire.

         Initially, the trial court admitted Depina's statements to Corry for the limited purpose of showing only that the statements were ‘‘in fact, made by Mr. Depina to this witness, Mr. Corry.'' The court gave the jury a limiting instruction to that effect. Later, the court found from the introduction of additional evidence, that the state had established the existence of a conspiracy between Depina and the defendant by a fair preponderance of the evidence. On that basis, the court removed the limiting instruction and admitted Depina's statements to Corry for their substantive use under § 8-3 (1) (D) of the Connecticut Code of Evidence. The court also admitted Depina's deposition transcript into evidence for its substantive use pursuant to the same section of the code.

         In assessing the propriety of the court's decision to permit into evidence Depina's statements to Corry and Depina's deposition testimony, we first must determine whether the statements and deposition testimony were testimonial in nature. This is a question of law over which our review is plenary. See State v.Smith, supra, 289 Conn. 618-19. The defendant argues that both the statements to Corry and the deposition testimony are testimonial in nature. The state argues, on the other hand, that the court properly admitted Depina's statements to Corry and deposition testimony as verbal acts in furtherance ...


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