Argued
September 21, 2018
Procedural
History
Substitute
information charging the defendant with the crimes of felony
murder, murder, home invasion as an accessory, burglary in
the first degree as an accessory, robbery in the first degree
as an accessory, conspiracy to commit burglary in the first
degree, conspiracy to commit robbery in the first degree, and
hindering prosecution in the second degree, brought to the
Superior Court in the judicial district of Litchfield and
tried to the jury before Danaher, J.; verdict and
judgment of guilty; thereafter, the court vacated the
defendant's conviction of murder and conspiracy to commit
robbery in the first degree, and the defendant appealed.
Affirmed.
Hubert
J. Santos, with whom was Trent A. LaLima, for the appellant
(defendant).
Melissa Patterson, assistant state's attorney, with whom,
on the brief, were David S. Shepack, state's attorney,
and Dawn Gallo, supervisory assistant state's attorney,
for the appellee (state).
Sheldon, Keller and Bright, Js.
OPINION
BRIGHT, J.
The
defendant, Niraj Prabhakar Patel, appeals from the judgment
of conviction of felony murder in violation of General
Statutes (Rev. to 2011) § 53a-54c, home invasion as an
accessory in violation of General Statutes §§
53a-100aa (a) (1) and 53a-8 (a) and (b), home invasion as an
accessory in violation of §§ 53a-100aa (a) (2) and
53a-8 (b), burglary in the first degree as an accessory in
violation of General Statutes §§ 53a-101 (a) (1)
and 53a-8 (a) and (b), robbery in the first degree as an
accessory in violation of General Statutes §§
53a-134 (a) (2) and 53a-8 (a) and (b), conspiracy to commit
burglary in the first degree in violation of General Statutes
§§ 53a-101 (a) (1) and 53a-48, and hindering
prosecution in the second degree in violation of General
Statutes § 53a-166.[1] On appeal, the defendant claims that
the trial court erred in (1) denying his motion for a
continuance, (2) denying his motions for a mistrial, (3)
admitting into evidence the jailhouse recording between a
confidential informant and Michael Calabrese, one of the
defendant's coconspirators, (4) preventing him from
asking certain questions to potential jurors during voir
dire, and (5) giving an improper limiting instruction to the
jury regarding nonhearsay testimony. We affirm the judgment
of the trial court.
The
following facts reasonably could have been found by the jury.
On June 12, 2012, the defendant was arrested by the
Torrington police following a traffic stop. In his vehicle,
the police discovered a black duffle bag containing, among
other things, marijuana and $12, 375 in cash. The defendant,
thereafter, needed money to retain a lawyer and to pay the
person to whom he owed the $12, 375 that the police had
confiscated. The defendant searched for legal loans, fast
cash loans, and cash advances, to no avail. He also,
unsuccessfully, attempted to borrow money from family
members. When these efforts failed, the defendant enlisted
the help of his cousin, Hiral Patel (Patel), and his friend,
Calabrese. The defendant concocted a plan to rob another
friend, Luke Vitalis, who was a marijuana dealer. Calabrese
agreed to help the defendant because the defendant led him to
believe that Vitalis owed money to the defendant, and that
the robbery was a way to obtain the money that Vitalis owed.
The defendant also led Calabrese to believe that he and the
defendant would split the proceeds from the robbery.
The
defendant learned that Vitalis was going to sell $29, 000
worth of marijuana to a client and that the sale was to occur
on the evening of August 5, 2012, at Vitalis' home,
located in Sharon. The defendant then set up his own purchase
from Vitalis for the following evening, with the intention of
robbing him of those proceeds. On August 6, 2012, the
defendant drove Patel and Calabrese to the vicinity of
Vitalis' home. Calabrese was armed with a loaded .40
caliber Ruger handgun, which the defendant had given to him.
Patel
and Calabrese watched the home for a while, and, then, at
approximately 6 p.m., they covered their faces with masks and
put on black hats and gloves, before entering the home and
declaring that it was a home invasion. Vitalis' mother
was in the home, and Patel and Calabrese tied her hands, as
she begged them not to hurt or kill her son. Calabrese then
went upstairs, struck Vitalis with the Ruger, and shot him
three times, killing him and leaving ‘‘chunks of
. . . brain . . . all over the wall.'' Calabrese
could hear Vitalis' mother screaming. Calabrese, soaked
in blood, then searched for Vitalis' money, but was able
to find only $70 and approximately one-half ounce of
marijuana, both of which he took. Patel and Calabrese then
fled the scene, leaving a bloody footprint behind. As they
left the house, one of them was on a cell phone, and
Vitalis' mother heard him saying ‘‘hurry up,
hurry the fuck up.''
Vitalis'
mother was able to free herself, and she called 911. After
the police arrived, they went upstairs and found Vitalis'
body. The police searched the ransacked room and discovered
an empty Pioneer speaker box. In total, the police found $32,
150 in the bedroom, and they discovered .40 caliber shell
casings. They also found a large quantity of marijuana in the
home. After the police had arrived at Vitalis' home, the
defendant, in an effort to mislead the police, sent a text
message to Vitalis' cell phone saying that he was on his
way and would be at Vitalis' home in approximately
forty-five minutes.
Eventually
Patel and Calabrese met up with the defendant. Calabrese
thereafter burned his clothing and his sneakers, which police
later discovered, enabling them to match the print of the
sneaker to that of the bloody footprint left at the scene of
the murder. Calabrese also disposed of the Ruger, which never
was found. Later, the defendant attempted to dispose of a
bulletproof vest, a Ruger pistol box, a magazine, and a
shotgun, leaving the items with relatives in New York City
and repeatedly requesting that his cousin dispose of the
items in different locations.[2]
On
September 11, 2013, the state police arrested the defendant.
Following a trial, the jury, on February 4, 2016, returned a
verdict of guilty on all counts. Specifically, the jury found
the defendant guilty of felony murder, murder under the
Pinkerton doctrine, [3] two counts of home invasion as an
accessory, burglary in the first degree as an accessory,
robbery in the first degree as an accessory, conspiracy to
commit burglary in the first degree, conspiracy to commit
robbery in the first degree, and hindering prosecution in the
second degree. The court, thereafter, rendered judgment in
accordance with the jury's verdict. See footnote 1 of
this opinion. This appeal followed. Additional facts will be
set forth as necessary.
I
The
defendant claims that the court abused its discretion in
denying his motion for a continuance, which was made because
the defendant was experiencing, among other things,
laryngitis and coughing, when he was scheduled to testify on
his own behalf. The defendant argues that his request was
reasonable, supported by his affidavit and the note and
testimony of his physician, and would have involved only a
one day delay in the presentation of evidence in a case that
was well ahead of schedule. He contends that this alleged
error was harmful because it placed him in a bad light before
the jury, which was not able to get an accurate impression of
him in order to assess his credibility. The state argues that
the court acted well within its discretion in denying another
continuance in this matter, especially in light of the fact
that the defendant had gone to work at his family's
business and there was no guarantee that his laryngitis would
have been better with this delay. We conclude that the court
acted well within its discretion.
The
following additional facts inform our review of this claim.
The prosecution rested its case on Wednesday, January 20,
2016. The defendant then requested a continuance to Tuesday,
January 26, 2016. The court granted the request. Over the
weekend, however, the defendant became ill, and was coughing,
vomiting, and experiencing trouble speaking. Defense counsel
notified the court, presented a note from the defendant's
physician, and requested a continuance to Friday, January 29,
2016. The court considered the request, granted a further
continuance to Wednesday, January 27, 2016, and told defense
counsel that he could present witnesses other than the
defendant on that day, thereby giving the defendant another
day to recuperate before testifying.
On
January 28, 2016, the defendant still was experiencing
laryngitis and coughing, with the ability to speak only in a
low voice. His attorney requested a continuance until
Tuesday, February 2, 2016. The prosecution argued that the
defendant had been seen working at his family's business
in the preceding days and that the continuance should not be
granted. Defense counsel conceded that the defendant had been
at the family's business but argued that this was quite
different from testifying in court while experiencing fits of
coughing and having laryngitis. Counsel also argued that to
make the defendant testify while his health and voice were
compromised would violate his rights under both the state and
federal constitutions.
Later
that day, the state presented the testimony of the
defendant's physician, who opined that the defendant was
ill. The physician also stated that he had given the
defendant a prescription on Monday, January 25, 2016. He
further indicated that with this medication, the defendant
should be able to testify approximately seventy-two hours
after beginning the medication. He specifically confirmed
that if the defendant had started his prescription on
Tuesday, he would be ready to testify on Friday, January 29.
He further testified that the defendant had not called his
office for a follow-up visit and had not indicated to him
that the defendant's condition had worsened. On
cross-examination, the physician testified that when he told
the defendant on Monday to take seventy-two hours off, that
meant that the defendant was not supposed to work. When asked
if he would recommend that the defendant take more time off,
he answered ‘‘[n]o.''
Defense
counsel also had the defendant speak his name and address so
the physician could hear the quality of the defendant's
voice. After listening to the defendant, the physician
further opined that the defendant was medically able to
testify with a microphone. The court denied the requested
continuance, noting that it would use the microphone
amplification system and ‘‘turn it up as high as
we need to, '' when the defendant testified on
Friday, January 29, 2016. Defense counsel then requested
permission to make a record and argued that the court's
ruling interfered with the defendant's right to testify
under both the state and federal constitutions. In response,
the state noted that it already had its rebuttal witnesses
make accommodations and that they were on standby. The court
then restated its ruling that the defendant would testify the
next day, noting that (1) the defendant had contributed to
his own problem by not following medical advice when he
returned to work earlier in the week, (2) the defendant's
physician had testified that the defendant could testify, and
(3) the court had an amplification system to project the
defendant's voice.
The
defendant argues that the court abused its discretion when it
denied his request for a continuance. Although he suggests
that the court's ruling under these circumstances
implicates his right to testify under the federal and state
constitutions, he has not made a freestanding constitutional
claim. Instead he has briefed the claim under only the abuse
of discretion standard using the Hamilton factors.
See State v. Hamilton, 228 Conn. 234,
240-41, 636 A.2d 760 (1994). Applying those factors, we
conclude that the court did not abuse its discretion.
‘‘[T]rial
judges necessarily require a great deal of latitude in
scheduling trials. Not the least of their problems is that of
assembling the witnesses, lawyers, and jurors at the same
place at the same time, and this burden counsels against
continuances except for compelling reasons. Consequently,
broad discretion must be granted trial courts on matters of
continuances . . . .'' (Internal quotation marks
omitted.) State v. Bush, 325 Conn. 272,
316, 157 A.3d 586 (2017).
‘‘A
reviewing court is bound by the principle that [e]very
reasonable presumption in favor of the proper exercise of the
trial court's discretion will be made. . . . To prove an
abuse of discretion, an appellant must show that the trial
court's denial of a request for a continuance was
arbitrary. . . . There are no mechanical tests for deciding
when a denial of a continuance is so arbitrary as to violate
due process. The answer must be found in the circumstances
present in every case, particularly in the reasons presented
to the trial judge at the time the request is denied. . . .
‘‘In
appellate review of matters of continuances, federal and
state courts have identified multiple factors that
appropriately may enter into the trial court's exercise
of its discretion. Although the applicable factors cannot be
exhaustively catalogued, they generally fall into two
categories. One set of factors focuses on the facts of record
before the trial court at the time when it rendered its
decision. From this perspective, courts have considered
matters such as: the timeliness of the request for
continuance; the likely length of the delay; the age and
complexity of the case; the granting of other continuances in
the past; the impact of delay on the litigants, witnesses,
opposing counsel and the court; the perceived legitimacy of
the reasons proffered in support of the request; the
defendant's personal responsibility for the timing of the
request; the likelihood that the denial would substantially
impair the defendant's ability to defend himself; the
availability of other, adequately equipped and prepared
counsel to try the case; and the adequacy of the
representation already being afforded to the defendant. . . .
Another set of factors has included, as part of the inquiry
into a possible abuse of discretion, a consideration of the
prejudice that the defendant actually suffered by reason of
the denial of the motion for continuance.''
(Citations omitted; emphasis omitted; internal quotation
marks omitted.) State v. Hamilton,
supra, 228 Conn. 240-41; see State v.
Bush, supra, 325 Conn. 316-17.
In this
matter, the facts of record before the trial court at the
time it rendered its decision were the following. The request
for an additional continuance came during the evidentiary
portion of the trial. The prosecution rested on January 20,
2016, after having presented more than thirty witnesses over
a two week period, and the court granted the defendant a
continuance to January 26, 2016. On January 26, the defendant
requested another continuance, this time due to his illness,
to Friday, January 29, 2016. The court granted another
continuance but only until Wednesday, January 27, 2016, and
it told the defendant that he could present witnesses other
than himself on that date, thereby giving him the additional
day to recover that he had requested.
On
January 28, the defendant, still coughing and asserting that
he was having trouble speaking, requested another continuance
to Tuesday, February 2, 2016, with no guarantees that he
would recover by that date or that his voice would be back to
normal; defense counsel stated that he
‘‘hope[d]'' the defendant's voice
would be better by then. Moreover, the defendant's
physician testified that the defendant was medically able to
testify with a microphone, despite his illness. Additionally,
the court was aware that the defendant had been working at
his family's business and speaking with customers,
although the defendant was arguing that he was not fit to
testify because of illness, and his attorney had believed
that he was home resting during that time. To assist the jury
in better hearing the defendant and others, the court also
instructed that the amplification system be turned up as loud
as needed. On the basis of these facts, which were known to
the trial court at the time of the defendant's request
for a continuance, we conclude that the trial court did not
abuse its discretion in denying the defendant's
request.[4]
II
The
defendant claims that the court erred in denying his motions
for a mistrial, made during and immediately after his
testimony, because the jury had informed the court that it
could not clearly hear the defendant. The defendant argues:
‘‘When the jury informed the court [that] it
could not hear [the defendant], he had already testified
about all of the conduct that may encompass all of the crimes
except hindering prosecution. The court was also aware that
the credibility of [the defendant's] testimony was the
crucial question, and a jury that credit[s] [the
defendant's testimony] must acquit on all charges except,
possibly, hindering prosecution. . . . [Although] the court
was in a difficult position after the jury's note, this
position had no possible remedies to restore [the
defendant's right to a] fair trial.'' We are not
persuaded.
The
following additional facts are necessary to our consideration
of this claim. The day after the court had denied the
defendant's motion for another continuance, he was called
to testify. The defendant explained to the jury that he had
bronchitis and laryngitis, and that this was affecting his
voice. Several times during his testimony, the defendant was
asked to repeat his answers and move closer to the
microphone. The defendant testified about the events that had
occurred before the crimes of which he was accused, ending at
the point where he had dropped off Patel and Calabrese at
Vitalis' home. See footnote 2 of this opinion. The jury
then was excused for its morning break, and it sent a note to
the court stating that it was having trouble hearing the
defendant. The defendant requested that the court poll the
jury to see how many of them did not hear his testimony, and
to ascertain what they did not hear, and he requested that
the court declare a mistrial. The state objected to the
defendant's request, noting that at other points during
the trial, jurors had raised their hands and asked for
testimony to be repeated when they did not hear it, and that
this had not occurred during the defendant's testimony.
The state also noted that defense counsel could take the
defendant through his testimony again if counsel thought it
was appropriate to do so.
The
court denied both the request to poll the jury and the
defendant's motion for a mistrial. At the request of the
jury, the defendant's previous testimony thereafter was
read to the jury. The court also repositioned the
defendant's microphone, placed the speaker directly in
front of the jury, and instructed the jurors that if any one
of them had any further difficulty hearing testimony, she or
he should immediately notify the court by raising her or his
hand. The defendant's live testimony then continued.
Almost immediately, one or more jurors raised his or her
hand, and the amplification system again was adjusted. No
subsequent problems were recorded. Following the
defendant's testimony, he again moved for a mistrial,
which the court denied. The defendant claims the court
committed error by denying his motions for a mistrial. We
disagree.
‘‘[T]he
principles that govern our review of a trial court's
ruling on a motion for a mistrial are well established.
Appellate review of a trial court's decision granting or
denying a motion for a [mistrial] must take into account the
trial judge's superior opportunity to assess the
proceedings over which he or she has personally presided. . .
. Thus, [a] motion for a [mistrial] is addressed to the sound
discretion of the trial court and is not to be granted except
on substantial grounds. . . . In our review of the denial of
a motion for [a] mistrial, we have recognized the broad
discretion that is vested in the trial court to decide
whether an occurrence at trial has so prejudiced a party that
he or she can no longer receive a fair trial. The decision of
the trial court is therefore reversible on appeal only if
there has been an abuse of discretion. . . .
‘‘In
reviewing a claim of abuse of discretion, we have stated that
[d]iscretion means a legal discretion, to be exercised in
conformity with the spirit of the law and in a manner to
subserve and not to impede or defeat the ends of substantial
justice. . . . In general, abuse of discretion exists when a
court could have chosen different alternatives but has
decided the matter so arbitrarily as to vitiate logic, or has
decided it based on improper or irrelevant factors. . . .
Therefore, [i]n those cases in which an abuse of discretion
is manifest or where injustice appears to have been done,
reversal is required.'' (Internal quotation marks
omitted.) State v. Holley, 327 Conn. 576,
628, 175 A.3d 514 (2018).
Although
the defendant's voice may have been low and the jury
initially may have had trouble hearing him due, at least in
part, to problems with the court's amplification
system,[5] the jury properly notified the court,
which took immediate corrective action. The court had the
previous testimony read to the jury in its entirety, and
counsel was permitted to offer corrections to the read back.
The court also adjusted the defendant's microphone, the
speakers, and the amplification system. The court told the
jury to notify it immediately if there was any further
difficulty hearing testimony, and, almost immediately, such
notification was given to the court, which took further
corrective action, and the jury, again, was instructed to
notify the court if any further problems were encountered.
The defendant then resumed his testimony, with no further
problems.
We
readily acknowledge the defendant's concern that the jury
was required to assess his credibility and that its ability
to do so could be compromised if it was unable to hear him.
The shortcoming of the defendant's argument, however, is
that the court corrected the problem with the amplification
system, had the testimony read to the jury, and gave counsel
an opportunity to offer any corrections to the testimony that
was read back, and the defendant resumed his live testimony.
Had defense counsel thought it crucial that the jury hear the
missed testimony live, directly from the defendant, rather
than read back, he could have reinquired of the defendant or
asked the court to strike the prior testimony that the jury
did not hear and allow him to begin anew.[6] He chose not to
do so. It is clear from the record that the jury heard the
defendant's testimony, either live or by virtue of its
being read, and was able to observe the defendant's
demeanor while testifying, [7] and that defense counsel made a
strategic choice not to ask the defendant to reanswer the
questions that the jury originally had difficulty hearing. On
this basis, we conclude that the court did not abuse its
discretion in denying the defendant's motions for a
mistrial.[8]
III
The
defendant next claims that the trial court erred in admitting
into evidence, as statements against penal interest under
§ 8-6 (4) of the Connecticut Code of Evidence, (1) the
jailhouse recording of a confidential informant and
Calabrese, the informant's cellmate, and (2) the
testimony of Calabrese's former girlfriend, Britney
Colwell, who testified to statements made by Calabrese that
implicated the defendant. The defendant first argues that by
admitting the jailhouse recording into evidence, the court
violated his right to confrontation.[9]He contends that
Calabrese's statements were testimonial in nature, and,
even if they were not testimonial, they failed to meet the
requirements of the Connecticut Code of Evidence because they
were not trustworthy or reliable. The defendant argues that
Calabrese's statements to Colwell were unreliable and not
against Calabrese's penal interest. The state argues that
Calabrese's statements in the jailhouse recording were
not testimonial in nature and that their admission into
evidence, therefore, did not violate the defendant's
right to confrontation. Additionally, the state argues that,
as an evidentiary matter, the defendant's claim is not
review-able, but, to the extent that we deem it reviewable,
the statements in the jailhouse recording were both
trustworthy and reliable as dual inculpatory statements and
that their admission, therefore, did not violate the
Connecticut Code of Evidence. We agree with the
state.[10]
The
following additional facts inform our review. After Calabrese
was arrested, he and his cellmate were talking about the
charges that were pending against them. Thereafter, the
cellmate approached a security officer and offered to record
Calabrese. The cellmate was set up with a recording device,
and he recorded his conversation with Calabrese, who was
unaware that he was being recorded. Calabrese told his
cellmate about the events surrounding Vitalis' killing,
implicating himself, Patel, and the defendant.
The
defendant filed a motion in limine seeking to exclude the
jailhouse recording of Calabrese and his cellmate, alleging
that the admission of this recording would be in violation of
the fourth, fifth, sixth, and fourteenth amendments to the
United States Constitution, Article I, §§ 8, 9,
and10 of the Connecticut constitution, and § 42-15 of
the Practice Book. The court denied the motion without
prejudice, explaining that it did not consider the issue
to be final and that it also would permit the defendant, out
of the presence of the jury, to question the cellmate about
the recording before the cellmate testified to the jury. The
defendant has not pointed us to anything in the record that
indicates that the defendant opted to pursue such
questioning.
On the
morning that the cellmate was scheduled to testify, the
prosecutor notified the court and defense counsel that it had
received a letter from Calabrese's attorney stating that
Calabrese would invoke his fifth amendment privilege against
self-incrimination if called to testify at the
defendant's criminal trial and that his attorney would
instruct him to remain silent. The following colloquy then
occurred:
‘‘[The Prosecutor]: I had discussions with Your
Honor and defense counsel on a date prior to today in
anticipation of [the cellmate's] testimony, and I believe
that we had agreed in chambers that a representation made by
way of letter from [Calabrese's attorney] on behalf of
his client would suffice insofar as the foundation necessary
for the dual inculpatory statement's admission.
‘‘The Court: All right. Is . . . the record you
just made sufficient for your purposes or do you want to mark
...