Argued
April 19, 2018
Procedural
History
Substitute
information charging the defendant with the crimes of murder,
conspiracy to violate the dependency-producing drug laws,
carrying a pistol without a permit and criminal possession of
a firearm, and information charging the defendant with
violation of probation, brought to the Superior Court in the
judicial district of Fairfield, where the court, Pavia,
J., ordered that the charges of criminal possession of a
firearm and violation of probation be tried to the court;
thereafter, the charges of murder, conspiracy to violate the
dependency-producing drug laws and carrying a pistol without
a permit were tried to a jury; subsequently, the court denied
the defendant's motions to preclude certain evidence and
for a mistrial; thereafter, the charge of violation of
probation was tried to the court; verdict of guilty of
murder, conspiracy to violate the dependency-producing drug
laws and carrying a pistol without a permit; subsequently,
the charge of criminal possession of a firearm was tried to
the court; thereafter, the court denied the defendant's
motion for a new trial; judgment of guilty of murder,
conspiracy to violate the dependency-producing drug laws,
carrying a pistol without a permit and criminal possession of
a firearm, and judgment revoking the defendant's
probation, from which the defendant appealed.
Affirmed.
Erica
A. Barber, assigned counsel, for the appellant (defendant).
Ronald
G. Weller, senior assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Joseph T. Corradino, senior assistant state's attorney
for the appellant (state).
Alvord, Prescott and Beach, Js.
OPINION
ALVORD, J.
The
defendant, Elizardo Montanez, appeals from the judgment of
conviction, rendered following a jury trial, of murder in
violation of General Statutes § 53a-54a (a), conspiracy
to violate the dependency-producing drug laws in violation of
General Statutes §§ 53a-48 and 21a-277 (a), and
carrying a pistol without a permit in violation of General
Statutes § 29-35 (a), and, following a court trial, of
criminal possession of a firearm in violation of General
Statutes § 53a-217 (a) (1). The defendant also appeals
from the judgment revoking his probation after the trial
court found him to be in violation of his probation in
violation of General Statutes § 53a-32. On appeal, the
defendant claims that (1) he was denied his right to due
process and trial by a fair and impartial jury when the court
denied his request for a mistrial after a bullet hole was
discovered in the jury room during deliberations, and (2) the
trial court abused its discretion in concluding that drive
test survey data is admissible under the test for
admissibility of scientific evidence set forth in State
v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert.
denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645
(1998). We affirm the judgments of the trial court.
The
jury reasonably could have found the following facts. At the
defendant's request, Jesus Gonzalez contacted the victim,
Ernesto Reyes-Santos, on April 7 or 8, 2014, to ask him to
bring heroin from New York to Bridgeport. Gonzalez knew the
victim through their heroin sales together. The victim would
supply Gonzalez with heroin, and Gonzalez would bring
customers to the victim. Gonzalez had also known the
defendant for a long time, and the defendant became involved
with Gonzalez and the victim's heroin business. The
defendant told an acquaintance, Valerie Gomez-Delavega, with
whom he socialized daily, that Gonzalez had someone coming
from New York with drugs that the defendant needed her to
try. He also told her that they were going to rob the person
from New York and that they would have to kill him so that no
one would retaliate.
On
April 9, 2014, Gonzalez agreed to meet the victim in
Bridgeport on Davis Avenue, near where Gonzalez lived.
Gonzalez drove his white Jeep Cherokee to the meeting spot at
about 9 p.m., and the defendant walked from around the corner
and got into the Jeep's front passenger seat. The victim
arrived and got into the Jeep's backseat, sitting behind
the passenger seat. The victim then ‘‘had words
with the defendant.'' The defendant wanted to bring
the heroin somewhere to have someone try it. The victim
refused and exited the Jeep. The defendant also exited the
Jeep and shot the victim, who later died of the gunshot wound
at a hospital.[1]
Gonzalez
then drove home and, at 9:24 p.m., called the defendant, who
came to Gonzalez' house. When he arrived, the defendant
pointed a gun at Gonzalez and said that if Gonzalez told
anyone what happened he would kill him. The defendant also
took Gonzalez' cell phone. The day after the victim was
shot, the defendant asked Gomez-Delavega whether she had
heard about the killing. He told her that they robbed the
victim and that he had shot and killed him. The defendant
said that he pulled the trigger and shot the victim as the
victim reached for the gun, and that the victim fell out of
the Jeep.
A
couple of days later, the defendant told Gonzalez to get rid
of the Jeep and said that he would pay Gonzalez for it.
Gonzalez parked it somewhere with the key in it and never saw
it again. When Gonzalez asked the defendant why he did it,
the defendant responded that ‘‘he was
mad.'' Gonzalez told his girlfriend, Latasha Vieira,
that the Jeep had been stolen, and Vieira reported it stolen
to the police on May 8, 2014. Sometime after that date, the
defendant went to the Walmart pharmacy where Vieira worked to
find out whether Gonzalez had told her anything, and he asked
her to leave with him after work. Vieira said no, and the
defendant grabbed her as she walked away. She pushed him back
and told him to leave and not come back.
The
defendant was arrested on July 14, 2014.[2] Thereafter, the
defendant was tried before a jury and found guilty of murder,
conspiracy to commit a violation of the dependency-producing
drug laws, and carrying a pistol without a
permit.[3] The court sentenced the defendant to a
total effective term of fifty-two and one-half years of
incarceration, followed by seven and one-half years of
special parole. This appeal followed. Additional facts will
be set forth as necessary.
I
The
defendant first claims that he was denied his right to a fair
trial by an impartial jury after his motion for a mistrial
was denied. Specifically, he claims that jurors, during
deliberations, ‘‘discovered bullet holes in the
jury room'' and that ‘‘there was no
conceivable cure for the potential bias that may have
developed in jurors' minds as a result of this
interference into the required solemnity of the trial
process.'' The state responds that ‘‘the
jurors were not in the deliberation room when the hole was
created, and . . . there was no evidence that the incident
was related to this case. Moreover, the trial court's
thorough canvass of the jurors confirmed that they could
continue deliberations without any prejudice to the
defendant.'' Accordingly, the state argues that the
court acted within its discretion in denying the motion for a
mistrial. We agree with the state.
The
following additional facts and procedural history are
relevant to the defendant's claim. On the afternoon of
January 28, 2016, the jury's second day of deliberations,
the jury delivered a note to the court requesting to go home
for the day. The court agreed to release the jury for the
day, and when the jury entered the courtroom, the court
released the jury for the evening. At that time, the court
asked: ‘‘Is there a question?'' One of
the jurors responded, stating: ‘‘There's a
bullet hole in our window and the ceiling, and it's
really disconcerting, and it wasn't there
yesterday.'' The court responded: ‘‘All
right. So, the maintenance has been notified. I know that you
had asked to see a marshal, and maintenance has been
notified. They're going to check it out. I'll give
you an update tomorrow when we figure out exactly what it is,
okay?'' After the jurors were released for the day
and exited the courtroom, the court addressed counsel:
‘‘Nobody has seen it yet. We'll have
maintenance take a look. I'm not saying that it's a
bullet hole; I don't know what it is, but let's have
somebody look at it and then we'll give them an update.
They're obviously concerned about it; they've
mentioned it to the marshals; they've mentioned it here.
The only question is whether we use a different room, then,
for purposes of deliberation. If it's bothering them, I
certainly don't want to distract them or-the word
disconcerting, you know, you just don't want that. But I
think it might make them feel better if we at least tell them
what it is, one way or the other; so, we'll address that
tomorrow, okay?''
The
next morning, defense counsel made an oral motion for a
mistrial pursuant to Practice Book § 42-43. He argued,
in part: ‘‘The Practice Book says that upon
motion of a defendant, the judicial authority may declare a
mistrial at any time during the trial if there occurs during
the trial an error or legal defect in the proceedings, or any
conduct inside or outside the courtroom which results in
substantial and irreparable prejudice to the defendant's
case.
‘‘And
it's very concerning that this incident could cause
irreparable damage. The jurors have not been interviewed yet,
and I don't think we're going to interview them one
by one, but there has to be a natural concern here that a
young man was on trial for a shooting death is now being-his
guilt or innocence is going to be determined by a group of
twelve that believed possibly that someone is firing a gun
into the jury room.''
The
state opposed the motion, arguing that there was no
connection between the bullet hole incident and the case
before the jury. It further contended that any potential
prejudice could be avoided by an instruction to the jury that
it should not hold the incident against the defendant and
should decide the case only on the basis of what it heard in
court. In its ruling, the court stated: ‘‘I am
going to deny the motion as it stands right now. We
haven't inquired of the jury. The jurors brought it to
our attention, and we addressed it immediately. I'm going
to give them an instruction now. I'm going to inquire in
terms of whether they're able to follow that instruction.
I think that perhaps based on their response to that, that
may warrant further discussion on this motion. But right now,
on the four corners of the evidence that we have, the motion
is denied. Now, I do want to put some things on the record in
terms of how this occurred and the surrounding circumstances.
But I think that perhaps first we'll address the jury and
then just so that the record's very clear, let's put
some things on the record so it's there for any further
review, okay?''
After
the jury entered the courtroom, the court gave the following
instruction: ‘‘So, in response to where we ended
yesterday, I obviously was concerned with what you had
brought to my attention. We brought that to the attention of
the police department, both the local and the state police.
It is being reviewed and investigated by them right now,
which is one of the main reasons that we are not in that
courtroom right now. We also obviously don't want that to
be a distraction to you at all. It is, as I said, being
reviewed, and they will look into that fully, and I
appreciate your bringing that to our attention.
‘‘Now,
in terms of this case itself, I'm giving you this
instruction. The fact that obviously you brought this issue
to our attention, and that it is being reviewed and
investigated right now, is completely and totally unrelated
to the case at hand, all right? There is zero suggestion that
it relates to this case, and it is certainly not part of the
evidence in this case. So, I am instructing you that you must
keep that out of your mind as you're deliberating.
‘‘The
defendant is entitled to his presumption of innocence and to
the fact that you can impartially look at and review all of
the evidence that has been presented in this case. That also
means that you may infer no negative inference upon the
defendant in any way in relation to this issue.
‘‘The
deliberation process must continue based only on the evidence
that was presented here in this courtroom while the court was
in session. And you must not concern yourself with this issue
at all in your deliberations. So, having said that, I'm
going to ask all members of the jury to go back and report to
me whether or not, and you don't have to do this
individually, this can be done as a whole, whether or not you
feel that you could follow that instruction; whether you
could at this point continue to deliberate on this matter
based only on the evidence presented in this courtroom while
the court was in session, and not concern yourself in any
manner whatsoever with this other issue and not hold it in
any way against the defendant, all right? So, I'm going
to ask that you all retire and write that in a note to me if
you could. Thank you.''
After
the jury exited, the court inquired of counsel whether there
was ‘‘[a]nything else that you'd like me to
indicate to them . . . .'' Both counsel responded in
the negative, and defense counsel replied: ‘‘I
think you covered it.'' The court followed up with
defense counsel, remarking: ‘‘I know it's
your motion right now. If there's a specific inquiry that
you think I didn't make, then obviously you could let me
know.'' Defense counsel responded: ‘‘No,
I think what you did is sufficient because the ultimate
question at this moment in time is whether they can continue
to serve and follow the court's instructions, and
disregard yesterday's incident. That is the ultimate
question. So, I think what you did is sufficient.''
The
court then placed the following on the record:
‘‘So, one thing I wanted to address was really
just the sequence of events that the jury brought to the
court's attention at the end of the day; the fact that
they believed that there was in fact a bullet hole through
the window; that I asked counsel to remain present so that we
could all see it for ourselves. We all did, I think both
state's attorneys, defense, myself, went back into the
jury room. We went back into the jury room, and I wanted to
make this clear for the record. After the clerk had gone in
and taken out all of the exhibits, had taken out the
notebooks, and had been able to secure what was a chalkboard
in a situation where nobody could view or see the chalkboard.
Ultimately, that chalkboard had to be transported down to
this jury room, and what the clerks did was, they put large
paper that was secured and taped around both sides of the
chalkboard, and it was transported in that fashion. I
certainly did not see anything, counsel did not see anything,
and all of the evidence remains secure and away from
anybody's ability to review it.''
At this
point, the jury delivered a note, which the court read aloud
and marked as the court's exhibit seven. The note, signed
by the foreperson, stated: ‘‘We are fine with
continuing our deliberations without any prejudice.''
The court then indicated that it would continue making a
record of the incident before hearing any further argument
from counsel.
The
court continued: ‘‘So, the marshals were there
for the viewing. At that point, we called in the state
police, as they do have jurisdiction. As circumstance had it,
the Bridgeport police crime scene unit came in to have a
warrant signed, and they were able to inquire as to whether
there had been any reports of shots fired or any complaints
that had occurred last night or in the immediate vicinity to
the trial. And they had indicated that they did not, and so
the state police took over the investigation and they
continued to do that throughout the night. It is my
understanding that they are in the courtroom now. I believe
the major crime squad is here. They have blocked off the
courtroom so that they can try to secure the evidence and
complete the investigation. I know that we have additional
presence in the building today in terms of just making sure
that security is okay as they continue this investigation.
There is an article that apparently just hit the [news]papers
relating to this incident.''
The
court then discussed with counsel the newspaper articles
describing the incident, and the court indicated that the
jury would be instructed that it may not review any media
reports. The court further noted that the articles had been
released after the jurors had reported for the day, and thus,
they would not have seen them. After agreeing with the court
that the record should reflect that ‘‘it would
likely be impossible for the jurors to see'' a
particular article that included the defendant's name,
defense counsel stated: ‘‘Other than that, I
don't have anything else that needs to be added. I think
the court covered it well, and your review is
accurate.'' The jury continued its deliberations
until it returned with a question regarding proximate cause.
The court further instructed the jury regarding proximate
cause, and the jury recommenced deliberations. That
afternoon, January 29, 2016, the jury returned its verdict.
On
February 1, 2016, the defendant filed a motion for a new
trial, arguing in part that the court had improperly denied
his motion for a mistrial because the bullet hole incident
had resulted in ‘‘substantial and irreparable
prejudice to the defendant's case.'' During oral
argument on the motion for a new trial, defense counsel
represented that he became aware that the jurors had tried to
determine the direction from which the bullet may have been
shot and that the jurors had requested a state trooper escort
to their cars after returning their verdict. The state
responded by repeating that the jury was not in the room when
the bullet was fired, and that the jury
...