State v. Rivera

Citations

• 200 Conn. App. 487

Syllabus

Convicted, after a jury trial, of various crimes, including murder, in connec- tion with the shooting death of the victim, the defendant appealed. One individual, R, witnessed the shooting and called 911, but later, R was unable to identify the defendant in a photographic array prepared by the police. Several weeks after the shooting, the defendant and V were discussing the shooting in the defendant's vehicle, and the defendant admitted to having killed the victim. Without the defendant's knowledge, V had recorded the conversation on his cell phone and brought the recording to the police and, as the police requested, V then e-mailed the recording to the police. The state introduced a copy of V's recording into evidence at trial, over the defendant's objection. Held: 1. The trial court acted within its discretion when it limited two of defense counsel's closing arguments by providing the jury with curative instructions: a. Defense counsel improperly asked the jury to engage in speculation and improperly commented on facts not in evidence when counsel asked the jury to consider why the state did not ask R to make an in-court identification of the defendant, there having been no evidence in the record on which the jury could have based such a conclusion and counsel was well aware of the reason why the state did not make such a request; moreover, because it was well within the court's discretion to give its own curative instruction to the jury, the defendant's claim that the court was required to use the jury instruction language set forth in State v. Dickson (322 Conn. 410) was unavailing, as that argument was based on an incorrect reading of Dickson, and the jury instruction language therein was inapplicable. b. Defense counsel's investigative omission argument regarding the lack of a voice exemplar taken from the defendant to question whether it was the defendant's voice on the recording made by V improperly commented on facts not in evidence, the record having conta