State v. Marrero

198 Conn.App. 90

234 A.3d 1

STATE of Connecticut

v.Nector MARRERO

AC 41022

Appellate Court of Connecticut.

Argued September 12, 2019

Officially released June 16, 2020

Matthew C. Eagen, assigned counsel, with whom was Emily L. Graner Sexton, assigned counsel, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., former state's attorney, and Joseph C. Valdes, senior assistant state's attorney, for the appellee (state).

Prescott, Elgo and Sheldon, Js.

SHELDON, J.

The defendant, Nector Marrero, appeals from the judgment of conviction rendered against him after a jury trial on charges of home invasion in violation of General Statutes § 53a-100aa (a) (1), burglary in the first degree in violation of General Statutes § 53a-101 (a) (3), and assault in the second degree in violation of General Statutes § 53a-60 (a) (1). On appeal, the defendant claims that he is entitled to the reversal of his conviction and a new trial on all charges because (1) improprieties by the prosecutor in different parts of his trial violated his due process right to a fair trial; (2) the trial court erred in not requiring the authentication of his voice on the audio recordings of certain allegedly self-incriminating phone conversations he was claimed to have had with his incarcerated girlfriend, Amber Greco, before admitting such recordings into evidence against him; and (3) the court improperly charged the jury on consciousness of guilt. We reject each of these claims and therefore affirm the judgment of conviction.

The following facts, which the jury reasonably could have found, are relevant to our resolution of this appeal. On December 27, 2015, at approximately 4:45 a.m., the defendant kicked in the door of his ex-girlfriend's¹ home and physically assaulted her, causing her to sustain multiple injuries, including fractured orbital bones, a fractured tooth, and a two centimeter laceration under her left eye. After the assault, the victim fled to a neighbor's home, where she called the police to assist her. When officers from the Norwalk Police Department responded to the neighbor's home, they found the bloodied, injured victim in a hysterical state, crying and breathing heavily.

In the victim's initial report of the incident to the responding officers, as recorded on their body cameras, she claimed that the defendant, whom she described to the officers as her ex-boyfriend, had broken into her home and beaten her up. She gave the officers the defendant's cell phone number. As she did so, however, she pleaded with the officers not to tell the defendant that she had called them. Thereafter, the victim was taken first to a hospital, where she was treated for her injuries, and then, the next day, after being released from the hospital, to the police station, where she was interviewed about the incident and gave a signed, written statement again naming the defendant as her attacker. The victim concluded her statement by stating that she was afraid of the defendant and wanted a protective order to be issued against him.

Shortly after the police interviewed the victim, they began to search the surrounding area for the defendant. When at first they could not find him, they expanded their search to include places he was known to frequent, including the homes of his friends and family members. As their search for the defendant continued, the police received a tip that he had been in contact with his current girlfriend, Greco, who was then incarcerated at the York Correctional Institution (York) in Niantic. Following up on that tip, the police obtained and examined Greco's phone records at York, where they discovered that she had exchanged several phone calls with someone using a phone with the same phone number for the defendant that the victim had given to the police.² Officers thereupon obtained copies of recordings from the Department of Correction (department) of Greco's phone calls to and from that phone number while she was at York.

Two phone calls were of particular interest to the officers—one made on December 28, 2015, the day after the victim reported the incident, and the other made about one month later, on January 30, 2016. In the first of those phone calls, which was made less than thirty-six hours after the victim reported the incident, a male caller whom Greco called "N" admitted to Greco, whom the caller called "babe" or "baby," that he had "fucked up" by doing "some dumb shit ...." The caller explained that he got drunk at "Little Joe's house" because "[his] bitch" had stolen his keys. He left Joe's house and went to "[his] bitch[’s]" house, where he "kicked in the door and fucking just started fighting."³

The caller further told Greco that, although he had not yet been arrested, the police were probably looking for him, and he probably would be going to jail soon. In the second recorded phone call of special interest to the police, the same male caller told Greco that he was "on the run" because the police had gone to his mother's house to ask about Greco's "stolen car."⁴ After the caller and Greco discussed how to get rid of her car so they could raise money for her bail, the caller stated that he was going to change his phone number, which, shortly thereafter, the defendant did.

On February 18, 2016, the police finally located the defendant and arrested him in connection with the incident at issue on charges of home invasion, burglary in the first degree, and assault in the second degree. The defendant pleaded not guilty to those charges and elected a trial by jury.

The defendant's jury trial took place from June 27 through 29, 2017. At trial, the defendant presented an alibi defense, in support of which he called his friend, Joseph "Little Joe" Ferraro, who testified that the defendant had been with him at his home on the evening of the alleged assault. The jury found the defendant guilty on all charges. On August 18, 2017, the court sentenced the defendant to a total effective sentence of fifteen years of incarceration, ten years of which were mandatory, followed by ten years of special parole. This appeal followed.

I

The defendant first claims that the prosecutor committed improprieties on several occasions during trial in violation of his due process right to a fair trial. Specifically, the defendant claims that the prosecutor committed improprieties by (1) using excessive leading questions in his direct examination of the victim, (2) refreshing the recollection of a witness with a document different than the one he had told the court, defense counsel, and the jury he was using for that purpose, and (3) arguing in closing argument to the jury, without supporting evidence, that the victim had been threatened or otherwise influenced by the defendant to change her account of the incident by denying her initial claim that the defendant had assaulted her and insisting, to the contrary, that she had injured herself on the date of the reported assault by falling down stairs in her home. We reject each of these claims.

"[W]hen a defendant raises a claim of prosecutorial impropriety, we first must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial." (Internal quotation marks omitted.) State v. Weatherspoon , 332 Conn. 531, 555–56, 212 A.3d 208 (2019). We first examine each claim separately to determine if any impropriety in fact occurred.

A

The initial focus of the defendant's claim of prosecutorial impropriety is the prosecutor's questioning of the victim on direct examination. In that examination, the defendant claims, for the first time on appeal, that the prosecutor used excessive leading questions to make prejudicial statements of fact before the jury to induce the jury to rely upon such statements as a basis for finding him guilty. He claims, in particular, that the prosecutor used this improper questioning technique to misinform the jury that, despite the victim's testimony to the contrary, she previously had (1) identified the defendant as the male caller who had made self-incriminating statements to Greco, allegedly about this incident, in recorded phone conversations between them while Greco was incarcerated, and (2) reported to the police that the defendant had threatened her over the phone to induce her to withdraw her allegations against him. We conclude that the defendant has failed to establish any impropriety in the prosecutor's use of leading questions on direct examination of the victim.

Our Supreme Court in State v. Salamon , 287 Conn. 509, 559, 949 A.2d 1092 (2008), considered a claim of prosecutorial impropriety based upon a prosecutor's allegedly excessive use of leading questions in conducting direct examinations of the state's witnesses at trial. In Salamon , although the court ultimately rejected the defendant's claim of prosecutorial impropriety, it explained the rationale for basing such a claim on the excessive use of leading questions on direct examination of the state's witnesses and identified the essential facts that a defendant must prove to prevail on such a claim. As a general rule, the court noted, the use of leading questions on direct examination is prohibited. Id., citing Conn. Code Evid. § 6-8 (b).⁵ The court further noted, however, that the general rule is subject to several exceptions, under which the trial court may, in its discretion, allow the use of leading questions on direct examination. Such exceptions include using leading questions to develop the testimony of a witness, to challenge a witness whose testimony has unfairly surprised the party who called the witness to testify, and to elicit testimony from a witness who either refuses to answer the direct examiner's nonleading questions due to hostility, or is unable to answer such questions clearly and...