Indeed, at the 1995 criminal trial, the State conceded that timing weighed in favor of the declaration's trustworthiness. Brief of Defendant-Appellant with Separately Bound Appendix ("Mr. Jones's DA Brief") at 11-12 (Doc. No. 76-1) (emphasis added) (citing State v. Gold, 180 Conn. 619, 634, 431 A.2d 501 (1980)). State v. Bryant, 202 Conn. 676, 699, 523 A.2d 451 (1987)
As a result of our conclusion, we need not consider today whether the exclusion of that evidence deprived the defendant of his constitutional right to due process of law. See State v. Gold, 180 Conn. 619, 639 n. 10, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). The defendant, Heriberto Lopez, was charged with murder in violation of General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48, and having a weapon in a motor vehicle in violation of General Statutes § 29-38.
The statements described the consumption by the witnesses and the defendant of a large amount of alcohol and crack cocaine in the hours before the defendant stabbed the victim. At trial, the defendant argued that the statements were third party statements against penal interest exculpatory to the defendant and, therefore, were admissible under the hearsay exception set forth in State v. Gold, 180 Conn. 619, 630, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980), and State v. DeFreitas, 179 Conn. 431, 450, 426 A.2d 799 (1980). The trial court concluded that the statements did not meet the Gold and DeFreitas tests and were therefore inadmissible.
State v. Smith, 289 Conn. 598, 631, 960 A.2d 993 (2008). In State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980), we formally adopted the definition of statement against penal interest contained in rule 804 (b) (3) of the Federal Rules of Evidence, stating: "We are persuaded of the logic and soundness of [rule 804 (b) (3)] and the trend to reject a narrow and inflexible definition of a statement against penal interest in favor of a definition which includes not only confessions, but other remarks which would tend to incriminate the declarant were he or she the individual charged with the crime." Id., 642.
" `State v. Villafane, 171 Conn. 644, 674-75, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977)." State v. Gold, 180 Conn. 619, 645-46, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). Although a court has wide discretion in its rulings on the relevancy of evidence; State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984); State v. Runkles, supra; "`"[i]t is always competent for a [defendant] to [present] evidence tending to show that another committed the crime [with] which he is charged . . ."' State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974)."
The defendant has not shown or even argued that the Ricciuti statement comes within any exception recognized in Connecticut. See, e.g., State v. Gold, 180 Conn. 619, 630, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980); State v. DeFreitas, 179 Conn. 431, 450-51, 426 A.2d 799 (1980). Moreover, here, the trial court specifically found that "there was no evidence that the circumstances surrounding the statement provide any sanction for ascertaining its truth . . ."; that is, the trial court did not find it trustworthy.
In this regard, courts have analyzed whether the photographs used were selected or displayed in such a manner as to emphasize or highlight the individual whom the police believe is the suspect. See, e.g., State v. Williams, supra, 203 Conn. 176 (multiple photographs of same individual in same or subsequent photographic arrays possibly suggestive "when, in the context of the entire array, the recurrence unnecessarily emphasizes the defendant's photograph"); State v. Fullwood, supra, 193 Conn. 247 (to be unnecessarily suggestive, variations in array photographs must highlight defendant to point that it affects witness' selection); State v. Gold, 180 Conn. 619,656,431 A.2d 501 ("[when] a feature is placed on the defendant's photograph in order to make the picture conform to the witness' description of the criminal he or she had seen, the identification proceeding has been held to have been rendered highly suggestive"), cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); see also United States v. DeCologero, supra, 530 F.3d 62 (at first step in two-pronged test, court "consider[s] whether the photo[graphic] array included, as far as was practicable, a reasonable number of persons similar in appearance to the suspect"); United States v. Rattler, 475 F.3d 408, 413 (D.C. Cir. 2007) (court must "examine the suggestivity of irregularities between the subjects in the array"). The second factor, which is related to the first but conceptually broader, requires the court to examine the actions of law enforcement personnel to determine whether the witness' "attention was directed to a suspect because of police conduct. . . .
We reject the state's contention on appeal that we should not review this evidentiary claim of the defendant because at trial he had claimed that the evidence was admissible, not under the penal interest hearsay exception, but under the so-called "catch-all" or residual hearsay exception. It is true that in the course of his argument to the trial court, the defendant also referred to that exception as supporting his claim of admissibility. In introducing that claim, however, the defendant argued that the question was governed by State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980), and State v. DeFreitas, 179 Conn. 431, 426 A.2d 799 (1980), both of which are cases involving the penal interest hearsay exception. In addition, the state had filed a memorandum of law with the trial court acknowledging that Cardwell's statements were being "offered under the declaration against penal interest exception to the hearsay rule," and urged, both in its memorandum and in oral argument to the trial court, that the case was controlled by State v. Rivera, 220 Conn. 408, 599 A.2d 1060 (1991), another case involving the penal interest hearsay exception.
The second culminated in a conviction that was overturned on appeal. State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S.Ct. 320, 66 L.Ed.2d 148 (1980). The third trial ended in a mistrial when the petitioner discharged his attorney in open court, before the jury, midway through the proceedings.
The credibility of the witnesses on the motion to suppress was a question for the trial court. State v. McKnight, 191 Conn. 564, 571-72, 469 A.2d 397 (1983); State v. Gold, 180 Conn. 619, 647, 431 A.2d 501 (1980). We find equally unpersuasive the defendant's claim that discrepancies in height between the defendant and several other members of the final array rendered the identification procedure suggestive.