STATE OF CONNECTICUT v. EDWIN FRANQUI, SC 21014

Judicial District of Hartford

Criminal; Whether Evidence Sufficient for Conviction of Conspiracy to Commit Murder, Accessory to Murder and Accessory to First Degree Assault with Firearm; Whether, Without Strong Collaboration, Due Process Permits Conviction Based on Prior Out of Court Inconsistent Statements Regarding Identification; Whether Excited Utterance Exception to Hearsay Rule Should Be Abrogated. The defendant was charged with conspiracy to commit murder, accessory to murder and accessory to assault in the first degree stemming from an incident in which Junny Lara-Velasquez was shot to death while driving his motor vehicle and his back seat passenger was also wounded. Lara-Velasquez's girlfriend, Dayzani Ortiz, was riding in the front seat. She grabbed the steering wheel and tried unsuccessfully to stop the vehicle, but it ultimately crashed into a building in West Hartford. Surveillance video showed an Infiniti driving in tandem with Lara-Velasquez's vehicle in the wrong lane just before Lara-Velasquez's vehicle veered off the road into the building. Minutes after the incident, Ortiz told responding West Hartford police officer Michael Rousseau that "ATM" and "Cama," which are the street names for the defendant and his brother, were responsible for the shooting and that they were in an Infiniti. Later that day, Ortiz gave a sworn written statement at the police station that she saw the defendant in the driver's seat of the Infiniti and that Cama was in the passenger seat pointing a gun at them. At trial, however, while Ortiz testified that she had told the police that the defendant and Cama were involved in the incident, she also stated at certain points that she could not see the gun and was not sure who the gunman was and, at other points, that Cama was the shooter and that she could not see the driver. Officer Rousseau was permitted to testify under the excited utterance exception to the hearsay rule as to the statement made by Ortiz at the crime scene. Rousseau also was permitted under State v. Whelan, 200 Conn. 743 (1986), to read Ortiz's written statement into the record. Whelan permits the substantive use of prior written inconsistent statements signed by a declarant who has personal knowledge of the facts stated, if the declarant is subject to cross-examination at trial. There was also testimony at trial that the Infiniti belonged to the defendant and Cama and that, in the hours before the shooting, there was a dispute between the defendant, Cama and Lara-Velasquez, after which Cama stated that he was going to shoot Lara-Velasquez. A jury convicted the defendant as charged, and the defendant appealed his conviction directly to the Supreme Court pursuant to General Statutes § 51-199. On appeal, the defendant claims that there was insufficient evidence to convict him because Ortiz's Whelan statement and her excited utterance did not provide the factual support necessary to find that he was the driver of the car from which the murder was committed. The defendant claims, in the alternative, that the Supreme Court should (1) reverse his conviction either by holding that, without strong corroboration, due process does not permit a conviction based on prior out of court inconsistent statements regarding identification or by overruling Whelan or (2) exercise its supervisory authority to abrogate the excited utterance exception to the hearsay rule because its underlying assumption is not supported by empirical evidence and then reverse his conviction based on insufficient evidence.