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State v. Patel

Court of Appeals of Connecticut

January 8, 2019

STATE OF CONNECTICUT
v.
NIRAJ PRABHAKAR PATEL

          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 ...

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