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Date: 07-15-2016
Case Style: STATE OF CONNECTICUT v. LUIS SANCHEZ
Case Number: AC 38310
Judge: Raheem L. Mullins
Court: Connecticut Supreme Court
Plaintiff's Attorney: Rocco A. Chiarenza, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistantstate’s attorney
Defendant's Attorney: Susan M. Hankins
Description: Following a jury trial, the defendant, Luis Sanchez, was convicted of one count of murder in violation of General Statutes § 53a-54a and two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (5). On appeal, the defendant claims that the trial court erred in (1) admitting, as proof of intent, prior misconduct evidence regarding his involvement in a shooting that had occurred fifteen months before the charged crimes, in which he used the same gun that he used in the charged crimes, and (2)chargingthejurythatthismisconductevidencewas admitted to prove the intent elements of the charged crimes.1 We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On theevening of October 6,2010, the defendant, his half-brother Justin Bonilla, and his friends Gina Colon, Santos Gonzalez, Gabriel Rivera, and Akeem Wilis attended an ‘‘open mic’’ night at the Franklin Bar and Grill (bar) on the corner of Franklin Avenue and Brown Street in Hartford. Gonzalez drove the group to the bar in his car. At the bar’s entrance, an individual employed by the event’s organizer to provide security patted down male patrons to make sure that no one entered with a weapon. Prior to entering the bar, the defendant concealed a gun under the driver’s seat of Gonzalez’ car. In the early morning hours of October 7, 2010, someonejostledorspilledadrinkonafemalepatron,precipitating a disturbance near the bar’s stage. Bobby Forbes and Joseph Schroeter were onstage with the performer when the disturbance began. Shortly after that disturbance, a fight broke out elsewhere in the bar. At the start of the fight, the defendant, Bonilla, and Wilis left the bar via the Brown Street exit. As the defendant left the bar, a security guard, Quron Zene, heard the defendant say ‘‘somebody get a ratchet.’’2 After exiting the bar, the defendant retrieved his gun from Gonzalez’ car. After the physical fighting broke out, the bar’s owner began ushering patrons to the exits. Before being ejected from the bar, Forbes put an empty beer bottle in the pocket of his red and black jacket.3 As patrons exitedthebar,theycongregatedatthecornerofFranklin Avenue and Brown Street. The defendant calmly walked from Gonzalez’ car to a position in front of a bank across the street from the bar. From there, he fired gunshots into the crowd. He fired an initial volley of shots into the crowd, then paused before firing a second volley of shots in the same direction. In all, he fired twelve shots into the assembledcrowdinthetwoseparatebursts.Thedefendant’s gunfire struck Jeanna Flores, who was standing in the crowd, in the back of the head, causing her
death. The defendant’s gunfire also struck Forbes and Schroeter, causing them injuries.4 Aftertheshooting,thedefendantandhiscompanions fled the scene in Gonzalez’ car. As the group drove away, the defendant asked Wilis if he had seen ‘‘the way [the defendant] let them have it’’ and told Wilis that he ‘‘had to do it.’’ The following afternoon, the defendant and Colon fabricated an alibi according to which the defendant and Wilis left the bar with some women before the disturbance began. The defendant and Colon also asked Colon’s cousin, Aida Rojas, to corroborate their false alibi by telling the police, if they questioned her, that the defendant had spent the night at her house. A few weeks later, Rojas drove Colon and the defendant to the riverfront in Hartford, where the defendant threw the gun he had used in the shooting into the river. Sometime thereafter, the police questioned Rojas. Rojas initially gave police the false alibi that the defendant was not at the bar, but rather had spent the night at her house. The defendant also gave the police the false alibi, telling them that he had left the bar before anydisturbanceandhadspentthenightatRojas’house. Rojaslateradmittedtothepolicethatthealibiwasalie. The police also questioned Colon. Colon gave the police two different and contradictory statements regarding the shooting outside the bar. When questioned initially, she did not mention that the defendant was present, in keeping with the fabricated alibi. Later, after having been charged with tampering with a witness and hindering prosecution for having solicited Rojas to lie, Colon divulged that on the day after the shooting the defendant told her that ‘‘someone pulled out a gun and he had to do what he had to do’’ because otherwise someonecould havebeen shot,and ‘‘itcould have been [Colon].’’ The following procedural history is also relevant. On October 26, 2011, after the state had convened a grand jury to investigate the events of October 6-7, 2010, Michael Sullivan, an inspector in the cold case unit of the Chief State’s Attorney’s Office, informed the defendantthathewasthetargetoftheinvestigation.Sullivan told the defendant that he had a right to testify before the grand jury. The defendant denied knowledge of or involvement in the shooting. In response, Sullivan remarked that ‘‘there’s a lot of ways that people die in a shooting that is not necessarily murder,’’ including when you shoot at someone else in order to protect yourself.Thedefendantmaintainedthathehadnothing to do with a murder. Prior to the start of trial, the state filed notice of its intent to offer prior misconduct evidence. Specifically, the state sought to offer evidence that in 2009, an individual named Fred Colby5 had identified the defendant
as one of two individuals who had threatened him with automatic handguns, then fired at him as he fled the scene in his vehicle. The state represented that a 9mm shell casing recovered from the scene of the 2009 incidentmatchedthecasingsrecoveredinthepresentcase, thereby establishing that they had been fired from the same gun. The state sought admission of the evidence ontwoseparatebases:(1)asrelevanttothedefendant’s intent to commit murder and assault; and (2) as evidenceofthedefendant’sidentityastheshooterbecause it demonstrated that he possessed the instrumentality or means to commit these crimes. On September 12, 2013, the court heard argument from the partiesas to whether itshould admit evidence of the 2009 incident, at the conclusion of which it reserved decision on the matter. On October 10, 2013, the court heard additional argument and preliminarily ruled that the evidence was admissible. On October 21, 2013, the fifth day of the defendant’s trial, the court heard testimony outside the presence of the jury from Megan Pytlik, a lab technician who had matched the shell casing from the 2009 incident to the casings recovered in the present case, and from Pytlik’ssupervisor,JamesStephenson,whoverifiedthe results of Pytlik’s examination. Afterward, the court ruled that the evidence of the defendant’s involvement in the prior shooting was admissible.6 The jury subsequently heard testimony regarding the 2009 incident from three witnesses: Colby; Luis Raimundi, an officer in the Hartford Police Department; andPytlik.ColbytestifiedthatinJune,2009,inthearea ofBondStreetinHartford,hehadanexchangewithtwo individuals, both of whom were carrying guns. Colby testified that he fled from the two individuals to his car, and, as he was driving away, they fired shots at him, hitting the car’s back windshield. Approximately one year later, when presented with a photographic array by the police, Colby identified the defendant as one of the shooters. When, at some point thereafter, Colby encountered the defendant in person, the defendant offered him ‘‘a couple grand if I just come plead the fifth,’’ and told him to ‘‘keep it in the streets.’’ After theconclusionofColby’stestimony,thecourtprovided a limiting instruction to the jury.7 Raimundi then testified that in June, 2009, he had locatedColbywhenfollowinguponacallthatamotorist had struck a pedestrian and attempted to evade responsibility. Upon locating Colby’s car, Raimundi noted that its rear windshield was shattered. Raimundi and his partner also recovered three bullet fragments and one 9mm Luger shell casing in the vicinity of Bond Street. Finally, Pytlik testified that the same gun had fired the shell casing recovered from the scene of the 2009
incident and the casings recovered in the present case. At the conclusion of Pytlik’s testimony, the state rested its case-in-chief, and the court gave the jury another limiting instruction.8 The defendant elected to testify at trial. On the witness stand, he admitted that he had fired the shots that killed Flores and wounded Forbes and Schroeter. He then claimed, for the first time, that he had acted in defense of his friends. He testified that he heard an unidentified individual on the bar’s stage say that he was going to get his gun from a car. In response to hearing that, he retrieved his own gun from Gonzalez’ car. The defendant testified that after he had retrieved hisgun,hesawmembersofthecrowdthathadgathered on the corner of Franklin Avenue and Brown Street arguing with his friends, who were standing in front of the bar’s Brown Street exit. He became nervous when he saw a man standing on the corner wearing a black jacket with red lettering pull a revolver from his pants. The defendant claimed that he saw that man aim his revolveratColonandBonilla.Asaresult,thedefendant testified, he fired at the man to protect his friends.9 Initially, he testified that his gun was an automatic, and its whole clip emptied at once, but, on cross-examination, he conceded that footage from the bank’s surveillance camera showed him firing some shots, pausing, and then firing more shots as he backed away. He testified that he hit the man aiming at Colon and Bonilla, whofelltothegroundandmusthavedroppedhisgun.10 He testified that he later disposed of his own gun by throwing it into the river. According to the defendant, he initially fabricated an alibibecausehefearedthatthepolicewouldnotbelieve that he had acted in defense of his friends. The defendant denied that Sullivan had mentioned self-defense, testifying that if Sullivan had done so, the defendant would have seized the opportunity to begin telling people that he had acted in defense of his friends. During the state’s rebuttal case, the state played for the jury a recording of Sullivan’s interview of the defendant, in which Sullivan told the defendant that ‘‘there’s a lot of waysthatpeopledieinashootingthatisnotnecessarily murder,’’ including when you shoot at someone else in order to protect yourself. More specifically, in the interview, Sullivan told the defendant that ‘‘[a]ll I know is what the people tell us, they put a gun in your hand and you’re shooting and a girl dies. Now in my eyes that’s murder, unless there’s an explanation. You know, if somebody else had a gun say, on the corner, and you were shooting at them to protect yourself, that’s not necessarily murder, you knowwhatI’msaying,there’salotofdifferentversions of events that influence what the charge would be. That’s why we give you an opportunity to explain it,
but that’s your choice.’’ In its final charge to the jury, the court gave another instruction as to the permissible use of evidence of the defendant’s prior misconduct.11 Thereafter, the jury rejected the defendant’s justification of defense of others and found the defendant guilty of all charges. The court subsequently sentenced the defendant to a total effective term of sixty-five years imprisonment. This appeal followed. Additional facts will be provided as necessary. On appeal, the defendant claims that ‘‘the trial court erred in admitting as substantive proof of intent, in a casewhereintentwasthesoledisputedissue,extrinsic misconduct evidence that fifteen months before the charged incident, the defendant shot at state’s witness Fred Colby using a gun that was a ballistic match to the weapon the defendant used in the charged crimes, and . . . in charging the jury that this misconduct was admitted to prove the intent elements of the charged crimes . . . .’’ The state counters that the court properly exercised its discretion in determining that the prior misconduct evidence was admissible as proof of intent. The state also argues that even if the admission of the evidence was an abuse of discretion, the court’s error was harmless because there was ample evidence both to prove intent and to disprove the defendant’s justification defense, and, therefore, the admission of the prior misconduct evidence did not substantially affect the verdict. We agree with the state that any error as to the admission or giving of limiting instructions concerning the evidence was harmless. ‘‘We begin our review of the trial court’s action by notingthat[a]sageneralrule,evidenceofpriormisconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. . . . Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . Evidence of prior misconduct may be admitted, however, when the evidence is offered for a purpose other than to prove the defendant’s bad character or criminal tendencies.Conn. CodeEvid. § 4-5(b). Exceptions to the general rule precluding the use of prior misconduct evidence have been recognized in cases in which the evidence is offered to prove, among other things, intent, identity, motive, malice or a common plan or scheme. . . . ‘‘In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect . . . . Because of the difficulties inherent in this balancing
process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done.’’ (Citations omitted; internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 659–61, 835 A.2d 895 (2003). ‘‘Whenanimproperevidentiaryrulingisnotconstitutionalinnature,thedefendantbearstheburdenofdemonstrating that the error was harmful. . . . As we have recently noted, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [O]ur determination that the defendant was harmed by the trialcourt’s[evidentiaryrulings]isguidedbythevarious factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . . . such as the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence] on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.’’ (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 641–42, 930 A.2d 628 (2007). The defendant advances several arguments in support of his claim that evidence of the 2009 shooting was inadmissible to prove that he intended to cause death or physical injury when he fired into the crowd gathered outside the bar in 2010. First, he argues that ‘‘firing a gun, even firing the same gun fifteen months earlier’’ was irrelevant to his mental state at the time of the charged crimes. Second, he contends that the probative value of the evidence was low because ‘‘the 2009 Bond Street incident and the charged 2010 offense[s] were unrelated in any way, other than through ballistics . . . .’’ Third, he argues that the prejudicial effect of the evidence was high because the prior misconduct and charged offenses were similar, putting pressure on jurors to infer that if he committed the earlier act, he had a predisposition to commit the latter. Finally, he argues that the prejudicial effect of the evidence was compounded because the evidence ‘‘showed . . . the defendant attacking another allegedlyunarmedperson,not defendinghimselforothers.’’ (Emphasis omitted.) After reviewing the trial record and the parties’ arguments on appeal, we conclude that even if we were to assume that the court abused its discretion by allowing the jury to consider evidence of the defendant’s prior misconduct as to the issue of intent, any error was harmless. In light of the admission of the evidence in question on an independent, unchallenged basis and the strength of the state’s case against the defendant, we can be ‘‘fair[ly] assur[ed] that the error did not
substantially affect the verdict.’’ (Internal quotation marksomitted.)Statev.Jacobson,supra,283Conn.641. As an initial matter, with respect to the admission of the prior misconduct evidence itself, we must note that the court admitted the evidence not only under the intent exception, but also on the basis that it demonstrated the defendant’s possession of the instrumentality of the charged crimes, which was relevant to establishing his identity as the shooter. The defendant has not challenged the propriety of the court’s admissionoftheevidenceonthisseparatebasis.Accordingly, eveniftheadmissionoftheevidencetoproveintentwas improper, there is no claim that the prior misconduct evidence was not properly before the jury on the issue of identity. See State v. Merriam, supra, 264 Conn. 667–68 (improper admission of prior misconduct evidence to prove identity was harmless error because ‘‘that evidence was properly before the jury, albeit under [the common plan or scheme] exception to the general rule against the admission of prior misconduct evidence’’). Because the defendant failed to challenge the court’s admission of this evidence as proof of his accesstotheinstrumentalityofthecrimeoritsinstruction permitting the jury to consider this evidence as it related to the defendant’s possession of the instrumentality of the crime, any improper admission of this evidence also to prove intent was harmless. The defendant also claims that the court committed harmfulerrorinitslimitinginstructionsandfinalcharge tothejurypermittingittoconsiderthepriormisconduct evidence as proof of intent. He argues that ‘‘because the basis of admissibility (intent) was the foundational error in this case, the court’s instruction was the problem,notthecure.’’Hefurtherarguesthatnoinstruction that permitted the jury to use the evidence as proof of intent would have been curative because ‘‘to use the [2009] misconduct to prove the 2010 intent . . . without resorting to character inferences, is clearly beyond the ability of anyone, let alone a juror faced with the court’s confused directive.’’ We disagree. Here, the defendant has not established that the trial court’s instructions permitting the jury to consider the prior misconduct evidence to establish his intent substantially affected the jury’s verdict. On the contrary, there was ample evidence, apart from the challenged prior misconduct evidence and the court’s accompanying instructions, to support the jury’s guilty verdict, both in the form of evidence that the defendant possessed the requisite intent to cause death or physical injury when he fired a series of shots at the crowd of people on the corner outside the bar and in the form of evidencetounderminethecredibilityofthedefendant’s justification of defense of others. ‘‘Intent is typically established by circumstantial evidence. . . . Such circumstantial evidence may include
inferences drawnfrom theconduct ofthe accused.The knowingandvolitionalconductofadefendantisprobative of his mental state insofar as he may be found to have intended the ordinary and natural consequences of his acts.’’ (Citation omitted.) State v. Crafts, 226 Conn. 237, 248, 627 A.2d 877 (1993). In this case, there was ample evidence from which the jury reasonably could have concluded that the defendant possessed the specific intent to cause death andphysicalinjury.12 Thedefendantadmittedinhistrial testimonythatheintentionallyfiredgunshotsatpeople. Therealsowasvideosurveillanceevidencethatshowed the defendant firing two separate series of gunshots into the crowd of people. The defendant’s admitted discharge of a handgun into the crowd assembled outside the bar and the video surveillance footage were evidence from which the jury could have concluded that he intended to kill or injure another person. See Statev.Otto,305Conn.51,68,43A.3d629(2012)(types of circumstantial evidence of intent to kill include type of instrument used and manner of use). In addition, shortly before shooting into the crowd, the defendant engaged in certain preparatory acts, namely, he left the bar, went to Gonzalez’ car, retrieved his gun, and took up a position at the bank opposite the bar. The jury reasonably could have inferred from these preparatory acts, as well as from the shooting itself, that the defendant intended to cause death or physical injury. See State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993) (defendant carrying deadly weapon prior to homicide may be evidence that defendant intended to cause victim’s death); State v. White, 127Conn.App.846,854,17A.3d72(same),cert.denied, 302 Conn. 911, 27 A.3d 371 (2011). A number of the defendant’s actions following the shooting reasonably supported an inference of consciousness of guilt, which, ‘‘in combination with the defendant’s use of a deadly weapon provided sufficient evidenceforthejurytofindthatthedefendantintended to cause the victim’s death.’’13 State v. Moye, 119 Conn. App. 143, 150, 986 A.2d 1134, cert. denied, 297 Conn. 907, 995 A.2d 638 (2010); State v. Otto, supra, 305 Conn. 73 (‘‘consciousness of guilt evidence [is] part of the evidence from which a jury may draw an inference of an intent to kill’’ [internal quotation marks omitted]). In particular, the defendant and his friends fled from the scene immediately after the shooting. See State v. Booth, 250 Conn. 611, 653, 737 A.2d 404 (1999) (‘‘when a person flees the crime scene . . . it is reasonable to infer that that person had the intent to murder’’), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120S.Ct.1568,146L.Ed.2d471(2000).Additionally,the defendant admitted that he adopted Colon’s fabricated alibi. From the defendant and Colon’s efforts to place the defendant elsewhere at the time of the crimes, the
jury reasonably could have inferred a consciousness of guilt,andfromthere,therequisiteintenttocausedeath or physical injury. State v. Reid, 193 Conn. 646, 656, 480 A.2d 463 (1984); State v. Pelletier, 85 Conn. App. 71, 81, 856 A.2d 435, cert. denied, 272 Conn. 911, 863 A.2d 703 (2004). Finally, the defendant disposed of the gun in the river and attempted to persuade Rojas to corroborate the alibi that he and Colon had fabricated. See State v. White, supra, 127 Conn. App. 854–55 (disposal of murder weapon and attempt to influence witnesstestimonyarecircumstantialevidenceofintent).In sum,therewasampleevidence,apartfromtheevidence linking the defendant to the 2009 shooting, from which the jury could have concluded that he possessed the intent required for conviction of the charged crimes. There also wasample evidence on thebasis of which thejuryreasonablycouldhave concludedthatthestate disproved beyond a reasonable doubt the defendant’s asserted justification that he had fired a weapon into theassembledcrowdtodefendhisfriends.14 Thedefendant’sevidenceinsupportofhisdefensewasweak.His testimony was the only evidence—other than Colon’s testimony,givenafterthefalsityofthedefendant’salibi hadbeenexposed,thatthedefendanttoldhersomeone was aiming a gun at her and Bonilla—supporting his claim that he was defending his friends. He was the only individual among many witnesses present at the scene who testified to seeing a man on the corner display a gun. Although he testified both that he had seen a man aim a gun at his friends and that the person he shot had to have dropped the gun when he was hit by a bullet, no firearm was found at the scene. See State v. Saunders, 267 Conn. 363, 374–75, 838 A.2d 186 (jury could have discredited defendant’s assertion that he feared victim would shoot him where victim never displayedorbrandishedweaponandnoweaponrecovered at scene), cert. denied, 541 U.S. 1036, 124 S. Ct. 2113, 158 L. Ed. 2d 722 (2004). In contrast to the defendant’s evidence, the state’s evidence to disprove the defense of others theory was strong. The state presented evidence that undermined the credibility of the defendant’s assertion that he believed a man on the corner was about to fire a gun at his friends,necessitating his use ofdeadly force. The defendant’s calm demeanor both when he left the bar and when he took up a position in front of the bank andbeganfiringintotheassembledcrowd,asdisplayed in the various surveillance videos that the state adduced, belied his claim that he feared someone was abouttofireathisfriends.Seeid.,375(‘‘thedefendant’s calm demeanor when he fired the shots that killed the victim suggests that he was not afraid that the victim was reaching for a gun’’). The state also presented evidence on the basis of which the jury could have concluded that the defen
dant’s belief in the amount of force needed to repel the alleged attack on his friends was unreasonable. See footnote 14 of this opinion. As previously noted in this opinion,thebank’svideosurveillancefootageindicated that the defendant fired an initial volley of shots, paused, and fired a second series of shots. When presented with the footage, the defendant admitted on cross-examination that he had fired the shots in two distinct bursts. Furthermore, although the defendant also testified that he ran off as soon as he saw the person with the gun drop to the ground, Flores was the only shooting victim to drop to the ground; Forbes and Schroeter both testified that they were running from the gunfire when they realized that they each had been shot.Together,‘‘[t]hisevidencesupportedafindingthat the defendant safely could have stopped firing, but elected not to do so, even though the victim no longer posed a threat . . . . Consequently, the jury reasonablycouldhavefoundthatthedefendant’sactionswere excessive and beyond those reasonably necessary to repel any attack’’ against his friends. State v. Saunders, supra, 267 Conn. 376. The credibility of the defendant’s asserted justification defense also was undermined by the combination of his admission that he previously had fabricated an alibi and evidence that he began claiming defense of othersonlyafterthatjustificationwassuggestedtohim. As previously discussed, the defendant and Colon both admitted that they had fabricated the defendant’s alibi. In its rebuttal case, the state presented evidence from which the jury reasonably could have inferred that the defendant decided to begin claiming that he had acted in defense of his friends based on the scenario that Sullivan had suggested when he asked if the defendant would testify before the grand jury. The defendant did not claim that he acted to defend his friends until he testified at his trial. Although he conceded that if Sullivandidsaysomethingaboutself-defense,thedefendant would have taken the opportunity and started telling people that he was defending his friends, he asserted that Sullivan had not mentioned self-defense. Playback of the recording of the meeting between Sullivan and the defendant belied this assertion. Indeed, Sullivan told the defendant that ‘‘[a]ll I know is what the people tell us, they put a gun in your hand and you’re shooting and a girl dies. Now in my eyes that’smurder,unlessthere’sanexplanation.Youknow, if somebody else had a gun say, on the corner, and you were shooting at them to protect yourself, that’s not necessarily murder, you know what I’m saying, there’s a lot of different versions of events that influence what the charge would be. That’s why we give you an opportunity to explain it, but that’s your choice.’’ Thereafter, for the first time, the defendant, on the witness stand, offeredajustificationoftheshootingthathewedclosely to the scenario that Sullivan had suggested. In sum,
therewasampleevidence,apartfromtheevidencelinking the defendant to the 2009 shooting, from which the jurycouldhaveconcluded,aswasimplicitinitsverdict, thatthestatehaddisprovedthedefendant’sjustification of defense of others.
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