State v. Cruz

319 A.3d 804

227 Conn.App. 75

STATE of Connecticut

v.Anthony CRUZ

(AC 45685)

Appellate Court of Connecticut.

Argued March 6, 2024

Officially Released July 30, 2024

Adele V. Patterson, for the appellant (defendant).

James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Sharmese L. Hodge, state’s attorney, and Emily Dewey Trudeau, senior assistant state’s attorney, for the appellee (state).

Bright, C. J., and Moll and Westbrook, Js.

MOLL, J.

₇₇The defendant, Anthony Cruz, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), criminal possession of a firearm in violation of General Statutes (Rev. to 2019) § 53a-217, and carrying a pistol without a permit in violation of General Statutes (Rev. to 2019) § 29-35 (a). On appeal, the defendant claims that the state made certain purported misrepresentations in moving to join his case with a codefendant’s case that resulted in an improper joinder of the cases and violated his constitutional rights to confrontation and to a fair trial pursuant to the sixth and fourteenth amendments to the United States constitution. We disagree and, accordingly, affirm the judgment of conviction.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of the defendant’s claim. Sometime prior to September 10, 2019, an incident occurred between the defendant and Marcelo Campos. Specifically, Campos witnessed the defendant attempting to get into Campos’ car because the defendant believed that Campos had stolen liquor from him. Campos called the police to report the defendant, but the defendant was not arrested in connection with this incident.

₇₈During the early morning hours of September 10, 2019, Campos was at an apartment located at 433 Zion Street in Hartford (apartment), which was situated above a bodega owned by the defendant’s family. Campos, who was living out of his car at the time, previously had been permitted by the owner of the building to stay in the apartment; however, Campos did not have permission to be at the apartment that morning.

While on the back porch of the apartment, Campos observed a group of individuals outside, one of whom was carrying a gun. Campos went into the apartment, looked out of a window, and saw the group in front of the building, at which point he recognized the defendant as the individual holding the gun. Thereafter, the group gained entry to the building, ascended the stairs, and entered the apartment. At some point, the defendant told Campos, "you’re mine, motherfucker." Two of the other individuals in the group, including Jamal Johnson, approached Campos and started swinging at him. Campos, who was armed with two knives, stabbed Johnson. During this tussle, the defendant shot Campos. Following the gunshot, Johnson and the other individual who had been attacking Campos dispersed, with one of them stating, "not here, Ant." The defendant then shot Campos a second time and fled. Campos managed to call 911 and was taken to Hartford Hospital (hospital) to be treated for his injuries, which resulted, inter alia, in the removal of his spleen and a portion of his small intestine.

That same day, Johnson arrived at the hospital to receive treatment for his stab wounds. While at the hospital, Johnson told a police officer who had been dispatched to investigate his stabbing that he had been stabbed in the vicinity of 465 Zion Street in Hartford, which was approximately four or five buildings north ₇₉of the apartment, by an unidentified male who had approached him asking for money.

On September 30, 2019, two members of the Hartford Police Department, including Detective Philip Fuschino, interviewed Johnson (first interview). During the first interview, which was recorded, Johnson initially maintained his narrative that an unidentified male stabbed him in the area of 465 Zion Street. Johnson’s account changed as the first interview progressed, with Johnson later stating that (1) an unknown assailant had stabbed him downstairs from the apartment (i.e., 433 Zion Street), (2) he chased the assailant upstairs into the apartment, (3) he fought with the assailant, and (4) he exited the apartment after hearing a gunshot. At no point during the first interview did Johnson name the defendant or identify the shooter.

On October 8, 2019, the defendant was arrested in connection with Campos’ shooting. Subsequently, on January 3, 2020, Johnson was arrested vis-à-vis Campos’ shooting. On the day of his arrest, Johnson was interviewed for a second time by Fuschino and another detective (second interview). During the second interview, which was also recorded, Johnson stated that (1) he knew the defendant by the nickname "Ant," (2) he and the defendant entered the apartment on September 10, 2019, "to fuck up" Campos, and (3) before they had entered the apartment, the defendant was "talking about all the problems he had with Campos …." Johnson never indicated during the second interview that he saw the defendant with a gun or witnessed the defendant shoot at Campos. Subsequently, Johnson picked the defendant out of a photographic array prepared by the police.

In its operative long form information against the defendant, dated April 11, 2022, the state charged the defendant with (1) assault in the first degree in violation ₈₀of § 53a-59 (a) (5), (2) conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (5), (3) criminal possession of a firearm in violation of General Statutes (Rev. to 2019) § 53a-217, (4) criminal use of a firearm in violation of General Statutes § 53a-216, and (5) carrying a pistol without a permit in violation of General Statutes (Rev. to 2019) § 29-35 (a). In its operative information against Johnson, dated April 11, 2022, the state charged Johnson with conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (5).¹

On March 1, 2022, pursuant to Practice Book § 41-19,² the state filed a motion for joinder of the defendant’s case with Johnson’s case for trial. The state asserted in relevant part that (1) the defendant and Johnson were "charged with conspiring to assault the same victim, for the same motive, at the same time and place," (2) "[a]ll evidence against one defendant, to include witness testimony, would be used in an identical manner against the other," and (3) "the proffered defenses raised by [the defendant’s trial counsel (defense counsel) and Johnson’s trial counsel (Johnson’s counsel)] are not in conflict, as [the defendant and Johnson] each alleged to have not been present for the shooting, and ₈₁to have no idea as to the identity of the shooter." On March 3, 2022, the trial court, Gold, J., held a hearing on the motion for joinder. The court summarized that the "motion sets forth the fact that the evidence is the same, in many respects, as to both [the defendant and Johnson]. Both [the defendant and Johnson] have been charged in connection with the same incident. The state represents that the defenses that will be raised by … Johnson and [the defendant] are not, in any way, antagonistic. Nor will they require the jury to reject one in order to find the other." Defense counsel and Johnson’s counsel did not object to the motion. The court further inquired whether there was any concern about the possibility that the defendant’s and Johnson’s respective defenses would be mutually antagonistic. Defense counsel and Johnson’s counsel responded that they did not discern any risk of presenting antagonistic defenses. The court, without objection, granted the motion for joinder.³

On March 24, 2022, the court held a hearing to address outstanding pretrial motions. The state requested that the court address any preliminary objections to exhibits set forth in a proposed exhibit list that the state had circulated to the court and to opposing counsel. In response, defense counsel stated: "I can make it easy for you. I don’t have objections to anything." The court then inquired whether the state intended to introduce "Johnson’s statement …. " The state represented that it planned to offer recordings of the first and second interviews as consciousness of guilt evidence, not for ₈₂the truth of the matter asserted, against Johnson only. The state further stated that a limiting instruction preceding the playbacks of the first and second interviews "would be appropriate just because of any potential Crawford⁴ issues as they relate to [the defendant]." (Footnote added.) With regard to the second interview, the state represented that Johnson "maintained] that [the defendant] did not have a weapon and was not the shooter and that [the shooter] was a third party unknown to both of them." In light of that representation, defense counsel did not object to the admission of the second interview as proffered by the state. With the consent of defense counsel and Johnson’s counsel, the court indicated that it would review the first and second interviews in advance of trial.

The joined cases were tried to a jury on April 7, 8 and 11, 2022. Prior to the start of evidence on April 7, 2022, and outside of the jury’s presence, the following colloquy occurred between the court and defense counsel regarding the second interview:

"The Court: … Johnson in [the second interview] could be seen … to some degree [to] implicate [the defendant] in the crimes by putting [the defendant] at the scene of the crime at the time of the crime. I did not hear anything specific that … Johnson said that [the defendant] was involved in the shooting or that he possessed the handgun. I think, in fact, [Johnson] said he did not see [the defendant] with a handgun. But [Johnson] does say [the defendant] was … at the scene of the crime at the time of the shooting. So, to the extent that will assist the state, one might see that ₈₃as somewhat...