STATE OF CONNECTICUT v. EDWIN FRANQUI, SC 21073

Judicial District of Hartford

Criminal; Murder; Hearsay; Plain Error; Supervisory Authority; Whether Trial Court Erred by Failing to Sua Sponte Give Jury Instruction on Eyewitness Identification; Whether Supreme Court Should Abandon or Modify Excited Utterance Exception to Rule Against Hearsay. On the night of July 5, 2020, Junny Lara-Velazquez had an altercation with the defendant, whose street name is "Cama," as well as the defendant's younger brother, whose street name is "ATM." The next afternoon, Lara-Velazquez was driving his girlfriend, Dayzani Ortiz, and Delymar Rios to get food when Ortiz recognized a "tan Infiniti" owned by the defendant and ATM driving nearby. She then saw a firearm sticking out of the Infiniti's window before hearing gunshots, which struck Lara-Velazquez, killing him, as well as Rios, who survived. The responding officers found Ortiz in the vehicle, which had crashed into a restaurant after the shooting, and she identified "Cama" as well as "ATM" as the assailants, providing a description of their vehicle. She later gave a sworn written statement to that effect, in which she identified the defendant as the shooter. He was charged with, inter alia, murder and conspiracy to commit murder, and the brothers were tried jointly. Ortiz gave equivocal testimony about the shooter's identity at trial such that her written statement was admitted as substantive evidence. An officer testified about Ortiz' statements identifying the defendant and ATM immediately following the shooting pursuant to the excited utterance exception to the rule against hearsay, which is codified in § 8-3 (2) of the Connecticut Code of Evidence and allows into evidence "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The defendant argued during his closing statement that Ortiz' identification was unreliable given her inability to see the shooter and certain evidentiary inconsistencies, but neither party submitted a request to charge the jury, and the trial court gave the general instruction regarding witness credibility. The jury found the defendant guilty of murder, and he appealed directly to this court pursuant to General Statutes § 51-199 (b) (3). On appeal, he claims that the trial court erred by not sua sponte giving a specific instruction on "the various ways in which eyewitness identification testimony may be unreliable," as discussed in State v. Guilbert (306 Conn. 218). He argues that the trial court's general credibility instruction left the jury "without any guidance" such that it was unable to assess either Ortiz' identification or Rios' "differing" account. The defendant contends that this amounts to plain error and also asks the Supreme Court to require, under its supervisory authority, that a trial court instruct juries on the fallibility of eyewitness identifications when a "good faith misidentification is at issue." Furthermore, the defendant claims that the excited utterance exception should be modified or abandoned because it is based on a "misunderstanding of the effect of high stress on the accuracy of a witness' perceptions and memory." According to the defendant, continuing to recognize the exception is inconsistent with the reasoning in Guilbert "that high levels of stress and shocking events hinder a witness' perception," as the excited utterance exception is based on the principle that "the stress makes the witness' perception reliable." The state responds that the jury instructions did not amount to plain error, that the exercise of the Supreme Court's supervisory authority is unwarranted, and that the defendant waived his claim regarding the excited utterance exception. Moreover, the state argues that "[t]he excited utterance exception does not assume that stress heightens accuracy" because it is based on the rationale that a statement is trustworthy when the declarant lacks an opportunity for deliberation or fabrication.