State v. Collins

919 A.2d 1087

100 Conn.App. 833

STATE of Connecticut v. Ricardo COLLINS.

No. 26511.

Appellate Court of Connecticut.

Argued October 27, 2006.

Decided May 1, 2007.

Richard W. Callahan, special public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the

brief, were Jonathan C. Benedict, state's attorney, and Howard S. Stein, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and ROGERS and PELLEGRINO, Js.

ROGERS, J.

The defendant, Ricardo Collins, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(3),¹ carrying a pistol or revolver without a permit in violation of General Statutes § 29-35(a)² and using a firearm in the commission of a class B felony in violation of General Statutes § 53-202k.³ He claims on appeal that the trial court improperly (1) instructed the jury on the element of causation in connection with the charge of assault in the first degree and (2) allowed the state to submit into evidence a photographic array of police mug shots. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of August 28, 2002, the defendant was walking near the intersection of Pembroke and Jane Streets in Bridgeport. The victim, Stephen Rose, was driving by that intersection in his employer's vehicle when he saw the defendant. The victim was acquainted with the defendant, who is a cousin of the victim's then wife. The victim wanted to speak with the defendant because he believed that the defendant recently had stolen and crashed a new car that the victim had purchased for his wife.

The victim stopped his vehicle, exited it and called to the defendant. The victim confronted the defendant about the stolen car, and the defendant denied involvement. Further conversation ensued, and the dispute escalated. The two men were standing several feet apart when the defendant pulled a gun from the waistband of his pants. The victim raised his hands in the air but did not retreat to his vehicle, and he called the defendant a "bitch." The defendant began firing his weapon into the pavement on either side of the victim, shooting four times. The bullets ricocheted, striking a nearby residence and the vehicle driven by the victim. Thereafter, the victim lunged at the defendant in an attempt to tackle and disarm him. While the two men briefly were physically engaged the defendant fired his weapon a fifth time. This gunshot entered the victim's elbow and lodged in his upper arm, causing serious injury.

The victim fell to his knee and clutched his wounded elbow. The defendant then struck the victim on the head with the butt of his weapon⁴ and walked away. Emergency personnel arrived and transported the victim to the hospital where he underwent surgery to remove the bullet from his arm and received stitches to repair a cut on his head.

While the victim was hospitalized, he was visited by the police. He identified the defendant as the shooter and chose a photograph of the defendant from a photographic array. A warrant was issued for the defendant's arrest. After eluding the police for approximately four months, the defendant voluntarily submitted to arrest. Subsequent to receiving a Miranda warning⁵ and signing a waiver of his rights, the defendant gave a statement in which he admitted shooting the victim, but characterized it as a defensive action taken in response to the victim's aggression.⁶

The defendant initially was charged in a three count information with assault in the first degree in violation of § 53a-59(a)(5),⁷ carrying a pistol or revolver without a permit in violation of § 29-35(a); see footnote 2; and using a firearm in the commission of a class B felony in violation of § 53-202k; see footnote 3. In a subsequent amended information, the defendant was charged additionally with assault in the first degree in violation of § 53a-59(a)(3). See footnote 1.

A jury trial was held on several days in October and November, 2004, after which the defendant was found guilty and sentenced as previously stated. This appeal followed. Additional facts will be provided where relevant to the claims raised.

I

The defendant claims first that the court improperly failed to charge the jury on the element of causation in connection with the charge of assault in the first degree. He refers to the lack of an instruction on probable cause and argues in particular that on the evidence presented, the court was obligated to give an instruction on the doctrine of intervening cause. We disagree.

The following additional procedural history is pertinent. At trial, the jury heard testimony from, inter alia, the victim, the defendant and two witnesses to the shooting. The witnesses, Anthony Brancato and Carlo Colonnello, were working on the third floor porch of a building near the scene of the events in question.

The victim testified that after the defendant fired the gunshots into the pavement, he lowered the gun, which the victim recognized as an opportunity to try and disarm the defendant. He stated that he tried to tackle the defendant, but was unsuccessful because at that point the defendant "hit" him on the arm with the gun. The victim indicated that he was shot while in the process of physically engaging the defendant. Brancato and Colonnello confirmed that the victim was shot when he and the defendant were embraced. Neither Brancato nor Colonnello could provide any detail as to what the victim and the defendant were doing with their hands while the two men struggled.

The defendant took the witness stand in his defense and, throughout his testimony, repeatedly indicated that his actions on August 28, 2002, amounted to self-defense. He testified that the victim was bigger and stronger than he, and that he knew the victim to be a violent person. The defendant stated that the victim was very angry and threatening, and that the victim made the defendant nervous and fearful that something bad was going to happen. According to the defendant, he drew his weapon because he saw the victim reaching for his waist, causing the defendant to believe that the victim was armed. The defendant testified that he was trying to protect himself.

On cross-examination, the defendant testified that he believed he was in danger of death or great physical harm at the hands of the victim. Like the previous witnesses, he stated that the victim was shot as the two men struggled and the victim tried to disarm the defendant. According to the defendant, when the victim tried to take the gun, "I shot one off and it hit him right there." In response to further questioning, the defendant characterized the victim's injury as being the victim's own fault: "He got [himself] shot. He basically— yeah, he shot [himself] . . . because if he— if he hadn't been in that struggle, trying to struggle and take this gun away from me and twisting and turning, he wouldn't [have gotten] shot because I was never shooting at him."

On redirect examination, the defendant's counsel asked him what he had meant when he testified that the victim had shot himself. In response, the defendant attempted to explain in detail what happened when he and the victim were physically engaged. In the course of this explanation, the defendant indicated that he squeezed the trigger of the gun because the victim, while attempting to get the gun, applied pressure to the defendant's hand.⁸

After evidence concluded, the court instructed the jury on each of the charged crimes and also on two lesser included offenses of assault in the third degree. See General Statutes § 53a-61(1) and (2). It also gave a lengthy instruction on self-defense as a justification for the various assault charges, as requested by the defendant. As to the charge of assault in the first degree in violation of § 53a-59(a)(3), in regard to the element of causation, the court instructed the jury that the state needed to show that the defendant's conduct "caused [the victim] to suffer a serious physical injury."⁹ Neither party requested a charge on proximate cause or the doctrine of intervening cause, and, accordingly, the court did not give one.¹⁰ Following the jury charge, the defendant did not object to the court's instructions on the assault charges as they were given. He also did not take issue with a printed summary of the elements of all of the charged offenses that was provided to the jury, which also listed the element of causation, as to each assault charge, without reference to proximate cause or intervening cause.¹¹

The defendant now claims that the court failed to instruct the jury properly on the assault charge of which he was convicted in regard to the element of causation. He argues that the court provided no instruction as to proximate cause and, more specifically, that his testimony on redirect examination raised the issue of whether the victim's injury was the result of an intervening cause such that a detailed charge on that doctrine also was warranted. Because his claim is unpreserved, the defendant requests that we review it pursuant to the rule of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),¹² or the plain error doctrine. See Practice Book § 60-5.¹³

The record affords an adequate basis for review, and the defendant raises a claim of constitutional magnitude. See State v. Coleman, 48 Conn.App. 260, 270, 709 A.2d 590 (1998) (court's failure to instruct adequately on essential element of crime implicates fairness of trial and may result in due process violation), aff'd, 251 Conn. 249, 741 A.2d 1 (1999), cert. denied, 529 U.S. 1061, 120 S.Ct. 1570, 146 L.Ed.2d 473 (2000). The defendant, however, has not demonstrated that a constitutional violation clearly exists and clearly deprived him of a fair trial. His claim therefore fails.

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