State v. Cruz

75 Conn. App. 500

816 A.2d 683

STATE OF CONNECTICUT v. ROLANDO CRUZ.

(AC 22575).

Appellate Court of Connecticut.

Argued October 21, 2002.

Officially released March 11, 2003.

Foti, Mihalakos and Dranginis, Js. Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David J. Strollo, senior assistant state's attorney, for the appellee (state).

Opinion

DRANGINIS, J.

The defendant, Rolando Cruz, 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)(1).¹ On appeal, the defendant claims (1) that the trial court improperly instructed the jury on the issue of self-defense and (2) that the state failed to adduce evidence sufficient to disprove that he was acting in self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found that following facts. On a Thursday evening in late July, 1999, the defendant went to Gecko's, a nightclub in New Haven. While at Gecko's, the defendant was having a conversation with a woman, Adrienne DeLeon. At some point during their conversation, the defendant and DeLeon were approached by DeLeon's then boyfriend, Joseph Martinez. Martinez, who believed that the defendant was flirting with DeLeon, threw a drink in her face and began screaming at DeLeon and at the defendant. Martinez and the defendant engaged in a verbal dispute, but no physical altercation occurred between the two men that night.

On the following Sunday night, August 1, 1999, the defendant was at Humphrey's restaurant in New Haven. Martinez also was at Humphrey's that night with his friend, Peter Gaudioso. After seeing the defendant from across the room, Martinez pointed out the defendant to Gaudioso and informed him of the verbal altercation that he had had with the defendant only a few nights before. Gaudioso suggested that he and Martinez leave the restaurant to avoid another altercation. Shortly thereafter, Gaudioso and Martinez exited the front door of the restaurant where they encountered the defendant, who was standing outside talking on his cellular telephone. Martinez approached the defendant because he thought he heard the defendant call him a derogatory name. The two men began to argue. The defendant told Martinez: "You don't want to do this, you will regret it for the rest of your life." Shortly thereafter, punches began to be thrown by both men. The fight spilled over into the parking lot of the restaurant, between two parked cars. At some point during the fight, the defendant took a knife out of his pocket, stabbed Martinez once in the stomach and then ran away. The fight had lasted only a matter of minutes. At that time, the defendant was twenty-five years old, six feet, one inch tall and weighed 190 pounds. Martinez was twenty years old, six feet, two inches tall and weighed approximately 240 pounds.

Martinez was taken to a hospital by ambulance where doctors performed emergency surgery to repair a stab wound to his abdominal area. On the surface, his wound measured about four inches wide and was approximately six to eight inches deep. The wound, which exposed Martinez's intestines, could have been fatal had it not been treated immediately.

The defendant subsequently was arrested and charged with one count of assault in the first degree in violation of § 53a-59 (a)(1)² and, in the alternative, one count of assault in the first degree in violation of § 53a-59 (a)(3).³ Months after his arrest, during the spring of 2001, the defendant surrendered a knife, which he claimed was the knife he had used to stab Martinez, to an investigator who was employed by the defendant's attorney. That knife, which had a two inch blade, eventually was turned over to the police and was introduced at trial. The state, however, disputed that the knife with the two inch blade was the knife the defendant had used to stab Martinez. During its case-in-chief, the state offered the testimony of Edward T. McDonough, deputy chief medical examiner for the state of Connecticut. McDonough testified that Martinez's injuries were consistent with a stabbing by a knife or other sharp object that would have to have been, at a minimum, about six inches in length. During cross-examination, the defendant admitted that he had, in the past, carried knives with much larger blades.

At trial, the defendant claimed that he was acting in self-defense when he stabbed Martinez and, therefore, his use of force was justified. See General Statutes § 53a-19.⁴ The defendant testified that he stabbed the victim, but that he believed that his use of force was necessary to defend himself from the victim's attack. During its deliberations, the jury asked to hear the legal definition of self-defense again. The jury returned a guilty verdict on the charge of assault in the first degree in violation of § 53a-59 (a)(1) and a verdict of not guilty on the charge of assault in the first degree in violation of § 53a-59 (a) (3). After the jury's verdict, defense counsel filed a motion for a judgment of acquittal in which he claimed that the evidence adduced at trial established that the defendant had acted in self-defense and that the state had failed to adduce evidence sufficient to disprove self-defense. In denying the defendant's motion, the court determined that if the jury had accepted the testimony of Martinez, the defendant's self-defense claim was disproved beyond a reasonable doubt. Additional facts will be set forth where necessary.

I

The defendant claims that the court improperly instructed the jury on the issue of self-defense. He advances three arguments in support of his claim. He argues that the court's instruction on self-defense improperly (1) limited the jury's inquiry to determining whether he was justified in using deadly physical force, (2) advised the jury as to how to evaluate his use of force and (3) advised the jury that its duty was to determine whether the victim was about to use force or was inflicting injury against the defendant prior to determining whether the defendant reasonably believed the victim was doing so. The defendant asserts that the court's improper instructions on self-defense deprived him of his constitutionally guaranteed rights to present a defense, to due process and to a fair trial under the sixth and fourteenth amendments to the constitution of the United States.⁵ At the outset, we note that the defendant did not properly preserve the claims of improper jury instruction that he now raises on appeal. Moreover, the defendant has conceded in his brief that he induced two of the alleged errors by requesting the very instructions that he now claims were constitutionally infirm. He maintains that all three of his claims are, nonetheless, reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),⁶ or, in the alternative, under the plain error doctrine. See Practice Book § 60-5.⁷ We agree that the defendant's claims, including those that are the product of induced error, are reviewable under Golding.⁸

Although it is the general rule that a party who induces an error cannot be heard to complain about that error, unpreserved claims of constitutional magnitude, even when induced by the appellant, may be reviewed pursuant to State v. Golding, supra, 213 Conn. 239-40. State v. Whipper, 258 Conn. 229, 295 n.31, 780 A.2d 53 (2001). Thus, as a threshold matter, we must determine whether the defendant has raised claims that meet the Golding criteria.

In the present case, we conclude that the defendant's unpreserved claims, alleging that the court improperly charged on the issue of self-defense, are reviewable under the first two Golding criteria because the record is adequate for review and because the right to establish a defense is constitutional in nature. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

We must now determine whether the defendant has satisfied the second two Golding criteria by demonstrating that there was constitutional error requiring a new trial. "We preface our analysis of the defendant's individual claims by once again stating, albeit briefly, the fundamental precepts that govern our review of these claims. An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. . . . In either instance, [t]he standard of review to be applied to the defendant's constitutional claim is whether it is reasonably possible that the jury was misled. . . . In determining whether it was indeed reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Internal quotation marks omitted.) State v. Peters, 40 Conn. App. 805, 809, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677 A.2d 949 (1996). With those principles in mind, we turn to the defendant's individual jury instruction claims.

A

The defendant first argues that the court's charge on self-defense improperly limited the jury's self-defense inquiry to determining whether he was justified in using deadly force and thereby removed from the jury's consideration the option of determining whether he was justified in using nondeadly force. Specifically, he argues that in instructing the jury that this case involved deadly...