State v. Oscar H.

Citations

• 204 Conn. App. 207

Syllabus

The defendant, who had been convicted of several crimes, including murder, as a result of the stabbing death of N, appealed, claiming that the trial court improperly admitted into evidence the deposition testimony of B, whom the defendant also stabbed during the same incident, after having improperly determined pursuant to the former testimony exception to the rule against hearsay in the applicable provision (§ 8-6 (1)) of the Connecticut Code of Evidence that B, an undocumented immigrant, who had returned to her native Guatemala prior to trial, was unavailable to testify. The defendant also claimed that his conviction of attempt to commit murder and assault in the first degree as to B violated the constitutional prohibition against double jeopardy because each crime was predicated on the same act against B. Prior to trial, the court granted the state's motion to issue a subpoena for B to be deposed, as her return to Guatemala would put her beyond the state's subpoena power. At the judicially supervised deposition, which was video-recorded and tran- scribed, the defendant had an opportunity to cross-examine B without any restrictions by the court. B, who spoke no English, thereafter left for Guatemala. At trial, P, a director of an immigrant services organization, testified that she had spoken with B at least once a month after B returned to Guatemala and that, at the state's request, she spoke to B by phone three days before the trial and B indicated that she would not voluntarily return to Connecticut to testify. The defendant argued that the state had failed to establish B's unavailability because, inter alia, P spoke with B only by phone and did not testify that she had seen B in Guatemala, there was no evidence that B had been forced to leave the United States and because the state should have advised B not to return to Guatemala. The trial court admitted the videotaped deposition, con- cluding that the state had met its burden of establishing B's unavailabilit