State v. Gomes

337 Conn. 826

256 A.3d 131

STATE of Connecticut

v.Wagner GOMES

SC 20407

Supreme Court of Connecticut.

Argued September 15, 2020

Officially released January 26, 2021^*

Lisa J. Steele, assigned counsel, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Cornelius Kelly, acting state's attorney, and Margaret E. Kelley, state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Ecker and Keller, Js.

KELLER, J.

The defendant, Wagner Gomes, appeals¹ from the judgment of the Appellate Court affirming his conviction, rendered following a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The defendant claims that the Appellate Court incorrectly determined that the trial court's investigative inadequacy jury instruction did not mislead the jury or otherwise deprive him of his right to present an investigative inadequacy defense. We agree and, accordingly, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "In the early morning hours of September 12, 2015, the victim, Edilene Brandao, along with several other persons, including Raphael Morais, attended a birthday party at the Brazilian Sports Club (club), located at 29 Federal Street in Bridgeport. Shortly after arriving, the victim had one drink, and Morais went to the bar to get a drink for himself. Morais confronted the defendant's girlfriend, who was at the bar, pushed her, and made offensive remarks to her. A fight then broke out inside the club between the defendant and Morais. Security guards intervened and separated them. The defendant was taken outside, and Morais was taken to the [club's] patio.

"The victim went to the patio with Morais. There was a fence at the back of the patio, and the victim had her back to that fence. The victim proceeded to ask Morais why he was fighting, and Morais responded, ‘it's him.’ The victim then turned to face the fence and saw the defendant standing approximately two feet away from her, on the outside of the fence, with a bottle in his hand. The defendant then struck the victim on the fore-head with the bottle.

"The club's owner, Demetrio Ayala, Jr., knew the defendant because he visited the club several times per month. Ayala observed the [earlier] fight between the defendant and another person known to him as ‘Rafael.’² [Ayala ordered the club's security guards to separate the defendant and Morais, and to take the defendant outside and Morais to the patio. Soon thereafter] Ayala, after hearing shouting on the patio, went to investigate and discovered that the victim was bleeding. Ayala then went out the front door of the club in order to try to find the defendant, [who had just been taken outside of the club by a security guard, to see if he was near enough to the outside of the fence surrounding the patio to be involved in the victim's injuries. Ayala observed the defendant] in the parking lot running away from the club. Ayala subsequently called the police.

"Before the police arrived, the victim was transported to St. Vincent's Medical Center in Bridgeport by private car in the company of several persons who were in the club that night. She arrived at the hospital at about 12:30 a.m., where she was seen by a triage nurse and received treatment for the bleeding and pain. Several hours later, the victim was also treated by a plastic surgeon and then released.³

"John Topolski and Matthew Goncalves, officers with the Bridgeport Police Department, were among the first police officers to arrive at the club shortly after 1:30 a.m. Upon their arrival, they observed that ‘[the scene] was a mess’ and that ‘there [were] maybe [100] people scattered amongst the streets.’ Officer Topolski briefly spoke with Morais, who had, he observed, a swollen face, one eye that was swollen shut, profuse facial bleeding, clothes covered in blood, and an apparently dislocated shoulder.⁴ Once the scene was secure, the officers departed for the hospital, intending to question Morais, who also had been taken to the hospital before the police completed their initial on-site investigation. While the officers were en route to the hospital, they received a radio dispatch informing them that a woman, who also had been injured at the club, was already at the hospital.

"When the officers arrived at the hospital, Officer Topolski went in search of the injured woman, and Officer Goncalves went in search of Morais. Although Officer Goncalves located Morais, he was unable to speak with Morais because his wounds were being treated, and he was being prepared for surgery. Officer Topolski located the victim in the waiting area of the hospital's emergency department and identified her as the woman who had been injured at the club. The victim was in the company of approximately five other individuals. Officer Topolski observed that the victim was crying and visibly shaken. She had blood covering her face and was holding gauze to her head. Despite her physical and emotional condition, the victim was coherent enough to provide information to Officer Topolski. In her verbal statement to Officer Topolski, the victim denied that Morais may have been the aggressor in some type of altercation with her. Officer Topolski, while he was at the hospital, also obtained the name of the defendant, but it was not clear from whom he received that information.⁵

"On October 2, 2015, the victim went to the Bridgeport police station with her attorney, where she was interviewed by Detective Paul Ortiz in the presence of Sergeant Gilbert Valentine about the events that occurred on September 12, 2015. Detective Ortiz reviewed Officer Topolski's report of the events. Through this report, Detective Ortiz learned that the defendant might be a suspect. Detective Ortiz prepared a photographic array that included a photograph of the defendant, which he showed to the victim. When the victim viewed the photograph of the defendant, she became emotional and started to cry. She examined the entire array and then selected the defendant's photograph, on which she wrote that she was ‘100 percent’ confident that he was the person who had attacked her. The defendant was subsequently arrested.

"At trial, the defendant sought to persuade the jury that reasonable doubt existed regarding the victim's identification of the defendant as the person who assaulted her. The main defense advanced by the defendant was that the police had conducted an inadequate investigation of the incident.

"During closing arguments, defense counsel argued that ‘this case screams reasonable doubt. ... [T]he police completely failed in this case, and they completely failed [the victim]. They didn't go back to that scene that night. They didn't identify the crime scene. They didn't take any photos so that you, ladies and gentlemen, could see how the scene looked that night. How the lighting looked. They never tried to get any surveillance video. ... They didn't confirm what happened.’ Defense counsel also argued that the police ‘spent ninety minutes on this investigation,’ and that the case ‘boil[ed] down to one witness and what she saw in a split second, and she may very well believe that [the defendant] did this to her. But the police did nothing to confirm as to what Officer Goncalves said they needed to do.’⁶ "In connection with his defense of inadequate police investigation, the defendant had filed a written request to charge the jury, which provided in relevant part: ‘[1] You have heard some arguments that the police investigation was inadequate and biased. [2] The issue for you to decide is not the thoroughness of the investigation or the competence of the police. [3] However, you may consider evidence of the police investigation as it might relate to any weaknesses in the state's case. [4] Again, the only issue you have to determine is whether the state, in light of all the evidence before you, has proved beyond a reasonable doubt that the defendant is guilty of the counts with which he is charged.’

"On October 27, 2018, the court held a charge conference. In discussing the final charge, the court told defense counsel that it would be charging on the adequacy of the police investigation, in a form that was somewhat similar to the defendant's requested instruction, but that ‘[its instruction] may be a little bit different.’

"The court instructed the jury in relevant part: ‘You have heard some arguments that the police investigation was inadequate and that the police involved in the case were incompetent or biased. The issue for you to decide is not the thoroughness of the investigation or the competence of the police. The only issue you have to determine is whether the state, in light of all the evidence before you has proved beyond a reasonable doubt that the defendant is guilty of the counts with which he was charged.’ Defense counsel objected to the court's omission of point three of his requested instruction.

"The jury subsequently found the defendant guilty of assault in the second degree .... The court rendered judgment in accordance with the jury's verdict and imposed a total effective sentence of five years of imprisonment, execution suspended after two years, followed by three years of probation." (Footnote added; footnotes in original; footnotes omitted.) State v. Gomes , 193 Conn. App. 79, 81–86, 218 A.3d 1063 (2019). The defendant appealed to the Appellate Court, claiming that "the jury instructions, as given, deprived him of his right to present a defense of investigative inadequacy. Specifically, the defendant argue[d] that the [trial] court erred in failing to include point three of his requested jury charge, which [provides]: ‘However, you may consider evidence of the police investigation as it might relate to any weaknesses in the state's case.’ The defendant argue[d] that without the inclusion...