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State v. Montanez

Court of Appeals of Connecticut

October 23, 2018


          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.


          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.


         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 ...

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