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State v. Durdek

Court of Appeals of Connecticut

September 4, 2018

STATE OF CONNECTICUT
v.
STEVEN ROBERT DURDEK

          Argued March 12, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of murder, felony murder, burglary in the first degree, sexual assault in the first degree, arson in the first degree and tampering with physical evidence, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Kwak, J.; verdict and judgment of guilty; thereafter, the court vacated the conviction of felony murder, and the defendant appealed. Affirmed.

          Daniel J. Krisch, assigned counsel, for the appellant (defendant).

          Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and David L. Zagaja, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Sheldon and Prescott, Js.

          OPINION

          PRESCOTT, J.

         The defendant, Steven Robert Durdek, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), arson in the first degree in violation of General Statutes § 53a-111 (a) (1), and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1).[1] The defendant's sole claim on appeal is that the trial court improperly restricted his cross-examination of a state's witness by preventing him, for purposes of impeachment, from asking the witness about misconduct that he allegedly had committed as a juvenile. Because the defendant failed to make an offer of proof regarding how the witness would have responded to any question about the alleged misconduct, we conclude that the record is inadequate to review that claim and, accordingly, affirm the judgment of conviction.

         The jury reasonably could have found the following facts. The victim[2] resided in the third floor apartment of a multifamily home on Park Street in Manchester. The victim's apartment had two entrances. One was located on the exterior of the house and could be reached by a fire escape. That entrance opened into the apartment's living room. The second entrance was through an interior door that opened into a hallway near the bedroom and could be reached by a common interior staircase. The defendant lived near the victim, and had walked past the victim's residence on occasion, but never previously had been on or inside the premises or met the victim.

         On January 18, 2014, sometime during the early morning hours, the defendant entered the victim's apartment.[3] The defendant found the victim in her bedroom where she lay sleeping and he forced her to engage in vaginal intercourse. He then repeatedly and fatally struck the victim in the head with a ceramic ashtray, causing her to suffer multiple skull fractures. After she died, the defendant poured lighter fluid on her and ignited it in an attempt to destroy evidence of his crimes. The fire caused significant burns to the victim's genital region and face, and destroyed her mattress.

         Shortly thereafter, the victim's landlord, who lived in one of the other apartments in the residence, was awoken by a smoke detector alarm. She looked up the interior staircase and saw smoke coming from underneath the victim's interior door. After placing an emergency call, she entered the victim's apartment through the exterior door, which was unlocked, but she was forced to retreat to the exterior staircase landing because of heavy smoke.

         First responders began arriving at the residence shortly after 5 a.m. After the fire was extinguished, investigators discovered the victim's badly burned corpse on her bed. The victim was wearing only a single sock and a long sleeve garment that had been bunched up around her shoulders. Between the victim's legs, investigators discovered a partially melted plastic container that was consistent with packaging used to hold igniter fluid for cigarette lighters. A police dog trained to detect accelerants alerted to evidentiary materials taken from the victim's shoulder and groin areas, as well as the victim's bed.

         The police collected a number of items of evidence from the crime scene, including a heavy ceramic ashtray, on which it later was determined there were traces of the victim's hair and blood, and two DNA swabs taken from the interior doorknob of the living room door that exited onto the fire escape. During the autopsy of the body, a biological sample was collected from inside the victim's vaginal cavity.

         The defendant concedes that the DNA sample collected from the doorknob swabs came from him.[4] The state laboratory tested the doorknob DNA sample and determined that it contained a mixture of DNA from two or more individuals. After comparison with a known DNA sample of the victim's blood collected during the autopsy, the victim was identified as a contributor of some of the DNA. Another contributor was determined to be male and, after comparing the DNA profile of that contributor with those contained in a state database of other unidentified DNA profiles and known DNA profiles from convicted offenders, it was found to match a known profile of the defendant. The known DNA sample of the defendant was then submitted to the state laboratory for additional testing and comparison with the DNA evidence collected in the present case.

         The state laboratory determined that the doorknob DNA was consistent with that of the defendant or another male member of his paternal lineage. The expected frequency of individuals other than the defendant who could have been a contributor to the doorknob DNA was less than one in seven billion in the African American, Caucasian and Hispanic populations.

         The laboratory also identified the defendant as a contributor to the DNA obtained from the swab of the victim's vaginal cavity, albeit with far less statistical certainty than that attributed to the doorknob DNA. More specifically, the DNA that was detected on the vaginal swab was determined to contain male DNA that consisted of a mixture of sperm-rich cells and epithelial skin-rich cells. That DNA was determined to be consistent with that of the defendant or another member of his male paternal lineage. The random probability that an individual other than the defendant (or another member of his male paternal lineage) was a source of the DNA material extracted from the skin rich cells was 1 in 1900 in the Caucasian population, 1 in 1100 in the African American population and 1 in 870 in the Hispanic population. The random probability that an individual other than the defendant (or another member of his male paternal lineage) was a source of the DNA material extracted from the sperm rich cells was 1 in 8 in the Caucasian population, 1 in 3 in the African American population, and 1 in 10 in the Hispanic population.

         As a result of having obtained the defendant's name in connection with the DNA evidence collected, the police began an investigation of the defendant to determine whether he had any connection to the victim, her family or the location of the murder. No connections were found. The police later obtained a warrant to search the defendant's Facebook records. Those records included a message that the defendant sent at 4:26 on the morning of the murder to a close friend, John Paul Torres, stating, ‘‘[y]o, we need to talk, asap.'' The police also interviewed Torres. Although he provided no useful information during the initial interview, he contacted the police at a later date and disclosed that the defendant had confessed to him that he had killed the victim and set her on fire.

         The defendant was arrested and charged by information with murder, felony murder, burglary in the first degree, sexual assault in the first degree, arson in the first degree and tampering with physical evidence. He was tried before a jury, which returned a guilty verdict on all counts. See footnote 1 of this opinion. This appeal followed.

         The defendant's sole claim on appeal is that the trial court improperly restricted his cross-examination of Torres by barring the defendant from questioning Torres for impeachment purposes about misconduct that Torres allegedly committed as a juvenile. Although, at its core, the defendant's claim is evidentiary in nature, he also asserts a consequent constitutional violation. Specifically, he argues first that the court abused its discretion by precluding inquiry into Torres' juvenile misconduct on the ground that the evidence was cumulative of his adult convictions of larceny and burglary. He next asserts that the court's improper ruling amounted to an impermissible limitation on his right to confront witnesses as guaranteed by the sixth amendment to the United States constitution, which right necessarily includes an opportunity to expose a witness' motive, interest, bias, or prejudice, and to test the witness' veracity and credibility.[5] See State v. Barnes, 232 Conn. 740, 746, 657 A.2d 611 (1995); see also State v. Holley, 327 Conn. 576, 593-94, 175 A.3d 514 (2018) (linking confrontation clause of sixth amendment to defendant's right to present defense); State v. Leconte, 320 Conn. 500, 510, 131 A.3d 1132 (2016) (same). The state argues that the defendant's constitutional claim is unpreserved, but that, regardless of whether the defendant's claim is evidentiary in nature or of constitutional magnitude and therefore amenable to review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the record is inadequate to review the claim. More particularly, the state argues that because the defendant never made an offer of proof regarding how Torres would have responded if the defendant had been permitted to question him regarding his alleged misconduct as a juvenile, this court is left to speculate whether the court's ruling excluded potentially admissible impeachment evidence that harmed the defendant. We agree that the record is inadequate to review the defendant's claim.

         The following additional facts are relevant to our discussion. Prior to the commencement of evidence, the court, Kwak, J., authorized the disclosure of Torres' subpoenaed juvenile arrest records pursuant to General Statutes § 46b-124 (e), and copies were provided to the defendant and the state. The parties were ordered by the court not to disseminate further any information in the juvenile records without the approval of the court. Immediately before Torres was called to testify for the state, the court inquired of the defendant whether he intended to offer any information from Torres' juvenile records. The following colloquy ensued:

‘‘[Defense Counsel]: Basically, Your Honor, it wasn't so much for the record as for the acts themselves that I wanted to question.
‘‘The Court: Which acts?
‘‘[Defense Counsel]: The act of breaking into his father's house in ...

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