State v. Pereira

805 A.2d 787

72 Conn.App. 545

STATE of Connecticut v. Ricardo PEREIRA.

No. 21857.

Appellate Court of Connecticut.

Argued November 27, 2001.

Decided September 24, 2002.

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FOTI, MIHALAKOS and FLYNN, Js.

James B. Streeto, deputy assistant public defender, for the appellant (defendant).

Robert M. Spector, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brian Preleski, assistant state's attorney, for the appellee (state).

FLYNN, J.

The defendant, Ricardo Pereira, appeals from a judgment of conviction after a jury trial for murder and kidnapping in the first degree in violation of General Statutes §§ 53a-54a (a)¹ and 53a-92 (a)(2) (A)² respectively. On appeal, the defendant claims (1) that the state committed prosecutorial misconduct during cross-examination and in closing argument, (2) that the trial court improperly instructed the jury on the element of intent and the concept of reasonable doubt, (3) that the court improperly denied his motion to suppress his written statement and (4) that the court improperly applied its belief that the defendant had committed perjury as a factor in sentencing. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the incident giving rise to his convictions, the defendant was distraught because his former girlfriend had terminated their relationship. The defendant "still wanted to be with [her, but] she didn't want anything to do with [him]." In the wake of this loss, the defendant spent a great deal of his free time at William MacLellan's small basement apartment in Waterbury. Through MacLellan, the defendant met the victim, Lisa Orgnon, in October, 1997. Over the course of approximately one month, the defendant and the victim socialized at drinking establishments in the Waterbury area "a couple of times." The victim, MacLellan and the defendant planned to spend the evening of November 18, 1997, together.

At roughly 9 p.m. on the evening of the incident, the victim, MacLellan, and the defendant walked from MacLellan's apartment to "Champ's Cafe." They shared four pitchers of beer, "did some shots of Goldschlager" and played billiards until the staff closed the establishment for the evening at roughly 11:30 p.m. The three then returned on foot to MacLellan's apartment, where they conversed briefly and decided to go to another drinking establishment, "MacFairlawn's Tavern," before retiring for the evening. The victim agreed to drive them to MacFairlawn's in her white Pontiac Sunbird.

At MacFairlawn's, MacLellan and the victim continued to play billiards and the defendant ordered another pitcher of Heineken beer and "stayed at the bar and talked to the bartender." The three left the bar together at closing time and drove back to MacLellan's apartment. At this point, MacLellan decided to turn in for the evening. The defendant asked the victim to accompany him to a movie theater that he used to frequent near his former girlfriend's Southington home. The defendant "knew [the theater] was closed" before he suggested the excursion. The victim drove the defendant to the theater at 2 a.m., at which time she learned that the theater was closed while the defendant feigned surprise.

The defendant then told the victim to "drive around" and, keeping their destination a secret, directed her to an area of Southington which he knew to be his former girlfriend's neighborhood. He did not inform the victim that his former girlfriend lived in the area. Moments later, they were driving down the defendant's former girlfriend's residential street. As they passed by her house, the defendant reached across the victim's seat and hit her steering wheel as she was trying to drive, blasting the vehicle's horn in order to disturb his exgirlfriend's household after 2 a.m. The defendant then ordered the victim to stop the vehicle on an adjoining street, Autran Avenue.

Although the reasons are unclear,³ the defendant suddenly "got real mad" at some point after the vehicle halted. In the defendant's own words: "You know, I just — I just lost control. And I just began, I began to swing at her." "I don't know why but I started punching Lisa in her face and head even though she had done nothing wrong. I punched her four or five times." "She just tried to get away." The defendant punched the victim with such force that days later, he had abrasions on his knuckles, which he explained to a nurse were "from punching." As the victim attempted to "get away" from the defendant's unprovoked assault, the defendant grabbed her by the neck and began to strangle her. The defendant choked the victim, crushing her voice box and hemorrhaging the strap muscles in her neck. The defendant strangled the victim with such force that the whites of her eyes turned blood red from petechial hemorrhaging of the capillaries in her conjunctiva. The victim buried her fingernails into the defendant. Forensic analysis later revealed that nine of her ten fingernails had drawn blood in the melee. The defendant sustained scratches on his face and neck, and all over his back and shoulders. Stymied by the victim's effective counter-attack, the defendant lost his grip on the victim's neck. She opened the door and began to spill out, head first, onto the street. The defendant clutched and swiped at her in a futile effort to regain dominance, but the victim kicked at him, checking his renewed assault. The victim broke free and sprinted down the road, away from defendant. The defendant jumped into the driver's seat and gunned the engine, aiming the vehicle at the victim.

The defendant slammed the car into the victim. The front bumper shattered her right leg at a point nine inches from her heel. Expert forensic evidence introduced at trial indicated that this was "a fairly typical pedestrian type [of] injury, where the bumper would strike the lower leg...." The vehicle's right front wheel ran over the victim and her body smashed into the undercarriage. The defendant continued to run over the victim and felt the rear transaxle vault over her body. The defendant later stated that he "wasn't sure" whether he put the car in reverse to run her over again. The street was littered with blood in a long trail resulting from how he, in his own words, "dragged her up the road."

In addition to the injuries from the previous punching and strangling, the vehicle mangled and crushed the victim's body. Evidence introduced at trial established that the victim sustained multiple blunt force trauma to her head and face, including a large and deep Lshaped laceration to her entire right cheek, and another laceration above her right eye. Her nose was scored and abraded, her lips and right forehead were bruised, and the entire left side of her face, from her chin to her ear, was scraped deep purple. Two major lacerations split the back of the victim's head, straight through to her skull. A mass of blood pooled at the back of the victim's head, between her skull and scalp. Inside, a film of blood covered the victim's brain, which had suffered heavy bruising. In addition to the injuries to the victim's neck due to strangulation, the vehicle caused linear abrasions to her neck. The victim suffered extensive blunt force trauma to her chest. Her rib cage was crushed, with fractures at the front and back. Both of her lungs were severely bruised in the process, filling with almost a pint of blood. Lower in the victim's abdomen, her liver was "essentially torn in half."

The defendant then stopped the car, stepped out and approached the victim's body. In his own words, the defendant "kicked the victim in the head and neck five or six more times" until she "wasn't moving at all" any more. Finally satisfied that he had killed the victim, the defendant dragged her body out of sight, hiding it in some "icy brush" over a ridge at the side of the road. The defendant drove the victim's car back to his home town of Waterbury and dumped it in a church parking lot. He walked the rest of the way home.

The victim, Lisa Orgnon, died in the early morning of November 19, 1997. The medical examiner certified the cause of death to be "multiple blunt force trauma of the head and chest." The medical examiner found no sign of any natural cause that would otherwise account for her death.

It was life as usual for the defendant that day. He awoke at the ordinary time and arrived at the site of his job with his father's construction company. However, after the victim's mother reported the victim missing, the Naugatuck police interrupted the defendant's schedule, asking him for information.⁴ The defendant initially denied ever being with the victim in Southington, telling the police that the victim "drove [him] directly home" after dropping MacLellan at his house. After the body was found, however, the defendant admitted that he had, in fact, killed her.

The jury returned a verdict of guilty of murder and kidnapping in the first degree. The defendant was sentenced to a total effective sentence of seventy-five years imprisonment. Further facts and procedural history will be set forth where necessary.

First, we take up the defendant's claim that the state committed prosecutorial misconduct during cross-examination and closing argument. The defendant argues that on cross-examination about alleged oral and written confessions, the state improperly asked the defendant whether other witnesses were lying when they testified in conflict with his testimony. The defendant also argues that the state improperly capitalized on this questioning during closing arguments, offering the same view of the evidence assumed in the questioning — that the jury would have to believe that certain state's witnesses had lied in order to adopt the defendant's testimony. Finally, the defendant takes issue with the state's comment...