State v. Diaz

311 A.3d 714

348 Conn. 750

STATE of Connecticut

v.Gonzalo DIAZ

(SC 20720)

Supreme Court of Connecticut.

Argued November 14, 2023

Officially Released April 9, 2024

Shanna P. Hugle, deputy assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Maureen Platt, state’s attorney, and Don E. Therkildsen and Amy Sedensky, supervisory assistant state’s attorneys, for the appellee (state).

Robinson, C. J., and McDonald, D’Auria, Mullins, Ecker, Alexander and Dannehy, Js.

ECKER, J.

₇₅₄In this direct appeal,¹ the defendant, Gonzalo Diaz, raises two unpreserved claims challenging his conviction of felony murder, burglary in the first degree, conspiracy to commit burglary in the first degree, attempt to commit robbery in the first degree, and criminal possession of a firearm. First, he claims that the trial court committed plain error when it instructed the jury that it may consider his interest in the outcome of its verdict when assessing the credibility of his trial testimony, contrary to our statement in State v. Medrano, 308 Conn. 604, 631, 65 A.3d 503 (2013), that such an instruction should not be given. Second, he claims that ₇₅₅the prosecutor made improper remarks during cross-examination and rebuttal argument, in violation of his due process right to a fair trial. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. The victim, Denise Rogers-Rollins, and her son sold drugs out of their home on Wall Street in Waterbury. During the early morning hours of December 7, 2019, the victim was shot and killed in her home. The police investigation into the victim’s death led to the questioning of Shavonnah Draper, whose car was spotted parked nearby at the time of the shooting. Draper initially lied to the police regarding her involvement in the crimes but later admitted that she drove her boyfriend, Howard Jefferson, and his friend, E, from Bridgeport to the victim’s residence on Wall Street in Waterbury to buy drugs on the night of the shooting. Pursuant to Jefferson’s instructions, Draper did not park in front of the victim’s home but, instead, parked nearby on Shelley Street. When Draper, Jefferson, and E exited the vehicle, Jefferson informed Draper that they "were going to rob the place, and [Draper was going to be] the one to get the door open." Draper participated in the planned robbery because she was afraid of Jefferson, who regularly abused her physically.

Draper and E approached the victim’s residence while Jefferson waited across the street. Draper knocked on the door, and the victim asked who was there. Draper answered: "[I]t’s me." The victim asked Draper if she had called beforehand, and Draper responded that there had been "no answer." When the victim opened the door, E pulled out "a dark colored gun" and "bum-rushe[d] her" inside. Scared, Draper ran back to the car, where she met Jefferson. Draper heard the victim screaming and the sound of a gunshot as she ran to the car. Draper entered the driver’s seat of her vehicle, and Jefferson got into the passenger’s seat. Draper started the car ₇₅₆and turned around to proceed down Shelley Street away from Wall Street. As she was driving away, Draper saw E walking down Shelley Street. Jefferson instructed Draper to pick up E, and Draper complied. After E entered the car, Jefferson asked E, "[w]hat the fuck happened?" E replied, "I don’t know. I don’t know. I hit her, and [the gun] went off." Draper drove back to Bridgeport and dropped E off near State Street and Lee Avenue.

The defendant was interviewed by the police twice, once on December 20, 2019, and again on January 7, 2020. During his first interview, the defendant identified himself as E after viewing video surveillance footage depicting Jefferson and E near Wall Street on the night of the victim’s death. The defendant subsequently was arrested and charged in a six count substitute information with (1) manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a), (2) felony murder in violation of General Statutes § 53a-54c, (3) burglary in the first degree in violation of General Statutes §§ 53a-8 and 53a-101 (a) (3), (4) conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101 (a) (3), (5) attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2), and (6) criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant elected a jury trial on the first five counts and a bench trial on the sixth count.

Testifying at trial pursuant to a cooperation agreement, Draper provided a version of events consistent with the facts set forth in the preceding paragraphs. She acknowledged that she had been unable to identify the defendant as E from a photographic array conducted shortly after the incident, and she never identified the defendant as E at trial.

₇₅₇The defendant testified in his own defense. He admitted that, on the night of the shooting, he traveled from Bridgeport to Waterbury with Jefferson and Draper to buy drugs, but he denied any knowledge of, or involvement in, the attempted robbery, burglary, and killing of the victim. According to the defendant, Draper parked her car on Shelley Street, and he, Jefferson, and Draper exited the vehicle. Jefferson informed the defendant that "he had to take care of something. He [was] going to this trap house, [where] he [knew] this lady that lives there that use[s] drugs … and her son sell[s] drugs."² The defendant stayed with the car and smoked a cigarette while Jefferson and Draper went to the trap house on Wall Street.

The defendant testified that, after waiting by the car for approximately ten to fifteen minutes, he heard a gunshot. He walked to the corner of Wall and Shelley Streets and looked around but did not see anything. He then walked back to the car, only to discover that it was locked. The defendant returned to the corner of Wall and Shelley Streets, where he saw Draper walking down the street with Jefferson following fifteen to twenty feet behind her. Draper reached the car and got into the driver’s seat, and the defendant sat in the back. Jefferson waved Draper along and kept walking down Shelley Street in the opposite direction. Draper turned the car around and drove down Shelley Street, where she picked up Jefferson. Jefferson entered the front passenger seat of the vehicle and handed Draper "a small, black," semiautomatic gun, which Draper placed in the center console.

According to the defendant’s testimony, he "could see a cop car coming" and heard sirens as Draper was driving away. Although it was "obvious something [had] happened," the defendant did not ask Draper and Jefferson₇₅₈ what had occurred because he "didn’t want to be involved." Draper drove back to Bridgeport, where she dropped the defendant off near State Street and Lee Avenue.

The defendant acknowledged that he had changed his cell phone number approximately one week after the death of the victim. He said that he did so because Draper had been arrested, Jefferson had stopped communicating with him, and he "felt like [he] was being set up." The defendant therefore "cut [his] ties with [Jefferson]."

The defendant also admitted that he had lied to the police multiple times during the two interviews regarding the incident. The defendant initially told the police that, on the night of the victim’s death, he had traveled from Bridgeport to Waterbury with "one of [his] boys" and denied going to the Wall Street area. Additionally, the defendant initially informed the police that, although he had met up with Jefferson in Waterbury that night, it was just the two of them, and no one else had joined them. When the police advised the defendant that they had video surveillance footage of him in a ear with Jefferson and Draper, the defendant admitted that he had gone back to Bridgeport with Jefferson and Draper but still denied traveling to Waterbury with them. The defendant also originally denied going to the Wall Street area with Jefferson and Draper, informing the police that the couple had left him "for [one-half] hour to forty-five minutes when they went somewhere." Later, the defendant admitted to the police that he had traveled to Waterbury with Jefferson and Draper and went with them to the Wall Street area but denied ever exiting the car, adamantly stating that he was "positive" that he "stayed in the car the whole time …." When informed by the police that there were eyewitnesses who saw three people exiting Draper’s car on Shelley ₇₅₉Street,³ the defendant changed his story and stated that he got out of the ear on Shelley Street, but only to smoke a cigarette.

On the basis of the foregoing evidence, the jury found the defendant guilty of felony murder, manslaughter in the first degree with a firearm, burglary in the first degree, conspiracy to commit burglary in the first degree, and attempt to commit robbery in the first degree, while the trial court found him guilty of criminal possession of a firearm. At sentencing, the trial court vacated the defendant’s manslaughter conviction but otherwise rendered judgment in accordance with the jury’s verdict and the court’s finding.⁴ The trial court sentenced the defendant to a total effective sentence of forty-five years of imprisonment,⁵ and this direct appeal followed.

I

The defendant claims that the trial court committed plain error by instructing the jury that, in assessing the ₇₆₀credibility of his trial testimony, it "necessarily [could consider] his interest in the verdict that [it] will [return]." The state concedes that this instruction plainly was erroneous in light of State v. Medrano, supra, 308 Conn. 604, 65 A.3d 503, in which we "exercise[d] … our supervisory authority over the administration of justice … [to] direct our trial courts in the...