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State v. Patel

Appellate Court of Connecticut

November 12, 2019

STATE of Connecticut
Hiral M. PATEL

         Argued May 14, 2019

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         Appeal from the Superior Court in the judicial district of Litchfield and tried to the jury before Danaher, J.

          Richard Emanuel, New Haven, for the appellant (defendant).

         Matthew A. Weiner, 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).

         Alvord, Bright and Bear, Js.


         ALVORD, J.

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          [194 Conn.App. 249] The defendant, Hiral M. Patel, appeals from the judgment of conviction of murder in violation of General Statutes § 53a-54a, home invasion in violation of General Statutes § 53a-100aa (a) (1), burglary in the first degree as an accessory in violation of General Statutes § § 53a-101 (a) (1) and 53a-8 (a), robbery in the first degree as an accessory in violation of General Statutes § § 53a-134 (a) (2) and 53a-8 (a), conspiracy to commit burglary in the first degree in violation of General Statutes § § 53a-101 (a) (1) and 53a-48, and tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1).[1] On appeal, the defendant claims that (1) the court erred in admitting into evidence dual inculpatory statements of his coconspirator, Michael Calabrese; (2) the court erred in precluding the defendant from introducing into evidence a statement of Shyam Patel (Shyam), a cousin of the defendant, that was against his penal interest; (3) the court [194 Conn.App. 250] erred in admitting historical cell site location information without conducting a Porter [2] hearing; and (4) there was insufficient evidence adduced at trial to sustain his conviction of murder on a theory of Pinkerton [3] liability. We affirm the judgment of the trial court.

          The jury reasonably could have found the following facts. On June 12, 2012, police arrested Niraj Patel (Niraj), the defendant’s cousin, after a motor vehicle stop and seized $12,575 from his person and his vehicle. He was charged with criminal attempt to possess more than four ounces of marijuana, interfering with an officer, tampering with evidence, possession of drug paraphernalia, and motor vehicle charges. Following his arrest, Niraj unsuccessfully attempted to borrow money from family members to pay his attorney.

          Niraj thereafter formed a plan to rob Luke Vitalis, a marijuana dealer with whom Niraj had conducted drug transactions. Vitalis lived with his mother, Rita G. Vitalis, at 399 Cornwall Bridge Road in Sharon. On August 3, 2012, Niraj sent a text message to the defendant, stating: "I throw you some dough to do this if you have to bring Diva," who was the defendant’s family dog. The defendant responded by stating: "You fig a ride out." Niraj responded: "Yes." The defendant replied: "Word." Niraj also offered Calabrese, a friend, money to participate in the robbery.

         Niraj knew that Vitalis had sold ten pounds of marijuana from his home on August 5, 2012, and set up a transaction with Vitalis for the following day, with the intention of robbing Vitalis of his proceeds of the previous sale. On August 6, 2012, Niraj drove Calabrese and the defendant to the area of Vitalis’ home and dropped them off down the road. Calabrese and the defendant ran through the woods to Vitalis’ home. They [194 Conn.App. 251] watched the home and saw Vitalis’ mother come home. At approximately

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6 p.m., Calabrese and the defendant, wearing masks, bandanas, black hats, and gloves, entered the home, encountered Vitalis’ mother, and restrained her using zip ties. Calabrese, armed with a Ruger handgun that he received from Niraj, went upstairs and encountered Vitalis in his bedroom. He struck Vitalis with the handgun and shot him three times, killing him. Calabrese searched the bedroom but could find only Vitalis’ wallet with $70 and approximately one-half ounce of marijuana, both of which he took. Calabrese and the defendant ran from the property into the woods, where the defendant lost his cell phone. Calabrese and the defendant eventually met up with Niraj, who was driving around looking for them. Calabrese burned his clothing and sneakers on the side of Wolfe Road in Warren.[4]

          After freeing herself, Vitalis’ mother called 911. State police troopers arrived at the scene at approximately 6:14 p.m. and found Vitalis deceased. Some of the drawers in the furniture in Vitalis’ bedroom were pulled out. The police searched the bedroom and found $32,150. They also found marijuana plants growing in the home and outside, 1.7 pounds of marijuana inside Vitalis’ bedroom closet, and evidence of marijuana sales.

          The defendant’s parents, who were traveling out of state on the day of the crime, owned a package store in Madison. While the defendant’s parents were away, the defendant was supposed to assist the store’s employee, James Smith, and provide him with a ride home at night. On the afternoon of the day of the crime, Smith called the defendant to ask him to pick up single dollar bills for the store, but could not get in touch with [194 Conn.App. 252] him. The defendant’s parents also could not reach him and, eventually, they called a family member, Sachin Patel (Sachin). Sachin left his job at 6:30 p.m. and arrived at the store at about 7 p.m. After Sachin could not reach the defendant on his cell phone, Sachin went to the defendant’s house in Branford, let the dog out, and continued to call the defendant from the house phone. Sachin left the defendant’s house at about 8:30 p.m. and returned to the store to give Smith a ride home.

          On September 11, 2013, the defendant was arrested. Following a trial, the jury, on February 1, 2017, returned a guilty verdict on all counts. The court, thereafter, rendered judgment in accordance with the jury’s verdict. See footnote 1 of this opinion. The court imposed a total effective sentence of forty-five years of imprisonment, execution suspended after thirty-five years and one day, twenty-five years of which were the mandatory minimum, with five years of probation. This appeal followed. Additional facts will be set forth as necessary.


         The defendant first claims that the court erred in admitting into evidence "dual inculpatory statements" made by Calabrese. First, he contends as a threshold matter that the state failed to prove Calabrese’s unavailability because Calabrese was not under oath when he invoked his fifth amendment privilege. Next, he claims that Calabrese’s statements made to a jailhouse informant, Wayne Early, were testimonial, and that the introduction into evidence of the recording of those statements violated his federal and state confrontation and due process rights. He further contends that the recording and the testimony of Britney

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Colwell, Calabrese’s girlfriend at the time of the crime, regarding statements Calabrese made to her, also were inadmissible pursuant to § 8-6 (4) of the Connecticut Code of Evidence. We consider each of these claims in turn.

         [194 Conn.App. 253] A

          As a threshold matter, the defendant contends that "the court erred in finding that Calabrese was ‘unavailable’ because Calabrese was not under oath when questioned about his fifth amendment privilege." The defendant acknowledges that his claim is unpreserved but nevertheless seeks review pursuant to the bypass doctrine set forth by our Supreme Court in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), or reversal pursuant to the plain error doctrine.[5] The state argues that the defendant’s argument is meritless, emphasizing the defendant’s "fail[ure] to cite a single case that holds that a trial court’s finding of ‘unavailability’ must be based on the sworn testimony of the purportedly unavailable witness."[6] We agree with the state that the court did not err in finding Calabrese to be unavailable and, therefore, the defendant has not shown the existence of a constitutional violation or met the stringent standard for relief pursuant to the plain error doctrine.[7]

         [194 Conn.App. 254] The following additional procedural history is relevant. On the morning of January 4, 2017, the court stated that defense counsel wanted a "record to be made as to whether ... Calabrese would be willing to testify if he were called by either party in this case or if, alternatively, he would seek to invoke his rights under the fifth amendment." Defense counsel represented his understanding "that the state does not intend to call this gentleman based on their understanding that he’s going to invoke his fifth amendment privilege. It is my position that, if that’s to be done, it should be done by the witness himself ... on the record in court; his lawyer can’t do it for him." Calabrese was present in court with his counsel, Attorney Gerald Giaimo. Responding to the court’s inquiry, Calabrese stated that he had the opportunity to talk with Attorney Giaimo about the proceeding. In response to the court’s question concerning whether he would answer questions if he were called as a witness in the defendant’s case, he stated that he "would

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plead the fifth." In response to the court’s follow-up questions, Calabrese confirmed that he planned to invoke his rights under the fifth amendment. The court inquired of the parties whether there was "any question in the mind of either party as to whether this is a valid invocation of the fifth amendment privilege," and defense counsel responded that he had "no question about that" but requested "a follow-up question in terms of whether or not he would intend to invoke his fifth amendment rights with respect to every question he might be asked, not just generally." Defense counsel asked to inquire, and the state objected. The court indicated that it did not think it was necessary for defense counsel to inquire. Defense counsel stated that he wanted to know whether Calabrese’s invocation of the fifth amendment "applie[d] to every question that is asked of him relevant to this case." The court then asked Calabrese: "[i]f you were to be asked questions about the facts of this case by [194 Conn.App. 255] either party, what position would you take?" Calabrese stated that he would "take the fifth." The court then asked: "Anything further?" Defense counsel responded: "Nothing from me."

          The court found that Calabrese had made a valid invocation of his fifth amendment privilege, stating that it believed that if "Calabrese were to answer any questions relative to the facts of this case, they could have a tendency to incriminate him." The court again asked whether there was "[a]nything further from either party," to which defense counsel responded, "[n]othing further."

         "Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original; internal quotation marks omitted.) State v. Walker, 332 Conn. 678, 688, 212 A.3d 1244 (2019). We conclude that the defendant’s claim is reviewable under the first and second prongs of Golding . Accordingly, we turn to the third prong of Golding — namely, whether the defendant has established a violation of his sixth amendment confrontation rights.

         In support of his claim that his sixth amendment right to confrontation was violated, the defendant cites State v. Cecarelli, 32 Conn.App. 811, 821, 631 A.2d 862 (1993). In Cecarelli, the trial court accepted the representation made by counsel for a witness that the witness would invoke his fifth amendment privilege regardless of the question he was asked. Id., at 817, 631 A.2d 862. The witness did not [194 Conn.App. 256] appear in court, and the court denied the defendant’s request for a hearing to determine whether a valid privilege properly was claimed as to questions concerning the scope and extent of the witness’ actions as a police informant. Id., at 817-18, 631 A.2d 862. On appeal, this court concluded that the trial court’s failure to hold a hearing implicated the defendant’s constitutional right to present a defense. Id., at 821, 631 A.2d 862. Noting that "a question-by-question invocation of the privilege against self-incrimination may not be required under all circumstances," this court concluded that the sustaining of a blanket privilege claim was not appropriate given the circumstances before the trial court, and that a hearing was required. Id., at 820, 631 A.2d 862.

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          Cecarelli is distinguishable from the present case in that the defendant in Cecarelli challenged the witness’ assertion of his constitutional privilege on the ground that it might not pertain to all of the questions the defendant sought to ask regarding his entrapment defense. Specifically, this court reasoned: "We cannot speculate that the defendant’s entrapment defense may be inextricably bound up with a scheme of criminality on the part of [the witness] and that all questions asked of [the witness] to corroborate that defense might require answers tending to incriminate him. That determination may be reached only at a hearing for that purpose, which would allow the trial court to explore the basis, if any, of the witness’ refusal to testify, if he does, in fact, invoke his privilege." Id., at 821, 631 A.2d 862. Here, the defendant makes no claim that Calabrese’s constitutional privilege might not have pertained to all of the questions that would have been asked of him.

         On point with this case is State v. Nieves, 89 Conn.App. 410, 417, 873 A.2d 1066, cert. denied, 275 Conn. 906, 882 A.2d 679 (2005). In Nieves, this court rejected the defendant’s claim "that the [trial] court violated his sixth amendment right to present a defense simply by [194 Conn.App. 257] failing to hold a hearing, requiring [the witness] to take the stand and personally to invoke his fifth amendment privilege." Id. In Nieves, the court permitted the witness’ counsel to represent that his client would invoke his fifth amendment privilege against self-incrimination as to all questions. Id., at 416-17, 873 A.2d 1066. The defendant did not request a hearing but moved to compel the witness to testify. Id., at 416, 873 A.2d 1066. On appeal, this court noted that "there is no claim that [the witness] might have answered some relevant questions that would go to the defendant’s defense"; id., at 418-19, 873 A.2d 1066; and found the defendant’s argument premised solely on the fact that the witness personally did not invoke the privilege at a hearing unavailing. Id., at 420-21, 873 A.2d 1066.

          The defendant’s sole challenge to the court’s unavailability finding is that Calabrese had not been administered an oath prior to his testimony, during a hearing before the court, that he would assert his fifth amendment privilege not to testify. The defendant does not contend that Calabrese would have answered some questions or that the court’s inquiry of Calabrese as to his personal invocation of the privilege was deficient in substance. We cannot conclude that the court’s failure to have Calabrese sworn in violated the defendant’s sixth amendment right to confrontation or constituted plain error. Accordingly, the court did not err in finding Calabrese to be unavailable.


          Having concluded that the court did not err in finding Calabrese to be unavailable, we now consider the defendant’s claim that the court improperly admitted into evidence Calabrese’s statements to Colwell and Early.

          The following additional facts and procedural history are relevant. In statements made to Colwell on the day of Vitalis’ killing, Calabrese admitted his participation in the robbery. Subsequently, in September, 2013, Calabrese detailed the events surrounding Vitalis’ killing, [194 Conn.App. 258] implicating himself, Niraj, and the defendant, in a recorded statement to a confidential inmate informant.

         Our analysis of this issue requires discussion of filings in Niraj’s trial on charges stemming from the same incident.[8] In Niraj’s

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trial, he filed a motion in limine seeking to preclude the state from introducing into evidence out-of-court statements made by Calabrese in lieu of his live testimony, contending that the admission of his statements would violate the fourth, fifth, sixth and fourteenth amendments to the United States constitution, article first, § § 8, 9 and 10 of the Connecticut constitution, and Practice Book § 42-15. See State v. Patel, 186 Conn.App. 814, 831, 201 A.3d 459, cert. denied, 331 Conn. 906, 203 A.3d 569 (2019). On December 31, 2015, the court issued a ruling denying Niraj’s motion without prejudice.

         Addressing Calabrese’s statements to Early, the court noted the passage of time, thirteen months, as a factor weighing against the trustworthiness of the statements. The court further considered that Calabrese’s statements "were made to a fellow inmate who appeared to the defendant to be a fellow gang member, and one who was facing serious charges." The court found that the statements were "replete with specific details of the crime," and stated that inconsistencies identified by the defendant were not as significant as they appear [194 Conn.App. 259] and "pale[d] in comparison to the myriad details of the crime that could only be known to a participant in the crime." Considering the extent to which the statements were against Calabrese’s penal interest, the court noted that Calabrese explicitly stated that he killed Vitalis and "ma[de] clear that any other person involved is less culpable than he is." The court also considered that Calabrese had initiated the discussion about the crime on September 3, 2015, and that Calabrese had made statements to Colwell that were consistent with his statements to Early. Last, the court stated that the state offered cell phone location evidence linking Calabrese to the crime. The court concluded that Calabrese’s statements to Early were admissible as statements against penal interest pursuant to § 8-6 (4) of the Connecticut Code of Evidence. The court further concluded that Calabrese’s statements to Early were not testimonial.

          Regarding Calabrese’s statements to Colwell, the court found that the statements constituted declarations against penal interest pursuant to § 8-6 (4), in that the "statements were made to a confidante; they were made just before, on the day of, and the day after, the homicide. Their trustworthiness lies in not only the foregoing facts, but in their consistency with other physical evidence in the case, including the time of the statements relative to the event; the specific admissions of theft that were consistent with other evidence relative to the theft and the statements regarding clothing that were consistent with the declarant’s efforts to destroy clothing that might carry evidence of the crime."

         In the trial underlying this appeal, on August 3, 2016, the defendant filed a similar motion in limine seeking to preclude the state from offering into ...

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