State v. Rivera

200 Conn.App. 401

240 A.3d 303

STATE of Connecticut

v.Juan J. RIVERA

AC 42388

Appellate Court of Connecticut.

Argued June 17, 2020

Officially released September 29, 2020

John L. Cordani, Jr., assigned counsel, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Alison Kubas, special deputy assistant state's attorney, for the appellee (state).

DiPentima, C. J., and Alvord and Keller, Js.^*

KELLER, J.

The defendant, Juan J. Rivera, appeals from the judgment of conviction, rendered following a jury trial, of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). The defendant claims that (1) the evidence was insufficient to support a finding that the conduct giving rise to the conviction had occurred in a public place and (2) the conviction violated the constitutional prohibition against double jeopardy. With respect to the first claim, we reverse the judgment of the trial court. Because we conclude that the evidence was insufficient to support the jury's verdict of guilty, and we have reversed the judgment of conviction and ordered that the trial court render a judgment of acquittal, we need not reach the second claim.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant was enrolled as a student at the New England Tractor Trailer Training School (school) in Somers, where he was training to get his commercial driver's license. On the morning of July 7, 2016, Walter Tarbox, an instructor at the school, entered the school's student breakroom to check in the approximately twenty-five students who were present. The defendant and several other students were seated at a table that Tarbox wanted to use to check students in for the day. When Tarbox asked to use the table, some students moved, but others, including the defendant, remained seated. The defendant stood up and began yelling at Tarbox. The defendant kept "getting into [Tarbox’] face" and was close enough to Tarbox that his nose touched Tarbox’ nose. Whenever Tarbox took a step back, the defendant "kept coming forward" toward Tarbox "in a rage." The defendant called Tarbox "the ‘N’ word" and said that Tarbox needed to "get beat up." He then stated that he wanted to punch Tarbox in the mouth and that he and "his boys" would "come after" Tarbox and Tarbox’ family.

The altercation in the breakroom lasted roughly fifteen minutes until the defendant told Tarbox that he wanted to "go outside and fight [Tarbox]." Tarbox reasoned that going outside and away from the other students might diffuse the situation and allow him to locate a lead instructor. The two men walked outside to a parking lot area in front of a garage on the premises. While outside, the defendant continued yelling at Tarbox, calling him "the ‘N’ word," and saying that he would "bring his boys" and "take care of" him and his family. At times, the defendant pulled his fist back, "squar[ed] up" with Tarbox, and told Tarbox to fight him.

While outside, Tarbox used his cell phone to call Kevin Lusty, a lead instructor at the school, to inform him about the situation. Tarbox asked Lusty to meet him in front of the garage. After speaking with Tarbox about what happened, Lusty asked the defendant to join him in his supervisor's office to have a private conversation. The two sat down and began speaking about the situation, but Lusty stopped the conversation when, in his words, the defendant "started to disrespect [Tarbox]." The defendant then stood up and slammed his hands on the desk in the office. Immediately after, he said "fuck you" to Lusty and told him not to go outside if, in the defendant's words, he knew what was good for him.

The defendant went back outside and Lusty, concerned for Tarbox, followed him. The defendant, still angry, started coming toward Lusty, but went off to the side of Lusty and then began walking in front of Lusty. The defendant went toward the front of the garage again while yelling about his displeasure with the school. Lusty persuaded the defendant to go into the front of the building and then asked him to leave the premises. The defendant initially refused to leave, but left once Lusty threatened to call the police.

After the incident, Tarbox went home for the day and returned to the school two days later, where he gave a signed, sworn statement to Officer Scott Mazza of the Somers Police Department. After receiving this statement, Mazza and another officer called the defendant. When Mazza asked the defendant about the incident, the defendant raised his voice and became, in Mazza's words, "agitated" and "angry." Mazza then asked the defendant to provide a statement to the police concerning the incident, but the defendant refused and hung up.

Pursuant to an arrest warrant, the police arrested the defendant on March 10, 2017. By substitute information, the state charged the defendant with one count of breach of the peace in the second degree in violation of § 53a-181 (a) (1), one count of breach of the peace in the second degree in violation of § 53a-181 (a) (3), one count of breach of the peace in the second degree in violation of § 53a-181 (a) (5), and three counts of threatening in the second degree in violation of General Statutes (Rev. to 2015) § 53a-62 (a). The defendant pleaded not guilty to all six counts.

A jury trial began on August 24, 2018. The state called Tarbox, Lusty, and Mazza to testify about the incident. The defendant did not call any witnesses and the court did not admit any exhibits from either party into evidence.

At the close of the state's case-in-chief, the defendant moved for a judgment of acquittal on all counts,¹ which the court granted as to the second count, breach of the peace in violation of § 53a-181 (a) (3), and the third count, breach of the peace in violation of § 53a-181 (a) (5). On August 28, 2018, the jury returned a guilty verdict on count one, breach of the peace in violation of § 53a-181 (a) (1), and found the defendant not guilty of the remaining three counts. The defendant was sentenced to a period of six months incarceration, execution suspended, followed by one year of conditional discharge. This appeal followed.

The defendant claims that the evidence does not support the conviction of breach of the peace in the second degree because it does not support a finding that the conduct giving rise to the conviction, the altercation with Tarbox, had occurred in a public place.² We agree.

I

Before turning to the merits of this claim, we must first address the state's argument that it is unreviewable by this court. The state argues that the defendant, through counsel, explicitly waived his right to have the state prove every element of § 53a-181 (a) (1) beyond a reasonable doubt by conceding during closing argument that the altercation occurred in a public place. We disagree with the state's contention.

"[W]aiver is an intentional relinquishment or abandonment of a known right or privilege.... It involves the idea of assent, and assent is an act of understanding.... The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct.... In order to waive a claim of law it is not necessary ... that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy." (Internal quotation marks omitted.) State v. Kitchens , 299 Conn. 447, 469, 10 A.3d 942 (2011).

"It is well settled that a criminal defendant may waive rights guaranteed to him under the constitution.... The mechanism by which a right may be waived, however, varies according to the right at stake.... For certain fundamental rights, the defendant must personally make an informed waiver.... For other rights, however, waiver may be effected by action of counsel.... When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal." (Internal quotation marks omitted.) State v. Foster , 293 Conn. 327, 337, 977 A.2d 199 (2009).

"[A]lthough there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial. ... As to many decisions pertaining to the conduct of the trial, the defendant is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney. ... Thus, decisions by counsel are generally given effect as to what arguments to pursue ... what evidentiary objections to raise ... and what agreements to conclude regarding the admission of evidence .... Absent a demonstration of ineffectiveness, counsel's word on such matters is the last." (Internal quotation marks omitted.)

State v. Kitchens , supra, 299 Conn. at 467–68, 10 A.3d 942, quoting New York v. Hill, 528 U.S. 110, 114–15, 120 S. Ct. 659, 145 L. Ed. 2d 560 (2000).

"Courts indulge every reasonable presumption against waiver of fundamental constitutional rights and ... do not presume acquiescence in the loss of fundamental rights." (Internal quotation marks omitted.) State v. Shockley , 188 Conn. 697, 707, 453 A.2d 441 (1982), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). "[A] waiver of a fundamental constitutional right is not to be presumed from a silent record." State v. Shockley , supra, 707, 453 A.2d 441, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). For a waiver to be effective, "it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege." (Internal quotation marks omitted.) Brookhart v. Janis , 384 U.S. 1, 4, 86 S. Ct....