State v. Osimanti

6 A.3d 790

299 Conn. 1

STATE of Connecticut

v.Jason OSIMANTI.

No. 18311.

Supreme Court of Connecticut.

Argued Feb. 22, 2010.

Decided Nov. 9, 2010.

Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.^*

NORCOTT, J.

The defendant, Jason Osimanti, appeals, upon our grant of his petition for certification,¹ from the judgment of the Appellate Court affirming his judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(1),² in connection with the death of the victim, John Barnum, following a street fight. State v. Osimanti, 111 Conn.App. 700, 701, 962 A.2d 129 (2008). The defendant claims that the Appellate Court improperly upheld the trial court's: (1) ruling precluding the admission of certain evidence concerning the victim's history of engaging in domestic violence against his former girlfriend while intoxicated, including his conviction for violation of a protective order under General Statutes § 53a-223; ³ (2) jury instructions that conflated the issuesof initial aggression and retreat with respect to the defendant's claim of self-defense; and (3) insufficient inquiry into potential bias on thepart of a juror who had personal relationships with members of the Latin Kings, the gang to which the victim had belonged. We disagree and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court aptly sets forth the following facts, which the jury reasonably could have found, and procedural history: "On July 14, 2005, the defendant was at Custom Creations, an auto body shop owned by Orlando Rodriguez, located at 68 Elizabeth Street, Bridgeport. Rodriguez' apartment, located at 39 Elizabeth Street, was across the street. Adjacent to the shop was an empty lot. The defendant, a painter, had just returned from Rodriguez' apartment, where the defendant was monitoring the progress of two painters who were working for him. While at the shop, the defendant had been drinking alcohol, but he did not appear to be intoxicated. At one point, Rodriguez asked the defendant to pick up ... the victim, and to bring him to the shop. Rodriguez had been friendly with the defendant and the victim for 'a couple of years.'

"When the defendant returned to the shop with the victim, both men appeared to be angry, and they were arguing. The victim accused the defendant of driving erratically on the way back to the shop. The argument between the defendant and the victim increased to the point that the victim threw things at the defendant and tried to fight him. Concerned that the argument was escalating, Rodriguez stepped between the defendant and the victim and told them to take their argument outside.

"After the defendant and the victim went into the empty lot adjacent to the shop, their argument turned physical. At trial, Rodriguez could not recall who threw the first punch. Cynthia Morales, Rodriguez' live in girlfriend,0054

FN4. "On the date of the incident, Morales and Rodriguez lived together. They were no longer involved or living together at the time of the trial." State v. Osimanti, supra, 111 Conn.App. at 702 n. 1, 962 A.2d 129.

"At this point, the defendant went to his car, from which he retrieved a four inch long painter's hook. This was the first time that Rodriguez had seen either man with a weapon. Upon seeing the defendant with the hook, the victim took a mallet ⁵ from the shop and returned to the empty lot where he used the mallet to strike the defendant in the back. Rodriguez took the mallet from the victim and pushed the victim back inside his shop, but the victim immediately exited the shop through a side door and returned to the lot where a second physical altercation ensued between the victim and the defendant. At this point, Rodriguez separated the two men, told the defendant to go home and began walking the victim toward the apartmenthe shared with Morales. As Rodriguez was pushing the victim along the street toward his apartment, the victim was screaming at the defendant and trying to break free from Rodriguez' grasp while the defendant, in turn, was antagonizing the victim to fight with him. Morales, who had since returned to the apartment, could see Rodriguez and the victim approaching. Once Rodriguez and the victim had reached the apartment driveway,Morales came downstairs, where she and Rodriguez calmed the victim down. At that point, the victim was no longer arguing with the defendant.

"George Castellini, who lived across the street from Custom Creations, saw the defendant approach Rodriguez and the victim as they were walking away from the lot. He heard Rodriguez tell the defendant to leave and the victim to go into his apartment. The victim, however, refused to go into the apartment because Rodriguez' children were inside and the victim had to 'put a stop to [the defendant].'

"As the defendant neared, Rodriguez observed that he was carrying a Sheetrock knife.⁶ The victim, in turn, did not have any weapons. Castellini heard Rodriguez say, 'Don't you dare come over here,' and he heard the victim say, 'What are you going to do with that knife?' The defendant stopped following Rodriguez and the victim after Rodriguez shouted for him to stay away. At this point, the defendant was approximately forty-five feet from his vehicle and sixty to seventy feet from the victim and Rodriguez. The victim then walked back into the road and toward the defendant where the two men continued arguing. The victim charged the defendant, and the two men began wrestling in the street near the empty lot. The defendant then swung the Sheetrock knife at the victim to keep him at bay. Rodriguez returned to the lot and separated the men again, both men moving to opposite sides of the street. As the defendant bent down to pick up the knife that had fallen to the ground, Rodriguez charged him, knocking the defendant to the ground. While Rodriguez had the defendant pinned to the ground, the victim began kicking the defendant. The defendant claimed that as Rodriguez got off of him and separated him and the victim,the defendant grabbed the Sheetrock knife and tried to stand up because he did not want to be struck again and he feared that if he did not get up, Rodriguez and the victim would kill him. As the defendant was attempting to regain his footing, he and the victim resumed fighting. As the defendant arose, he swung the Sheetrock knife at the victim, stabbing him twice in the chest. Bleeding, the victim fell to the ground and died soon thereafter.⁷

"Immediately after the stabbing, the defendant walked to his car and left, taking the Sheetrock knife with him. He was subsequently arrested at his home and taken to the police station, where he admitted that he stabbed the victim but asserted that he acted in self-defense. The defendant was charged with one count of murder in violation of General Statutes § 53a-54a (a). On September 18, 2006, after a jury trial, the defendant was found not guilty of murder but guilty of the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a)(1). On October 23, 2006, the defendant was sentenced to the custody of the commissionerof correction for a period of twelve years, and upon completion of this sentence, to a term of five years special parole." Id., at 701-705, 962 A.2d 129.

The defendant appealed from the judgment of conviction to the Appellate Court, claiming, inter alia, that: (1) the trial court's evidentiary rulings excluding testimony about the victim's history of engaging in domestic violence while intoxicated, as well as his conviction for violating a protective order, were an abuse of discretion and a violation of his federal and state constitutional rights to present a defense; id., at 705-706, 962 A.2d 129; (2) "the trial court improperly instructed the jury regarding self-defense ... [by] confus[ing] an initial aggressor'sobligation to withdraw with the duty of one using deadly force to retreat if such retreat is available and known to be completely safe"; id., at 709, 962 A.2d 129; and (3) the trial court "failed to inquire adequately into juror bias when, after testimony that the victim was a Latin King, a sitting juror alerted the court that a family member and some of the juror's friends were Latin Kings." ⁸ Id., at 712-13, 962 A.2d 129. The Appellate Court disagreed with these claims, concluding that: (1) the trial court did not abuse its discretion by excluding the domestic violence evidence because it already had admitted "a wealth of testimony regarding the victim's propensity for violence"; id., at 709, 962 A.2d 129; including numerous criminal convictions, his gang membership and the defendant's testimony about the altercation; id., at 707-708, 962 A.2d 129; (2) the jury instruction was a "minor mistake" that did not mislead the jury; id., at 712, 962 A.2d 129; and (3) the trial court's inquiry into potential juror bias was "sufficient," as there was nothing in the juror's answers that would require the trial court to inquire further or find not credible his repeated statements that he could be fair and impartial. Id., at 715-16, 962 A.2d 129. Accordingly, the Appellate Court affirmed the judgment of conviction. Id., at 717, 962 A.2d 129. This certified appeal followed. See footnote 1 of this opinion.

On appeal, the defendant claims that the Appellate Court improperly upheld the trial court's: (1) preclusion of evidence regarding the victim's history of engaging in domestic violence against his former girlfriend while intoxicated, including his conviction for violating a protective order; (2) self-defense jury instructions that improperly...