Opinion
No. FBT-CV 05 4005243
October 5, 2011
MEMORANDUM OF DECISION ON PETITION FOR NEW TRIAL
PRELIMINARY STATEMENT
Petitioner Luis Galarza was convicted on capital murder charges in the shooting deaths of Luis Velez and Magdiel Rivera. The jury recommended a sentence of life imprisonment without the possibility of parole, which sentence was imposed by the court (Owens, J.) on September 12, 2003. On January 14, 2005, Galarza filed a Petition for a New Trial pursuant to Conn. Gen. Stat. § 52-270. The gravamen of the operative petition is that newly discovered evidence establishes the petitioner's innocence. For the reasons set forth below, the Petition is DENIED.
The conviction was affirmed. State v. Galarza, 97 Conn.App. 444 (2006).
The petition was amended several times which contributed in part to the lengthy period of time between the filing of the petition and the trial of this matter.
STANDARD OF REVIEW
Conn. Gen. Stat. § 52-270 provides in pertinent part: "The Superior Court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence . . ." Our Supreme Court has recently had an opportunity to reiterate well-established criteria for evaluating a petition for a new trial based upon newly discovered evidence.
A trial court's decision on that ground is governed by the standard set forth in Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987), and further refined in Shabazz v. State, 259 Conn. 811, 827-28, 792 A.2d 797 (2002). Under the Asherman standard, a court is justified in granting a petition for a new trial when the petitioner demonstrates that the evidence offered in support thereof: (1) is newly discovered such that it could not have been discovered previously despite the exercise of due diligence; (2) would be material to the issues on a new trial; (3) is not cumulative; and (4) is likely to produce a different result in the event of a new trial. Asherman v. State, supra, 434. "This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered it is to be considered final, and should not be disturbed by posttrial motions except for a compelling reason." (Internal quotation marks omitted.) Id.
Skakel v. State, 295 Conn. 447, 466-67 (2010). A "new trial will not be granted if the newly discovered evidence could have been known before the trial, by great diligence or if the evidence is merely cumulative." Id. at 467. (Citation omitted.) Even if evidence is newly discovered, it must be material. That is, "if a new trial were granted a different result would be produced." Id. A "different result," means that the new evidence would be likely to result in acquittal of the petitioner, not merely that it might cause one or more jurors to have a reasonable doubt about the petitioner's guilt. Id. at 468, citing, Shabazz v. State, 259 Conn. 811, 823 (2002).
"[I]n determining whether a different result would be produced in a new trial, a trial court necessarily must engage in some form of credibility analysis." Id., citing, Shabazz v. State, supra, 259 Conn. 811, 827 (2002). Further, this court must "consider the newly discovered evidence in the context of the evidence presented in the original trial." Id.
FACTS The Trial of June 2003
The evidence presented at the original trial and the facts to be found therefrom are set forth in detail. State v. Galarza, 97 Conn.App. 444, (2006). For purposes of this court's analysis they are set forth in their entirety. They will be supplemented with other aspects of the trial record as needed.
"On the afternoon of October 14, 1999, Maggie Montes and her husband, Edwin Bonilla, were at the Trumbull Mall and encountered the victims, individuals with whom they were acquainted. Montes testified that everyone was happy. Rivera received a page, however, and then made a telephone call. As a result of the telephone call, Rivera's expression changed. He left the mall alone between 4 and 5 p.m. Montes and Bonilla remained at the mall and later returned with Velez to their home in Bridgeport, where Rivera joined them. The four individuals got into Rivera's brown colored van and drove about Bridgeport. While they were in the van, Rivera received another page and drove to a bar called the Latin Spirit Club. In Montes' opinion, Rivera was not acting like himself."
"Montes had never been to the Latin Spirit Club before and described it as being a place in which she was uncomfortable. Most of the patrons were men between the ages of seventeen and twenty-five, wearing hooded sweatshirts and army fatigue pants with firearms clipped to them. Montes was nervous because everyone looked suspicious and was whispering and looking over their shoulders. Montes stood by the bar and watched Rivera walk to the back of the room. The door to the restroom was ajar, and Montes could see a figure standing at the door. The door was opened for Rivera to enter and closed behind him. Rivera remained in the restroom for ten to fifteen minutes. When he exited, Rivera told Montes, Bonilla and Velez to leave the Latin Spirit Club immediately. Montes described Rivera as looking shocked. Bonilla walked beside Rivera as they proceeded to the van. Rivera and his companions returned to Montes' home, where they sat in the van talking. The substance of their conversation concerned what Rivera had heard in the restroom, an alleged plot to take his life. Montes told Rivera three or four times not to go where he had stated he intended to go. Montes and Bonilla entered their apartment shortly after midnight, leaving the victims in the van."
"At approximately 12:30 a.m. on October 15, 1999, the victims arrived at 116 Corn Tassel Road, Bridgeport, a private home, and parked the van on the street in front of the house. At the time, the victims were in possession of a large quantity of cocaine in powder form, which they intended to process into crack cocaine with the assistance of someone in the house. The approximate value of the cocaine was $40,000 to $50,000. About an hour after the victims entered the residence, they left with the crack cocaine. Very soon thereafter, the residents heard gunshots coming from the street and telephoned the police. Others in the neighborhood also telephoned the police about hearing gunshots."
"Benjamin Mauro, a patrol officer, was dispatched to the residence at about 2 a.m. He found the victims, shot multiple times, inside the van. The window of the passenger door had been shot out. Rivera's body was in the operator's seat with the keys in his hand. Velez' body was on the floor between the front seats. Although no murder weapon was recovered, ten spent nine millimeter shell casings and thirteen bullets and bullet fragments were found at the scene. Ballistics tests revealed that the bullets were all fired from the same gun. A forensic medical examination of the victims' wounds demonstrated that gunshots had been fired through the window of the passenger's side of the van. The injuries caused by bullets on Velez' body revealed that he had turned away from the window when the gunshots were fired. The police recovered no drugs or guns at the scene."
"No one witnessed the murders. The defendant, however, was arrested for the crimes on November 15, 2001, on the basis of statements made by numerous individuals acquainted with both the defendant and the victims. The state prosecuted the defendant on the theory that he had murdered the victims as the result of an escalating dispute between him and Rivera as to the distribution of illegal narcotics in a particular area of Bridgeport. The defendant's theory was that others were responsible for the deaths of the victims." State v. Galarza, 97 Conn.App. 444, 446-48 cert. denied, 280 Conn. 936 (2006).
The witnesses who testified as to incriminating statements made by the defendant regarding his involvement in the murders included: Jesus Lugo; Roberto Hernandez; Carlos Hernandez; Alan Lane; Jose Alvarado; and Steven Necaise. Of particular significance to this petition is the testimony Jesus Lugo and Roberto Hernandez.
Jesus Lugo was a cellmate of the petitioner for about one month at Walker Correctional. They had not previously met. Transcript of Proceedings, June 11, 2003, p. 69. He testified that the petitioner, while they were cellmates, provided information to Lugo about a robbery in New York, which Lugo then provided to law enforcement in a successful effort to have his sentence reduced. He further testified that the petitioner described in detail the Bridgeport murders:
The court has received the transcript of the trial of this matter conducted on various dates between June 2, 2003 and June 24, 2003. References to those transcripts are by date and page number.
He said that there was two kids that were always selling on one of his streets. I guess he owned the street, whatever, he sold his drugs on. And the two kids were selling on his street. And he warned them not to sell on the street . . . He basically told me he had them killed for selling on his street. [Galarza told him they] [s]hot 'em up in a van. They was in a van. They was leaving the street getting into the van. And he said one — him and one of his friends shot the van up . . . And he told me when the kid died he had the keys to the van in his hands. He said when they shot him up, they robbed the kids for the drugs they had in the van . . . One of the kids — one of the brothers had a key in his hands to start the van as if he was leaving when they ran up to the truck the van, started shooting at the van . . . [Galarza] said he had paid the kid that did the murder with him for helping him kill the two kids . . . [Galarza paid] Gs; that's just thousands.
Transcript of proceedings June 11, 2003, pp. 74-76. Lugo was subject to extensive cross examination. The defense accused him of obtaining his information from Roberto Hernandez while the two were at Radgowski Correctional, months after Lugo shared a cell with the petitioner. Lugo steadfastly denied that Hernandez was his source. Id. at 107-11.
Roberto Hernandez met the petitioner in jail in 1998. In the summer of that same year he began working for the petitioner selling heroin in the area of East Main Street and Jane Street in Bridgeport. In the summer of 1999, Hernandez also began working for one of the victims, Magdiel Rivera, also selling drugs. Hernandez testified to a confrontation between himself and the petitioner in which the petitioner told Hernandez they did not want Rivera selling drugs on his block. Transcript of Proceedings, June 9, 2003, pp. 37-38; 44-47. Hernandez also testified to a conversation he had with the petitioner after the murders in which the petitioner described the murders:
[Galarza said] Jose didn't hesitate to kill him . . . He said Jose took the drugs and gave him the guns . . . Jose didn't hesitate to kill them. He lit `em up . . . Jose lit up the van, and that Rivera's little brother tried to run and got shot up . . . Jose got the money, the drugs, and that [Galarza] got the gun . . . [Galarza] said two guns . . . [a] 38, I think it was, and a 9 millimeter . . .
Transcript of Proceedings, June 9, 2003, pp. 52-56. During cross examination, Hernandez acknowledged meeting with police officers, the prosecutor and perhaps others in advance of testifying. Id. at 63-65. He further testified that when petitioner's counsel tried to meet with him, he told counsel he would only meet with him if Jose Alvarado could be present. Id. at 65-66. The following colloquy occurred:
Q: In other words, you two guys, when you talk to me, you wanted to make sure you kept your stories straight; right?
A: No. We wasn't going to go up for nothing 'cuz we was going to walk out on you.
Q: There is no question you didn't want to talk to me unless you and Jose were together at all times talking to me; right?
A: No. We wasn't going to talk to you regardless of the fact — .
Id. at 66-67.
The details of the murders provided by both Lugo and Hernandez are consistent with the crime scene and forensic analysis of the gun shot wounds suffered by the victims.
The testimony was also consistent with the testimony of Alan Lane, Carlos Hernandez, Jose Alvarado and Steve Necaise, all of whom testified that the petitioner made incriminatory statements regarding his involvement in these murders.
The Trial of the Petition in June 2011
The petitioner offered the testimony of John McNicholas, an investigator; Jeremiah Perez; Thomas Garcia and Valerie Della-Vega. He proffered additional evidence to include an affidavit of Roberto Hernandez, now deceased, and a handwritten sworn statement of Jeremiah Perez, who when called to testify, invoked his 5th Amendment privilege against self-incrimination. The court reserved on the admissibility of these two statements, each offered under claimed exceptions to the hearsay rule.
McNichols testified as to his role as the defense investigator in this case, both during and after the trial. He was present and witnessed the sworn statements of Hernandez and Perez. He met with Hernandez at Bridgeport Correctional in 2003. He does not recall the dates but it would have been prior to August 28, 2003, the date on which Hernandez signed the typed affidavit. McNichols testified that he would have created a handwritten statement, returned to the office to have it typed up and then would have had Hernandez sign the typed version on a subsequent visit. McNichols further testified to the circumstances under which he took the statement of Jeremiah Perez.
Jeremiah Perez was called as a witness. After expressing ambivalence or confusion regarding his privilege against self-incrimination, the court continued the matter so that Mr. Perez could speak with his attorney representing him in his habeas petition. At a subsequent date, as the issue was not resolved and Mr. Perez appeared to seek the appointment of counsel in this matter, the court appointed counsel to represent him. Upon consultation with counsel, during his testimony, Mr. Perez invoked his 5th Amendment privilege against self-incrimination and through counsel declined to answer any questions having to do with the homicides for which Mr. Galarza stands convicted.
Thomas Garcia was a friend of Jose Arciniega. (Arciniega died in 2001). He testified that during the investigation of the homicides, he learned from Jose Arciniega's mother that two detectives were looking for Jose Arciniega to speak to him about the homicides. He told Arciniega about the detectives. He describes Arciniega as agitated and upset. He testified that Arciniega said that he had "F'ed up;" and that he started to say he "went to do a favor . . ." at which point Garcia stopped him from further speaking. He said Arciniega was "rambling." Garcia was concerned Arciniega would implicate himself. However, Arciniega did not confess to any wrongdoing in connection with the homicides for which Galarza stands convicted.
The petitioner does not make any argument that the testimony of Garcia provides a basis upon which he should be granted a new trial. Though Garcia is identified in the operative petition, any claim based upon his testimony has been abandoned.
Valerie Della-Vega met the defendant around 1998. She met him through her friendship with Jennifer Cappoziello, who was, at the time, the petitioner's girlfriend. Della-Vega testified that a group of friends, to include the petitioner would go to clubs. She testified that in 1999, she was "clubbing" on Christmas eve with, among others, the petitioner and a person known only as "Lefty." (Lefty is Jose Alvarado.) She testified that she met Lefty for the first time on that evening. When asked what she knew about the homicides, she testified "To my knowledge, that it had something to do with Lefty and him and Jose, who they called Ho I think, did it." When asked the source of this "knowledge" she stated: "Well, it's just, like, what everybody knows and that Chano was, like — they blamed it on Chano. But, I mean, I know that because Lefty told me and Michelle that he took care of it and he got them." At this point, a hearsay objection was raised and the "residual exception" to the hearsay rule claimed. The court sustained the objection as to foundation indicating that it could not, on the basis of the testimony thus far, make the assessments required by the residual exception to the hearsay rule. The petitioner asked only one more question of the witness, where the conversation had occurred. He did not revisit the issue.
The petitioner makes no argument that the testimony of Valerie Della-Vega is the basis upon which a new trial should be granted. Although she is identified in the operative petition, any claim as to her testimony was not briefed and has been abandoned.
DISCUSSION
As indicated, the court reserved decision on the admissibility of the Hernandez and Perez statements. Before reaching the determinations required by the so-called Asherman test, the court must determine the extent of the admissible evidence.
The Perez Statement
Jeremiah Perez was called as a witness and invoked his 5th Amendment privilege against self-incrimination as to any question involving the murders for which the petitioner stands convicted. He is therefore unavailable. His written statement involves his observations on the night of the murders at the Latin Spirit Club; statements he heard made by others; his involvement in the destruction of a firearm which, by implication, may have been the murder weapon in this case. The petitioner has abandoned any claim based upon the written statement of Jeremiah Perez. He neither briefs the admissibility issue nor argues substantively its impact on the court's determination. The court does not therefore address either issue.
Roberto Hernandez
The sole basis upon which the petitioner seeks a new trial is the Affidavit of Roberto Hernandez. The parties agree that the Affidavit of Hernandez is hearsay. The parties agree that Hernandez, having died, is unavailable. The petitioner argues that his affidavit should be admitted as a statement against penal interest and otherwise under the residual exception to the hearsay rule. If the affidavit is inadmissible, the Petition must necessarily be denied as there would be no "new evidence" to introduce at a new trial. If the affidavit is admissible, the court is then required to apply the Asherman test to this evidence.
The court first takes up the issue of the affidavit's admissibility, and begins that analysis by looking to the content of the affidavit.
In the affidavit, Hernandez states that "I am providing this statement for one reason; that is, in order to identify certain false testimony which was provided by an individual named Jesus Lugo in June of 2003 at the trial of Luis Galarza." It should be noted initially that Hernandez does not recant his testimony regarding the petitioner's statements to him regarding the murders; he does not recant his testimony regarding the petitioner's motive for the murders, i.e. that Rivera was selling drugs on his block. His affidavit does not touch upon, in any fashion, the substantive portion of his testimony. The affidavit simply contradicts his own and Lugo's testimony on matters of impeachment. The affidavit details a conspiracy of sorts between he and Lugo through which Lugo would falsely assert that Galarza confessed to him during their incarceration at Walker. Hernandez acknowledges giving false testimony on the issue of whether he knew and had spoken to Lugo prior to testifying. He details the circumstances under which he believes Lugo came to be in possession of the information about the murders. He asserts that the basis of Lugo's testimony was not the petitioner, but was he himself. Finally, Hernandez states that he never had any intention of talking with the petitioner's lawyers in advance of the trial.
Although there is argument that this portion of the affidavit is also inconsistent with Hernandez' trial testimony, the court finds that it is not. Hernandez tried on more than one occasion, before being interrupted, to tell petitioner's counsel that he had no intention of speaking with him, under any circumstance. See, supra.
C.C.E. § 8-6(4) provides, as an exception to the hearsay rule, that a "trustworthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true" is admissible. The declarant must be unavailable to testify. The Code also sets forth the parameters by which the court measures whether a statement is "trustworthy:"
In determining the trustworthiness of a statement against penal interest, the court shall consider (a) the time the statement was made and the person to whom the statement was made, (b) the existence of corroborating evidence in the case, and (c) the extent to which the statement was against the declarant's penal interest.
C.C.E. § 8-4(6). The threshold inquiry is whether the statement was against penal interest. See, Skakel v. State, 295 Conn. 444, 525-26 (2010) (concurring opinion, Zarella, J.); State v. Savage, 34 Conn.App. 166, 172 (1994) (referring to question of whether a statement is against penal interest as a "threshold determination"); United States v. Brainard, 690 F.2d 1117 (D.C. Cir. 1982) (Held that whether a statement is a statement against penal interest is a threshold inquiry). Statements that suggest the declarant had an "insider's knowledge of the crime" or statements that "strongly imply the declarant's personal participation in a crime" meet this threshold requirement. Skakel v. State, supra., 295 Conn. at 526 (concurring opinion, Zarella, J.), citing, State v. Barrett, 539 F.2d 244, 249 (1st Cir. 1976).
Here, there can be no question that portions of the affidavit contain statements against penal interest. At paragraph 3, Hernandez states that he gave false testimony at the trial of this matter. He further describes a conspiracy of sorts between he and Lugo for Lugo to give false testimony in this matter. Those statements and the factual assertions which contradict Hernandez' trial testimony meet this threshold determination.
Other portions of the affidavit are clearly not statements against penal interest or are assertions which suffer from other evidentiary infirmities. For example, the affidavit is phrased in many respects as Hernandez' comment upon the testimony of Lugo and as such is written in a context which would never be permitted were Hernandez a live witness. State v. Manganella, 113 Conn. 209, 216 (1931) (Hearsay declarations only admissible if the declarant would be permitted to testify to the statement were the declarant a witness at trial). Rather than simply provide testimony that is factually inconsistent with the testimony of Lugo, the affidavit purports to identify that portion of Lugo's testimony that was false. Such testimony is not permitted. State v. Thompson, 69 Conn.App. 299, 317 (2002) (A witness invades the province of the jury when he testifies as to the truthfulness of another witness' claims); State v. Butler, 36 Conn.App. 525, 530 (1995) (same). In the affidavit, Hernandez also purports to testify as to what Lugo knew and did not know. He asserts that Lugo learned the details of the murder by overhearing a conversation Hernandez had with someone named "Saveh." Again, testimony which purports to disclose that which was within another's mind, is generally outside the scope of the witnesses' personal knowledge. See, Tait's Handbook of Connecticut Evidence, Tait and Prescott, (4th Ed. §§ 6.4 and 7.1); Jacobs v. General Electric Co., 275 Conn. 395 (2005) (Lay witness limited to testimony as to his own personal observations; opinion as to observations or motivations of others are inadmissible). While the affidavit contains sufficient factual assertions to place these otherwise inadmissible commentaries in context, any use of the affidavit would require substantial redaction so as to address these competency issues. See, State v. Manganella, supra., 113 Conn. 216 (where some statements are admissible and others not, the inadmissible statements should not be permitted).
At paragraph 2, Hernandez asserts: "I have had the opportunity to review the full trial transcript of the testimony of Jesus Lugo which Lugo provided during the trial of Luis Galarza. During his testimony, Lugo told many lies." At paragraph 3, he summarizes Lugo's testimony and then states: "The above testimony provided by Jesus Lugo about the frequency that he and I were together at Radgowski is completely false." Repeatedly, Hernandez asserts, in connection with Lugo's testimony that "Lugo lied." Not only are these statements not against penal interest, they are otherwise impermissible commentary on the testimony of another witness.
Having determined that portions of the affidavit contain statements against penal interest, the court must next take up the issue of trustworthiness. Generally, a statement against penal interest is admissible if it is deemed trustworthy. Code of Evid. Section 8-6(4). Trustworthiness is demonstrated by looking to several factors; the extent to which the statement is against penal interest; corroboration of the statement; the time at which the statement was made and the person to whom the statement was made. State v. DeFreitas, 179 Conn. 431, 451 (1980). No single factor is "necessarily conclusive," and the trial court should consider all of the factors and determine whether the totality of the circumstances supports the trustworthiness of the statement. State v. Lopez, 254 Conn. 309, 316 (2000). Under this standard, the Hernandez affidavit is not admissible as a statement against penal interest.
The court looks first to the question of corroboration. Corroboration is an important component when assessing a statement against penal interest, as it protects against fabrication and collusion. State v. Rivera, 221 Conn. 58, 71 (1992). "Therefore, the statement must be accompanied by corroborating circumstances that clearly indicate the statement's trustworthiness." State v. Lopez, 254 Conn. 309, 319 (2000) (emphasis original). The corroboration component for the admission of a statement against penal interest "is significant and goes beyond minimal corroboration." Id. quoting, CT Page 21198 State v. Rosado, 218 Conn. 239, 249 (1991). Here, neither the petitioner's evidence nor the trial record includes any corroboration of Hernandez' statements regarding the plot to have Jesus Lugo give false testimony and the source of that false testimony. Indeed, to the contrary, the source of Lugo's information was the subject of extensive cross examination of both Lugo and Hernandez. Lugo remained steadfast that he was testifying from his own personal knowledge. Thus, the affidavit does no more than inject an uncorroborated "he said — he said" debate into the case as to the source of Lugo's information.
Those peripheral items which are corroborated in the trial record, i.e. that Lugo and Hernandez were at Radgowski at the same time, saw each other and were able to speak to each other, were before the jury and the basis upon which Lugo's credibility was attacked at trial.
Furthermore, the affidavit contains what could be verifiable details, i.e. dorm assignments at Radgowski, and identifies a third person who is alleged to have witnessed the conversation through which Lugo allegedly acquired his information regarding the murders. The fact that material portions of the affidavit could be but were not corroborated militates against a finding that the statement is trustworthy.
The next factor for consideration is the timing of the statement. Generally, a prompt declaration is considered to be an indicator of trustworthiness, while a delayed declaration suggests the opposite. State v. Skakel, supra, 295 Conn. 539 (concurring opinion, Zarella, J.); State v. Lopez, supra, 254 Conn. 317 ("declarations made soon after the crime suggest more reliability than those made after a lapse of time where a declarant has a more ample opportunity for reflection and contrivance"). Here, the statement was signed over two months from the date of Hernandez' trial testimony. It is unclear when he may have first made oral statements to the investigator which were subsequently typed up for signature. While the timing is therefore reasonably prompt, there was still adequate time for "reflection and contrivance."
The court next turns to the factor of to whom the statement is made. Our Supreme Court has held that the person to whom the statement against penal interest was made must be "one in whom the declarant would naturally confide." State v. Lopez, supra, 254 Conn. 317, quoting State v. Hernandez, 204 Conn. 377, 392 (1987). "There must be a relationship in which the two parties to the conversation had a close and confidential relationship." Id. at 318, quoting, State v. Rivera, 221 Conn. 58, 70 (1992). Here, the statement was given to a defense investigator with whom the declarant had no prior relationship. This factor therefore militates against a finding of trustworthiness.
As to the extent to which the statement is against penal interest, the court notes that Hernandez puts the blame on Jesus Lugo for hatching the plan by which Lugo would provide information to the police in order to get a further sentence reduction. In so doing, he reduces his own role in the plan to only being the source of Lugo's information. This minimization of his role in the plan undermines the credibility of the statement. As noted, he does not recant any substantive portion of his testimony. He does admit to giving false testimony, albeit on peripheral matters. This factor is, in the court's view, at best neutral on the issue of trustworthiness.
For all of the foregoing reasons, the Hernandez affidavit is not adequately trustworthy to be admissible as a statement against penal interest and the petition is denied on that basis.
Though not briefed, this court has considered and similarly rejects the petitioner's claim that the affidavit is admissible under the residual exception to the hearsay rule. C.C.E. § 8-9. There are simply inadequate indicium of trustworthiness and the evidence cannot fairly be characterized as reasonably necessary to the resolution of the case. See, State v. Sharpe, 195 Conn. 651, 664-66 (1985).
However, even if admissible, the affidavit, in combination with the other evidence offered, would not mandate that a new trial be held. While it is material to the credibility of Lugo and Hernandez, it is cumulative and would not likely result in an acquittal at a new trial.
Arguably, the evidence is not "newly discovered" either. The affidavit was executed in advance of sentencing and brought to the attention of the trial court. While it does not appear that the trial court made any specific findings, it is clear that the trial court did not order a new trial on the basis of the affidavit. The state also claims that the petitioner's counsel knew of this information prior to trial but chose not to use it. It appears to this court that the state relies upon a misreading of the transcript in which Attorney Mastronardi says that he had the information for quite a while but did not act upon it. Attorney Mastronardi is paraphrasing the testimony of Jesus Lugo, not describing his own obtaining of the Hernandez information. It would be difficult indeed for Attorney Mastronardi to acquire the information in September of 2000 when his client was not even arrested and charged with these crimes until 2001. It was Lugo who allegedly acquired his information about the murders in September of 2000, when he was housed with Galarza at Walker.
The affidavit, in its best light, provides cumulative impeachment material for both Hernandez' testimony and Lugo's testimony. Both were subject to vigorous cross-examination and the jury heard much evidence which could undermine their credibility. The jury learned that Hernandez was a drug dealer with a lengthy criminal record. The jury further learned that Hernandez was himself a suspect in the murders for which the petitioner stands convicted. As to Lugo, the jury learned that he had multiple convictions, to include felonies; he was a drug dealer; he had previously provided information to law enforcement in order to obtain a sentence modification; and he gave prior inconsistent statements regarding the content of the petitioner's confession.
On the issue for which the affidavit is offered, Lugo's source of the information about the murders, the jury heard that Lugo and Hernandez were housed at Radgowski at the same time and saw each other and spoke to each other. Both Lugo and Hernandez were cross examined on whether they spoke to each other about the details of the murder in advance of Lugo speaking with detectives. At trial, both denied it. In the affidavit, Hernandez indicates that he lied at trial and that he did discuss and provide information to Lugo regarding the murders. Additional fodder for cross examination, especially on a subject matter well covered at the trial, is not a basis upon which a petition for a new trial should be granted. See, State v. Smith, 139 Conn. 249, 251 (1952). Indeed, in State v. Edwards, 10 Conn.App. 503, 516 (1987) the Appellate Court held:
Where claimed newly discovered evidence would merely affect the credibility of a witness, it is not a ground for a new trial unless it is reasonably probable that on a new trial there would be a different result . . . Only under the most exceptional circumstances, even in a capital case, could a witness' testimony be so important and influential that a court could, within the limits of a sound discretion, determine that new evidence merely impeaching the witness' credibility would probably produce a different result . . . The rule restricting the right to a new trial when one is claimed on the basis of newly discovered evidence merely affecting the credibility of a witness is necessary because `scarcely has there been an important trial, with many witnesses, where [after the trial] diligent search would not have discovered evidence [to impeach the character of] some witness on the trial.'
Id., quoting, Lancaster v. Bank of New York, 147 Conn. 566, 578 (1960). This is especially so under circumstances such as those presented here. As the Appellate Court noted, many of the states' witnesses: "were either convicted, felons, . . . were involved in and benefitted from illegal drug sales . . . lived by their wits and generally demonstrated poor judgment or lack of moral character. In short those witnesses did not possess those qualities that generally indicate to law abiding society an individual's penchant for truthfulness." State v. Galarza, 97 Conn.App. 444, 452 (2006). Lugo and Hernandez were no exception to this assessment. The affidavit is cumulative as it presents only additional reason to question Hernandez' and Lugo's "penchant for truthfulness."
Moreover, as to the fourth prong of the Asherman test:
"[W]hether a new trial should be granted does not turn on whether the evidence is such that the jury could extend credibility to it . . . The [petitioner] must persuade the court that the new evidence he submits will probably, not merely possibly, result in a different verdict at a new trial . . . It is not sufficient for him to bring in new evidence from which a jury could find him not guilty — it must be evidence which persuades the judge that a jury [probably] would find him not guilty . . . This articulation of the petitioner's burden of proof assigns to the trial court, in the first instance, the responsibility of evaluating the credibility of the evidence in order to decide properly whether a new trial would produce a different result. In elaborating on this point, we explicitly [have] approved of Judge Cardozo's concurring opinion in People v. Shilitano, 218 N.Y. 161, 180, 112 N.E. 733 (1916), wherein he stated that a judge, faced with conflicting stories [on a petition for a new trial], should [not] abandon the search for truth and turn it over to a jury . . . [Rather] it [is] the duty of the trial judge to try the facts, and determine as best he [can] where the likelihood of the truth lay . . . He [is] not at liberty to shift upon the shoulders of another jury his own responsibility." (Citations omitted; emphasis in original; internal quotation marks omitted.)
Skakel, supra, 295 Conn. 482. Here, this court does not find the Hernandez affidavit credible largely for those reasons set forth in the court's determination that it would not be admissible. However, whether a jury would or would not extend credibility to the Hernandez affidavit, this court is not persuaded that the insertion of this affidavit into the credibility assessment of these witnesses would likely result in an acquittal at a new trial.
The court is mindful of the competing interests implicated in a petition for a new trial based upon newly discovered evidence, as those interests were set forth in Skakel. This court has adhered to the mechanism provided therein for balancing those interest when evaluating the fourth prong of the Asherman test. See, Skakel v. State, supra, 295 Conn. 482-83.
The Petition for a New Trial is DENIED.