State v. Rosa

196 Conn.App. 490

230 A.3d 677

STATE of Connecticut

v.Tyrone ROSA

AC 42267

Appellate Court of Connecticut.

Argued October 11, 2019

Officially released March 17, 2020

Daniel J. Krisch, Hartford, assigned counsel, for the appellant (defendant).

Nancy L. Chupak, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin D. Krawczyk, senior assistant state's attorney, for the appellee (state).

Keller, Elgo and Bright, Js.

KELLER, J.

The defendant, Tyrone Rosa, appeals from the judgment of conviction, rendered following a jury trial, of one count of murder in violation of General Statutes § 53a-54a, one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (5) and one count of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The defendant claims that the state suppressed evidence in violation of Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Specifically, the defendant asserts that, either before his trial began or while the trial was ongoing, the state, via its agent, the Department of Emergency Services and Public Protection's division of scientific services (division), acquired evidence that the Combined DNA Index System (CODIS)¹ reported that a DNA profile that was developed from the swabbing of a discarded sweatshirt found in the vicinity of the crime scene matched (CODIS match) a DNA sample collected from a convicted felon, Javier Otero. He asserts that this evidence, which was favorable to him and material for purposes of Brady , was not disclosed to the defense until after the jury had returned a guilty verdict. He asserts that this evidence would have bolstered his sole theory of defense that an unknown gunman committed the crimes and also would have discredited the state's key witness. We affirm the judgment of the trial court because we conclude that the defendant has failed to prove that the CODIS match was material to his defense.

On the basis of the evidence presented at trial and the reasonable inferences drawn therefrom, the jury reasonably could have found the following facts. The victims, Dederick ‘‘DJ’’ Jiminez and Hiram ‘‘Sito’’ Martinez, had been close friends since childhood. In 2009,

Jiminez became friends with the defendant while the two were incarcerated in the same prison. Jiminez knew the defendant by his nicknames of ‘‘Flex’’ and ‘‘Pipone.’’ Jiminez introduced the defendant to Martinez, who began selling drugs with the defendant.

The defendant was friends with Joel ‘‘Tuti’’ Gonzalez, who had a brother named Mariano ‘‘Papa’’ Gonzalez. The defendant claimed to have never met Mariano Gonzalez, but when the police showed the defendant his photograph, the defendant identified him. On December 14, 2014, Mariano Gonzalez was murdered on Bond Street in Hartford, and the police suspected that Martinez was the perpetrator.

On December 20, 2014, Jiminez and Martinez drove in Martinez’ tan-colored Honda to an after-hours club on Francis Avenue in Hartford.² They arrived between 3 and 4 a.m. and encountered the defendant inside the club. The defendant was there with a close friend, Carlos ‘‘Cuz Los’’ Mangual. At the club, the defendant began talking to Martinez. Jiminez walked away while Martinez and the defendant continued to talk. After Martinez and the defendant stopped talking, the defendant approached Jiminez and asked him what had happened on Bond Street. Jiminez believed that Martinez had just told the defendant that he was the one who had killed Mariano Gonzalez on Bond Street. Jiminez replied that Mariano Gonzalez ‘‘got what he deserved’’ because he had tried to rob Martinez and had tried to ‘‘run up in [Martinez’] house with his family.’’ After hearing this information from Jiminez, the defendant's mood changed. He became quiet and no longer wanted to talk. Jiminez, at that time, was unaware that Joel Gonzalez and Mariano Gonzalez were brothers, although he knew that they were related. He also was unaware of the defendant's friendship with Joel Gonzalez.

At about 5 a.m., as Jiminez and Martinez were leaving the after-hours club, the defendant approached them and asked if they had any cigarettes. When they responded that they did not, he asked them to give him a ride to get some. Jiminez refused because there was no room in the automobile's backseat, which was crowded with his possessions. Upon Martinez’ insistence, however, Martinez and Jiminez made room for the defendant in the backseat of the automobile, behind the driver. The defendant got inside of the automobile in the space made for him. Jiminez got into the driver's seat and Martinez got into the front passenger seat.

The defendant directed Jiminez to drive to the residence of the defendant's sister, which was located at the corner of Park Street and Hazel Street. After learning that no one inside of the house had any cigarettes, the defendant directed Jiminez to drive to a twenty-four hour convenience store at Park Street and Broad Street. When the three men arrived at the store, however, the defendant refused to go inside, insisting that Martinez go inside instead. Martinez refused, and he and the defendant argued until Jiminez got out of the car, went inside the store, and purchased cigarettes. After Jiminez purchased the cigarettes, the defendant directed him to drive to Hendricxsen Avenue. When they arrived at Hendricxsen Avenue, adjacent to a vacant lot, the defendant told Jiminez to park the automobile because he needed to urinate. Jiminez complied and parked the automobile close to the street corner at which Hendricxsen Avenue and Masseek Street meet, and the defendant exited the automobile.

Initially, Jiminez could not see where the defendant went because the defendant had left the automobile door open, which caused the interior dome light to remain on and obscure his view of the defendant. Once Jiminez had closed the door, however, he saw the defendant standing behind the automobile, by a fence. Jiminez heard the defendant talking on his cell phone as

he returned to the automobile. Once he was back inside the automobile, the defendant asked Jiminez and Martinez if they wanted to go to the home of one of his friends and have a few drinks. Both of them agreed.

As he waited for directions from the defendant to the friend's house, Jiminez checked his cell phone. He suddenly heard a loud bang from the backseat of the automobile. Stunned by the loudness of the bang, he brought his hands up to his ears and ducked down. He then felt his right arm fall to his side and realized that his arm did not feel right. He opened the driver's side door, got out of the automobile and ran. While running, he looked back and saw only the defendant standing outside of the automobile. He did not see Martinez exit the automobile and did not see anyone else on the street.

Jiminez ran through a vacant lot, toward a building located at 62 Hendricxsen Avenue. A woman inside the building yelled to him that she was coming downstairs to open the door. Jiminez went inside and lay down on the steps. The woman called 911.

At approximately 5:40 a.m., Hartford Police Officer Christopher White was dispatched to 62 Hendricxsen Avenue, where he found Jiminez in the stairwell, bleeding and holding his shoulder. At approximately 5:41 a.m., Hartford Police Officer Matthew Steinmetz was dispatched to the area of Hendricxsen Avenue and Masseek Street on a report of a shooting and a victim inside a tan Honda. Steinmetz found the engine of the tan Honda running and Martinez slumped over the center console with a gunshot wound to the back left side of his head. He did not see any other people in the area.

Martinez later was pronounced dead as a result of the gunshot wound that he had sustained to his head. Jiminez, who had been shot twice, underwent surgery to repair gunshot wounds to his shoulder and elbow. Physicians were unable to remove the bullet that was

lodged in his shoulder without risking greater damage and had to place permanent plates and rods in his elbow, which had shattered. After surgery, Jiminez told the police that the defendant, whom he called ‘‘Pipone,’’ had shot him. He gave a description of ‘‘Pipone’’ that matched the defendant's appearance at the time of the shooting. Later, he gave a written statement to the police and selected the defendant's photograph from a sequential photographic array. Hartford police lifted the defendant's fingerprint from the interior handle of the rear door on the driver's side of the automobile, next to the seat where Jiminez had said the defendant was sitting when he fired the gun.

After leaving the after-hours club, Mangual could not find the defendant and repeatedly tried to call him. It was not until 5:36 a.m. that the defendant answered his phone. The defendant told Mangual to pick him up. Thereafter, Mangual picked up the defendant on Stonington Street in Hartford, which is near Hendricxsen Avenue, where the shootings occurred, and is separated from the scene of the crimes only by a vacant lot with a path running through it. Portions of the path are horseshoe shaped. When Mangual arrived to pick up the defendant, the defendant told him that he ‘‘almost got shot.’’

After their initial investigation, the Hartford police suspected that the defendant had some involvement in the shooting of Jiminez and Martinez. At the request of the police, on December 31, 2014, the defendant was taken into custody by his parole officer and transported to the Hartford Police Department, where he consented to be interviewed. He provided the police with a fake cell phone number and falsely denied that one of his nicknames was ‘‘Flex.’’ The police found a public Facebook profile for the defendant that reflected his use of that nickname. Although the defendant admitted that he knew Joel Gonzalez, he falsely denied associating with him. The defendant's cell phone records,

which later were seized by the...