State v. Bonds

172 Conn.App. 108

158 A.3d 826

STATE of Connecticut

v.Darryl BONDS

AC 38309

Appellate Court of Connecticut.

Argued December 13, 2016

Officially released April 4, 2017

Stephan E. Seeger, with whom, on the brief, was Igor G. Kuperman, for the appellant (defendant).

Ronald G. Weller, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, former state's attorney, and Joseph C. Valdes, senior assistant state's attorney, for the appellee (state).

Alvord, Prescott and Mihalakos, Js.

PRESCOTT, J.

The defendant, Darryl Bonds, appeals from the judgment of conviction, rendered after a jury trial, of one count of felony murder in violation of General Statutes § 53a–54c,¹ one count of robbery in the first degree in violation of General Statutes § 53a–134 (a) (2), and one count of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a–48 (a) and 53a–135. On appeal, the defendant claims that the trial court improperly (1) admitted two separate out-of-court statements under our hearsay exception for statements against penal interest, (2) admitted an out-of-court statement made by the defendant that was not properly authenticated, and (3) denied the defendant's request to instruct the jury on an affirmative defense to felony murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 28, 2009, approximately one week before the victim, Denny "Pun" Alcantara, was robbed and shot, Tyrone Tarver told Shari Johnson, a childhood friend, that "he was going to set [Pun] up to get robbed because he thought that [Pun] was soft." Tarver then stated that "he was going to call [Pun] up and tell him that he wanted, like, ten bags of weed. And at that point, that's when [Tarver] was going to set [Pun] up ...." In response to this plan, Johnson expressed her disappointment in Tarver and his behavior, and the two had a "blow-out argument."

On November 4, 2009, at approximately 4 p.m., the victim spoke on the telephone with his friend, Richard Patterson, to confirm that they would be watching the World Series together later that evening at the apartment of another friend, Anthony LaCrete, at 62 Stillwater Avenue in Stamford. The victim also told Patterson that he was going to meet with Tarver later that evening outside LaCrete's house, the purpose of which was later revealed to be to sell marijuana to Tarver.

On the same day, at about 5:20 p.m., the defendant called his cousin, Yvannia Collazo, and asked her to drive him and some friends to Stillwater Avenue to buy some "weed." She agreed, and when she went to pick up the defendant, he entered the car with his two friends, Tarver and Joshua McNeil. She then dropped the three men off in the vicinity of Stillwater Avenue, parked her car in a local parking lot, and went into a nearby salon to use the restroom.

At about 5:40 p.m., Tarver called the victim. Shortly thereafter, the victim called LaCrete, who was holding the victim's drugs in his Stillwater Avenue apartment, and asked for his "pack," i.e., his bundle of marijuana. At that point, LaCrete walked downstairs to the bottom of the stairwell at the back of his house, delivered the drugs to the victim, and went back upstairs. The victim then went outside to make the sale to Tarver.

At about this time, Patterson was walking along Stillwater Avenue and saw the victim, who was wearing a black leather jacket and a thick gold chain, sitting alone on the porch at 62 Stillwater Avenue. Patterson told the victim that he was meeting someone and would be back soon to watch the game, and continued walking down the street. As he was cutting through a parking lot, Patterson saw three men—Tarver, the defendant, and an individual later identified as McNeil—and informed them that "Pun" was waiting for them around the corner, to which Tarver and the defendant replied, "okay."

At about 6 p.m., Gustavo Lopez was working at a travel agency on Stillwater Avenue when he observed two black males wearing hoodies in the agency's parking lot. The men were soon joined by a third male, and all three eventually started walking in the direction of 62 Stillwater Avenue. Within minutes of when Lopez saw the men leave the parking lot and when Patterson left the defendant and Tarver, the victim was shot twice in the stomach.

LaCrete heard the two gunshots from where he was inside the house, followed by the victim repeatedly calling out, "Tony," in distress. This prompted LaCrete to run downstairs and open the door, at which point the victim stumbled in, bleeding. LaCrete asked the victim who had shot him, and the victim replied, "nigga shot me." An ambulance and the police arrived on the scene within five minutes of the shooting, and the victim was observed to be missing his black leather jacket, gold chain, cell phone, money, and marijuana. The victim ultimately died of a gunshot wound to the abdomen.

Meanwhile, after walking out of the salon and immediately hearing gunshots, Collazo got back into her car and instantly observed McNeil "at [her] door side." Within seconds, the defendant and Tarver also ran back to the car and got in, with the defendant sitting in the front and Tarver sitting in the back with McNeil. Acting nervous and jittery, the defendant directed Collazo to "hurry up and leave." While driving away, Collazo noticed Tarver wearing a black leather jacket that he had not been wearing previously. She also heard Tarver say that he had the black leather jacket, gold chain, and money, and the defendant say that he had the "weed." Thereafter, Tarver and the defendant began arguing with each other about "who gets what" from the items. At some point, Collazo dropped off McNeil at a local Stamford bodega; picked up her brother, Elvis Batista; picked up her son from an after-school program in Stamford; and proceeded to drive everyone back to her and Batista's apartment in Bridgeport.

During the drive, Tarver told Batista, "We just robbed Pun." Also during the drive, near a Norwalk exit on Interstate 95, the defendant threw the victim's cell phone out of the car window. Upon arriving back home in Bridgeport at about 7 p.m., Collazo turned on the news on television and saw that a shooting had occurred on Stillwater Avenue in Stamford, which gave her a "bad feeling." The next morning, she woke up in her apartment and smelled the scent of marijuana in the air, saw the black leather jacket Tarver had been wearing in the car the previous night, and noticed that the defendant and Tarver were still in the apartment. On December 13, 2010, the defendant was arrested pursuant to a warrant.

Prior to trial, the state filed a second amended information dated May 7, 2014, charging the defendant with one count of felony murder in violation of § 53a–54c, one count of robbery in the first degree in violation of § 53a–134 (a) (2), and one count of conspiracy to commit robbery in the second degree in violation of §§ 53a–48 a) and 53a–135. Following a jury trial, the defendant was found guilty of all counts. He was sentenced to a total effective term of fifty-five years imprisonment followed by five years of special parole. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly admitted two hearsay statements made by Tarver.² The first, he made to Johnson approximately one week before the robbery and shooting of the victim. The second, he made to Batista immediately after the robbery and shooting of the victim. The defendant specifically argues, inter alia, that neither statement should have been admitted under § 8–6 (4) of the Connecticut Code of Evidence, entitled "Statement against penal interest," because the first statement to Johnson would not have subjected Tarver to any criminal liability, and the second statement to Batista is not sufficiently trustworthy because the two parties did not share a preexisting relationship with each other.

In response, the state first argues that the hearsay statement to Johnson was properly admitted as a statement against penal interest because it is inculpatory pursuant to the holding of State v. Bryant , 202 Conn. 676, 689–702, 523 A.2d 451 (1987).³ The state next argues that the hearsay statement to Batista was properly admitted as a statement against penal interest⁴ because the evidence suggested more than a mere acquaintanceship between the two parties, and the factors that inform the court's determination regarding the statement's trustworthiness weigh in favor of its reliability. We agree with the state that both statements were properly admitted as statements against penal interest.

Before addressing the merits of these claims, we set forth the applicable standard of review and the law governing the hearsay exception for statements against penal interest. "To the extent [that] a trial court's admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.... We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion." (Internal quotation marks omitted.) State v. Miguel C. , 305 Conn. 562, 571–72, 46 A.3d 126 (2012).

"As a general matter, hearsay statements may not be admitted into evidence unless they fall within a recognized exception to the hearsay rule." State v. Smith , 289 Conn. 598, 618, 960 A.2d 993 (2008). Section 8–6 of the Connecticut Code of Evidence provides in relevant part that "[t]he following are not excluded by the hearsay rule if the declarant is unavailable as a witness ... (4) Statement against penal interest. A trustworthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to...