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STATE OF CONNECTICUT v. MICHAEL MARK

(AC 38566)

Lavine, Beach and Keller, Js.*

Argued October 27, 2016—officially released January 17, 2017

(Appeal from Superior Court, judicial district of

Waterbury, Cremins, J.)

Alice Osedach, assistant public defender, for the

appellant (defendant).

Michele C. Lukban, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Cynthia S. Serafini and Terence D. Mariani,

senior assistant state’s attorneys, for the appellee

(state).
Opinion

LAVINE, J. The defendant, Michael Mark, appeals

from the judgment of conviction, rendered after a jury

trial, of one count each of murderin violation of General

Statutes § 53a-54a (a), felony murder in violation of

General Statutes § 53a-54c, robbery in the first degree

in violation of General Statutes § 53a-134 (a) (1), robbery in the first degree in violation of § 53a-134 (a)

(3), and conspiracy to commit robbery in violation of

General Statutes §§ 53a-48 (a) and 53a-134.1 On appeal,

the defendant claims that the trial court (1) abused its

discretion by excluding evidence that supported his

third party culpability defense, and (2) violated his constitutional right against double jeopardy guaranteed by

the fifth and fourteenth amendments to the United

States constitution and article first, §§ 8 and 9, of the

constitution of Connecticut. We affirm the judgment of

the trial court.

This appeal arises from the robbery and murder of

Arnaldo Gonzalez, the victim, who was bludgeoned to

death with a rock. The state’s separate appeal, State v.

Mark, 170 Conn. App. 241, A.3d (2017), also

released today, sets forth the facts that the jury reasonably could have found and the pertinent procedural

history. Additional facts pertaining to the defendant’s

claims will be set forth as necessary.

I

First, the defendant claims that the trial court abused

its discretion by granting the state’s motion in limine

to preclude him from presenting evidence of four other

robberies thattook place in Waterbury at approximately

the same time as the robbery in the present case. Specifically, the defendant argues that the evidence supported

his third party culpability defense and that similarities

among all of the robberies ‘‘establish[ed] a connection’’

between the perpetrators of the other robberies and

the robbery in the present case. The state argues that

the trial court did not abuse its discretion because the

proffered evidence ‘‘failed to establish a direct connection between the charged offenses and [the] other robberies . . . .’’ We agree with the state.

The following additional facts are relevant to this

claim. On April 21, 2014, the day before the trial began,

the state filed a motion in limine asking the court to

preclude the defense from introducing into evidence

any testimony regarding four other robberies that had

occurred in Waterbury on November 1 and 2, 2010. The

state also moved to require the defendant to make an

offer of proof prior to the introduction of any evidence

that would support a third party culpability defense,

namely, that any evidence that the perpetrators of the

four otherrobberies committed the robbery and murder

of the victim. The state argued such evidence was irrelevant, not probative, and prejudicial. The court reserved
its decision on the motion in limine.

Throughout the state’s case-in-chief, the defendant

repeatedly attempted to put into evidence proof of the

other robberies. First, during cross-examination of the

state’s first witness, David Vaught, who maintained

maps forthe city of Waterbury, the defendant attempted

to introduce into evidence maps that showed the locations of four other robberies that took place in the early

morning of November 2, 2010. Outside the presence of

the jury, the defendant stated that he had subpoenaed

police reports of other robberies and argued that the

maps of the locations of the robberies were relevant

to show the close proximity of the other robberies to

the robbery in the present case. The defendant argued

that there were similarities among the robberies that

made evidence of the other robberies relevant to his

third party culpability defense.2 The robberies were

claimed to be similar in that: (1) they took place at

approximately the same time and in the same vicinity

as the robbery in the present case, (2) they all involved

an assault on a victim, (3) the other robberies were

committed by three people with a long history of

assaults, (4) police found a cigarette butt in the van

that the perpetrators of the four robberies used that

was the same brand of cigarette found at the murder

scene, and (5) the police initially investigated all of

the robberies as having been perpetrated by the same

individuals. He argued that these facts, which were not

yet in evidence, tended to show that a third party or

parties, namely, the perpetrators of the other robberies,

committed the robbery and murder of the victim. The

defendant did concede, however, that there was no

DNA evidence linking the perpetrators of the four robberies to the crime scene in the present case. The court

sustained the state’s objection on the ground that the

maps were irrelevant because it did not ‘‘see the connection’’ between the four other robberies and the robbery

in the present case. It did state, however, that it would

reconsider its ruling if there was ‘‘further evidence

developed that [made the maps] relevant.’’

Second, the court conducted an in-camera inspection

of the police reports the defendant subpoenaed to

ensure that they were properly redacted pursuant to

Practice Book § 4-7 and General Statutes § 1-210. The

next day, the court provided copies of the reports to

the parties with the appropriate redactions. It redacted

the witness statements within the police reports that

referenced the otherrobberies because defense counsel

did not give a ‘‘further offer of proof with respect to

the connection that could or does exist between these

incidents and the matter here.’’

Third, the defendant attempted to introduce into evidence a portion of the autopsy report written by an

investigator that contained witness statements that referenced the other robberies. The court excluded it
because the medical examiner did not rely on it in

determining the victim’s cause of death and because it

constituted hearsay.

Finally, defense counsel sought to elicit testimony

on cross-examination from Vanessa Vazquez that she

saw one of the robberies take place at a certain time

and at a certain location because this testimony would

undermine the state’s timeline of events. The court sustained the state’s relevancy objection because ‘‘raising

issues of the other robberies, even though they might

be probative of the time that the individuals here were

picked up . . . is likely to cause confusion for the

jury,’’ and ‘‘absent some kind of physical connection

between this incident and the otherincidents, [the court

is] not going to allow that line of questioning.’’

On April 29, 2014, the defendant filed an objection

to the state’s motion in limine and gave an offer of

proof in support of his third party culpability defense.

The offer of proof included police incident reports for

the other assaults and robberies, certified court reports

relating to the cases involving the perpetrators responsible for the other robberies, and laboratory reports

involving tests on evidence recovered from the other

robberies. On April 30, 2014, after reviewing the defendant’s objection and hearing arguments by the prosecutor and the defense, the court granted the state’s motion

in limine. The court explained that ‘‘the defendant has

failed to offer any evidence directly linking a third party

to the commission of the robbery at issue’’ and that

‘‘[t]he fact that other robberies occurred on the same

date and in Waterbury and were within the central city

area raises, at most, a bare suspicion that another person may have committed the subject robbery.’’

On appeal, the defendant argues that evidence of the

four robberies should have been admitted because such

evidence was relevant in giving ‘‘the jury an alternative

theory as to who committed the crime.’’ He argues that

the ‘‘substantial’’ amount of evidence of the other robberies and the number of similarities between the other

robberies and the robbery in the present case ‘‘does

more than raise a bare suspicion that a third party

committed the offense; it establishes a direct connection to the instant case.’’3 When the court excluded this

evidence, he claims, it foreclosed his opportunity to

present his third party culpability defense, which

deprived him of his constitutional right to present a

defense.

The defendant opines that the court violated his constitutional rights. This matter is an evidentiary one,

however, and will be treated as such. See State v. Rosario, 99 Conn. App. 92, 106, 912 A.2d 1064 (‘‘[a]lthough

the defendant frames the [third party culpability] issue

on appeal as a constitutional violation, our ultimate

determination rests on evidentiary grounds’’), cert.

denied, 281 Conn. 925, 918 A.2d 276 (2007). ‘‘The admis-
sibility of evidence of third party culpability is governed

by the rules relating to relevancy. . . . No precise and

universal test of relevancy is furnished by the law, and

the question must be determined in each case according

to the teachings of reason and judicial experience. . . .

The trial court has wide discretion in its rulings on

evidence and its rulings will be reversed only if the

court has abused its discretion or an injustice appears

to have been done.’’(Internal quotation marks omitted.)

State v. Eagles, 74 Conn. App. 332, 337, 812 A.2d 124

(2002), cert. denied, 262 Conn. 953, 818 A.2d 781 (2003).

‘‘ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is material

to the determination of the proceeding more probable

or less probable than it would be without the evidence.’’

Conn.CodeEvid. § 4-1. ‘‘[R]elevant evidence is evidence

that has a logical tendency to aid the trierin the determination of an issue. . . . One fact is relevant to another

if in the common course of events the existence of one,

alone or with other facts, renders the existence of the

other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want

of open and visible connection between the evidentiary

and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof

of the latter.’’ (Internal quotation marks omitted.) State

v. West, 274 Conn. 605, 625, 877 A.2d 787, cert. denied,

546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

Specifically with regard to evidence of third party

culpability, our Supreme Court has ‘‘recognized consistently that a defendant has a right to introduce evidence

that indicates that someone other than the defendant

committed the crime with which the defendant has been

charged. . . . The defendant must, however, present

evidence that directly connects a third party to the

crime.’’ (Emphasis added; internal quotation marks

omitted.) State v. Smith, 280 Conn. 285, 303–304, 907

A.2d 73 (2006). ‘‘[E]vidence that establishes a direct

connection between a third party and the charged

offense is relevant to the central question before the

jury, namely, whether a reasonable doubt exists as to

whether the defendant committed the offense. Evidence that would raise only a bare suspicion that a

third party, rather than the defendant, committed the

charged offense would not be relevant to the jury’s

determination.’’ (Internal quotation marks omitted.)

State v. Baltas, 311 Conn. 786, 810–11, 91 A.3d 384

(2014). ‘‘It is not enough to [simply] show that another

had the motive to commit the crime . . . .’’ (Internal

quotation marks omitted.) State v. Hedge, 297 Conn.

621, 634–35, 1 A.3d 1051 (2010). Rather, evidence of

motive may be relevant to establishing a third party

culpability defense only ‘‘if other connecting evidence

exists.’’ State v. Eagles, supra, 74 Conn. App. 339.

We conclude that the court did not abuse its discre-
tion in granting the state’s motion in limine to preclude

the defendantfrom introducing evidence that supported

a third party culpability defense. The defendant failed

to offer any evidence that directly connected the perpetrators of the four robberies to the robbery in the present case. Instead, all of the evidence the defendant

sought to admit merely established that other robberies

took place at approximately the same time and in the

same vicinity as the robbery in the present case. Thus,

without any evidence that directly connects the perpetrators of the other robberies to the robbery in the

present case, evidence of similarities between the other

robberies and the robbery in the present case is not

sufficient to support a third party culpability defense.

See State v. Ferguson, 260 Conn. 339, 348, 355, 796

A.2d 1118 (2002) (photograph depicting third party who

looked similar to defendant and who was near crime

scene at approximately the same time that crime took

place was inadmissible without other evidence directly

connecting third party to crime); State v. Ortiz, 252

Conn. 533, 564–65, 747 A.2d 487 (2000) (while proffered

evidence may have provided third party with motive

and means to commit charged crime, defendant failed

to establish direct connection between third party and

charged crime). Admitting such evidence would prompt

the jury to engage in unwarranted speculation. The trial

court properly granted the state’s motion in limine.

II

The defendant’s second claim is that his convictions

of two counts of robbery in the first degree violate his

constitutional right not to be placed in double jeopardy

as guaranteed by the fifth and fourteenth amendments

to the United States constitution and article first, §§ 8

and 9, of the constitution of Connecticut. Specifically,

the defendant claims that § 53a-134 (a) (1) is a lesser

included offense of § 53a-134 (a) (3) because he could

not have caused serious injury to the victim without

first using a dangerous instrument. The state argues

that the charges are separate and distinct offenses

because ‘‘it is possible to commit an offense under

§ 53a-134 (a) (3) without first having committed an

offense under § 53a-134 (a)(1).’’ We agree with the state.

The defendant did not raise this claim at trial, and

it, therefore, is not preserved for review. He seeks

review of his unpreserved claim pursuant to State v.

Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).

‘‘[A] defendant can prevail on a claim of constitutional

error not preserved at trial only if all of the following

conditions are met: (1) the record is adequate to review

the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental

right; (3) the alleged constitutional violation . . .

exists and . . . deprived the defendant of a fair trial;

and (4) if subject to harmless error analysis, the state

has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In

the absence of any one of these conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote

omitted.) Id.; see also In re Yasiel R., 317 Conn. 773,

781, 120 A.3d 1118 (2015) (modifying third prong of

Golding by eliminating word ‘‘clearly’’ before words

‘‘exists’’ and ‘‘deprived’’). Because the record is adequate for review and the claim of a violation against

double jeopardy alleges a fundamental right, the defendant’s claim is reviewable under Golding. We conclude,

however, that the defendant’s claim fails because a constitutional violation does not exist.

The following additional facts are relevant to this

claim. Section 53a-134 provides in relevant part: ‘‘(a) A

person is guilty of robbery in the first degree when . . .

he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . or (3) uses or threatens the use

of a dangerous instrument . . . .’’

The substitute information filed by the state alleged in

relevant part: ‘‘Count Three: And the above said senior

assistant state’s attorney further accuses and charges

that the defendant said Michael Mark did commit the

crime of Robbery in the First Degree in violation of

. . . § 53a-134 (a) (1), and charges that, on or about

November 2, 2010, in the early morning hours, at or

near 424 Baldwin Street, in the City of Waterbury, Connecticut, the said Michael Mark, in the course of committing a robbery, or of immediate flight therefrom,

he or another participant in the crime caused serious

physical injury to any person who was not a participant

in the crime, to wit: Arnaldo Gonzalez.

‘‘Count Four: And the above said senior assistant

state’s attorney further accuses and charges that the

said Michael Mark did commit the crime of Robbery in

the First Degree in violation of . . . § 53a-134 (a) (3),

and charges that, on or about November 2, 2010, in the

early morning hours, at or near 424 Baldwin Street, in

the City of Waterbury, Connecticut, the said Michael

Mark, in the course of committing a robbery, orimmediate flight therefrom, he or another participant in the

crime used and threatened the use of a dangerous

instrument, to wit: a rock and/or a shod foot.’’

The jury found the defendant guilty on all counts,

including both counts of robbery in the first degree.

The court sentenced the defendant for his conviction

under § 53a-134 (a) (1) to twenty years imprisonment

and for his conviction under § 53a-134 (a) (3) to twenty

years imprisonment. The court sentenced the defendant

to forty-eight years imprisonment for the murder conviction and ordered the robbery convictions to run concurrently with the murder conviction.

On appeal, the defendant argues that ‘‘the [two robbery in the first degree] counts are one in the same and
conviction and punishment on both violated the double

jeopardy clause.’’ Because the autopsy report showed

that the victim died from blunt force trauma to his head,

it was impossible for the defendant to cause a serious

physical injury to the victim without first using a dangerous instrument. The defendant argues, therefore, that

his ‘‘conviction for robbery in the first degree, § 53a134 (a) (1) was a lesser included offense of the conviction for robbery in the first degree, § 53a-134 (a) (3).’’

Thus, the court should vacate the defendant’s conviction on the lesser included offense. We do not agree.

‘‘The standard of review to determine whether the

defendant’s constitutionalright against double jeopardy

was violated is de novo because it is a question of law.’’

(Internal quotation marks omitted.) State v. Guzman,

125 Conn. App. 307, 319, 7 A.3d 435 (2010), cert. denied,

300 Con. 902, 12 A.3d 573 (2011). ‘‘The fifth amendment

to the United States Constitution provides in relevant

part: No person shall . . . be subjected for the same

offense to be twice put in jeopardy of life or limb . . . .

The double jeopardy clause of the fifth amendment is

made applicable to the states through the due process

clause of the fourteenth amendment.’’ (Internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1,

5–6, 966 A.2d 712 (2009). ‘‘In the context of a single

trial, the double jeopardy analysis is a two part process.

. . . First, the charges must arise out of the same act

or transaction. Second, it must be determined whether

the charged crimes are the same offense.’’ (Citation

omitted; internal quotation marks omitted.) State v.

McColl, 74 Conn. App. 545, 567, 813 A.2d 107, cert.

denied, 262 Conn. 953, 818 A.2d 782 (2003).

With regard to the second step, ‘‘[t]raditionally we

have applied the [test set out in Blockburger v. United

States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306

(1932)] to determine whether two statutes criminalize

the same offense . . . . Under that test, where the

same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one,

is whether each provision requires proof of a fact which

the other does not. . . . This test is a technical one

and examines only the statutes, charging documents,

and bill of particulars as opposed to the evidence presented at trial. . . . Thus, [t]he issue, though essentially constitutional, becomes one of statutory

construction. . . . [I]f two offenses stand in the relationship of greater and lesser and included offense,

[however] [t]he greater offense is . . . by definition

the same for purposes of double jeopardy as any lesser

included offense included in it. . . . If it is possible to

commit the greater offense in the manner described

in the information without having first committed the

lesser offense, then the lesser is not an included

offense.’’ (Citation omitted; internal quotation marks

omitted.) State v. Underwood, 142 Conn. App. 666, 681–
82, 64 A.3d 1274, cert. denied, 310 Conn. 927, 78 A.3d

146 (2013).

‘‘Our analysis of double jeopardy claims does not

end, however, with a comparison of the offenses. The

Blockburger test is a rule of statutory construction, and

because it serves as a means of discerning [legislative]

purpose, the rule should not be controlling where . . .

there is a clear indication of contrary legislative intent.’’

(Internal quotation marks omitted.) State v. Perez, 78

Conn. App. 610, 641, 828 A.2d 626 (2003), cert. denied,

271 Conn. 901, 859 A.2d 565 (2004).

In the present case, the first prong of the double

jeopardy test is satisfied because the defendant’s conviction of two counts of robbery in the first degree

arose out of the same act or transaction: the defendant

robbed the victim and killed him with a rock on November 2, 2010. The defendant’s claim, however, does not

satisfy the second prong because under Blockburger,

the two charges constitute separate offenses in that

each provision requires proof of a fact which the other

does not.

To convict the defendant under § 53a-134 (a) (1), the

state was required to prove that the defendant actually

caused ‘‘serious physical injury’’ to the victim, who was

‘‘not a participant in the crime.’’ The state was not

required to prove thatthe injury was caused by a dangerous instrument. To convict the defendant under § 53a134 (a) (3), the state needed to prove that the defendant

‘‘used orthreatened the use of a dangerous instrument.’’

The state was not required to prove that the victim

actually suffered serious physical injury. Thus, each of

the counts in the information required that the state

prove an element of a crime that the other crime does

not include. Because each of the charged offenses

require proof of an element that the other does not,

we conclude that the defendant’s right against double

jeopardy for the same offense was not violated.

Furthermore, the defendant failed to meet his burden

of proof demonstrating a clear legislative intent that

contradicts the result of the Blockburger test. In support

of his argument, the defendant cites to State v. McColl,

supra, 74 Conn. App. 572, stating in his brief that ‘‘[s]ince

robbery is a crime against the person the legislature

did not intend multiple punishments for the single robbery of one victim.’’ Yet, this court has recognized that

‘‘the legislature has shown that it knows how to bar

multiple punishments expressly when it does not intend

such punishment’’; (internal quotation marks omitted)

State v. Underwood, supra, 142 Conn. App. 684; and

that ‘‘[§] 53a-134 contains no language indicating the

legislature’s intent to bar multiple punishments . . . .’’

Id.; see State v. Hill, 237 Conn. 81, 100, 675 A.2d 866

(1996) (when ‘‘each of the two charges requires proof

of a fact that the other does not, it may be presumed

that the legislature did not intend to prohibit multiple
punishments for the conduct underlying the two

charges’’). The defendant’s claim, therefore, fails, and

he cannot prevail on his unpreserved double jeopardy claim.

The judgment is affirmed.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 The jury also found the defendant guilty of one count of tampering with

evidence in violation of General Statutes (Rev. to 2010) § 53a-155 (a). During

sentencing, the trial court granted the defendant’s motion for judgment of

acquittal as to this count. The state appealed from the judgment of acquittal,

and this court reversed the trial court’s judgment. See State v. Mark, 170

Conn. App. 241, A.3d (2017).

2 The defendant also argued that evidence of the four robberies was relevant in discrediting the state’s timeline of the events because defense counsel

anticipated that Vanessa Vazquez, a state’s witness, would testify that she

saw one of the robberies take place at a time that made the state’s timeline

inconsistent with the time of the victim’s death.

3 The defendant also sets forth additional arguments that we deem to be

unpersuasive. He argues that ‘‘the state’s circumstantial case [which] relied

heavily on the credibility of its witnesses . . . increased the relevancy’’

of the proffered evidence. Without any evidence that establishes a direct

connection between the third party and the robbery in the present case,

however, any weaknesses in the state’s case do not render evidence of the

other robberies more relevant to prove ‘‘that others had both the motive

and opportunity to commit the crime in this case.’’ The defendant has failed

to cite to any case law that indicates otherwise.

In addition, the defendant argues that the trial court used an improper

standard in ruling on its evidentiary claims when it stated that the defendant

was required to show a ‘‘physical connection’’ between the other robberies

and the robbery in the present case. While the court did in fact incorrectly

state that the defense was required to show a ‘‘physical connection’’ between

the third party and the robbery in the present case, a review of the entire

record gives us no indication that the court improperly foreclosed the defendant from introducing evidence that directly connected the robberies to the

one in the present case. In its ruling on the state’s motion in limine, moreover,

the court properly stated that defense counsel failed to show a ‘‘direct

connection’’ between the proffered evidence and the robbery in the present case.