State v. Magaraci

198 Conn.App. 305

232 A.3d 1220

STATE of Connecticut

v.Anthony MAGARACI

AC 42264

Appellate Court of Connecticut.

Argued February 3, 2020

Officially released June 23, 2020

Norman A. Pattis, Bethany, for the appellant (defendant).

Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were Michael A. Gailor, state's attorney, and Eugene R. Calistro, Jr., former supervisory assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Keller and Flynn, Js.

FLYNN, J.

The defendant, Anthony Magaraci, appeals from the judgment of conviction, rendered following a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that (1) the state adduced insufficient evidence to support his conviction because it had failed to disprove beyond a reasonable doubt that he acted in self-defense, and (2) the court improperly instructed the jury on self-defense. We conclude that the evidence sufficed to permit the jury, as the arbiters of the credibility of witnesses, reasonably to conclude that the defendant was the original aggressor and that he had stabbed the victims even though he could have safely retreated.

We also conclude that the defendant waived any claim of instructional error. We, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Cheryl Bell invited her longtime friend, Tina Peraino, who was living in Florida, to visit and stay with her and her husband, Ryan Bell, over Memorial Day weekend, 2017. The defendant, who lived in West Haven and who was dating Peraino, accompanied Peraino. After meeting Peraino at the airport, the defendant and Peraino arrived at the Bells’ residence in the early morning of Friday, May 26, 2017. On Friday night, following dinner, the defendant, Peraino, and Ryan Bell went to the house of the Bells’ neighbor, Chris Abbatello, to socialize and to drink beer. Ryan Bell introduced Peraino to another guest, Justin Wyatt, and the two began conversing while the defendant was standing by Peraino. During the conversation, Wyatt made a derogatory comment about Peraino's job as a paralegal that made Peraino uncomfortable. After returning to the Bells’ residence, the defendant stated that Wyatt "needs a crack in the mouth." According to Ryan Bell, the next day the defendant appeared "bitter" and "agitated" about that conversation that had occurred the night before. The defendant referred to Wyatt using an insulting scatological term.

On Sunday, Abbatello hosted a picnic at a state park. Between forty and sixty people were in attendance, including the defendant, Peraino, and Wyatt.¹ Around 5:30 p.m., the defendant, Peraino, and Ryan Bell left the picnic and went to the house of another neighbor of the Bells, Paula Bourdon and Tim Bourdon. An after party ensued at the Bourdons’ house, which included socializing, drinking alcoholic beverages, and playing horseshoes. The defendant, Peraino, Ryan Bell, and Wyatt were drinking beer. Cheryl Bell was the only one of the group who was not drinking alcohol.

The defendant, who was "quite upset," said to Paula Bourdon that he "could handle himself" and displayed a knife that had been in his pocket. He also stated to Paula Bourdon that "he knew Hells Angels and ... was not the kind of person to be messed with." Around 8 p.m., Wyatt, who was holding a beer bottle in his right hand, turned around and, upon seeing the defendant, switched the beer bottle to his left hand and extended his right hand. The defendant did not shake Wyatt's hand, yelled that Wyatt had disrespected him, and shouted several times for Wyatt to go for a walk with him. Wyatt yelled back "absolutely not." Cheryl Bell, who had been standing nearby, shouted to Ryan Bell, who was playing horseshoes, to "come over." Ryan Bell then positioned himself in between the defendant and Wyatt. The defendant became "very upset," lunged at Wyatt, and the two began "to swing at each other." Ryan Bell "grabbed" Wyatt, "pulled him back," and felt "a graze." Another guest, John Surprenant, stopped playing horseshoes and went over to see if he could help stop the altercation. After the altercation, the defendant stated, "that will teach you," and placed the folding knife in his pocket.

After a few moments, Wyatt felt a "hot coffee" like sensation, and upon lifting his sweatshirt, noticed "blood gushing" from his abdomen. He began to have trouble breathing. Ryan Bell also sustained a stab wound. Tyler Peska, who was also at the Bourdons’ gathering, called 911. Both Wyatt and Ryan Bell were transported to a hospital for treatment. Wyatt had a four centimeter by two centimeter stab wound to his abdomen that caused an apical pneumothorax, or air outside the apex of his lung. He was admitted to the hospital for monitoring and released the following day. Ryan Bell had an eight centimeter stab wound on his left abdomen that did not penetrate "the strength layers of the abdomen" and was discharged after receiving stitches.

Corporal Bryan Pellegrini, a member of the Clinton Police Department and the lead investigator on the case, responded to the scene, and he and other Clinton officers took statements from witnesses after the stabbings. He did not take statements from some individuals because they were too intoxicated. The police recovered the broken neck of a beer bottle approximately fifty feet from where the incident had taken place. Forensic testing revealed that the DNA on the mouth of the beer bottle matched Wyatt's DNA profile. Pellegrini went to the hospital, noticed that Wyatt was "still making sense," and took Wyatt's statement while he was awaiting treatment. According to blood tests taken at the hospital, Wyatt's blood alcohol content was 0.167 percent and Ryan Bell's blood alcohol content was 0.07 percent.²

After the altercation, the defendant and Peraino walked quickly toward the Bells’ house and packed their belongings. On their way to a restaurant near Bradley International Airport, the defendant threw the knife out the car window. As he was leaving the restaurant, the defendant was arrested. Police officers did not notice any visible injuries to the defendant's head or face, but noticed a cut on the defendant's finger that he could not explain.

At trial, the defendant conceded that he had stabbed Wyatt and Ryan Bell, but contended that he did so in self-defense. The defendant testified to the following version of events regarding the altercation at the Bourdons’ house. While he was conversing with Peraino and Cheryl Bell, Wyatt approached him carrying an empty beer bottle in his right hand. Wyatt switched the bottle to his left hand and asked if he wanted to shake hands. The defendant responded that if Wyatt apologized for his "rude and disrespectful behavior" then he would "be glad" to shake Wyatt's hand. Wyatt responded with an obscenity and began "posturing" in a way that made the defendant think that Wyatt was trying to "intimidate" and "terrorize" him with the beer bottle. He did not walk away because he thought that Wyatt would hit him on the head with the beer bottle if he turned his back. He told Wyatt, "please don't come at me with that beer bottle, if you do, you're gonna force me to defend myself with what I have in my pocket." Cheryl Bell yelled at Wyatt to "leave him alone," and called out to Ryan Bell. Then, "all of a sudden," Cheryl Bell was out of the way. The defendant "waited [until Wyatt] raised the bottle before [he] pulled the knife out of [his] pocket. And then, when [Wyatt] lunged forward with ... the beer bottle, [he] went forward with the knife." The beer bottle "glanced off" the side of his head and Ryan Bell intercepted the path of the knife, apparently getting cut in the process. Wyatt grabbed him around the throat and the defendant "thrust again," stabbing Wyatt. On cross-examination, the defendant stated that he "could have walked away," but he did not.

Following a jury trial, the defendant was convicted of two counts of assault in the first degree. The court imposed a total effective sentence of twenty years of incarceration, suspended after nine years, with five years of probation. This appeal followed.

I

The defendant first claims that the state adduced insufficient evidence to prove beyond a reasonable doubt that he did not act in self-defense. We disagree.

The defendant preserved this claim by moving, at the close of the state's case, for a judgment of acquittal on the basis of insufficient evidence. Regardless of preservation, we review insufficiency claims because "any defendant who is found guilty on the basis of insufficient evidence has been deprived of a constitutional right and is entitled to review whether or not the claim was preserved at trial." State v. Pommer , 110 Conn. App. 608, 612, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008), citing Jackson v. Virginia , 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "In reviewing a sufficiency of the evidence claim, we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty." (Internal quotation marks omitted.) State v. Merriam , 264 Conn. 617, 628–29, 835 A.2d 895 (2003).

The jury was given evidence of two conflicting versions of events. In one, the defendant first lunged at Wyatt with a knife. In the other, the defendant was hit over the head with a beer bottle and defended himself with a knife from further injury....