State v. JimenezState v. Jimenez
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The defendant appeals from his conviction, after a jury trial, of the crime of assault in the first degree in violation of
The jury reasonably could have found the following facts. On August 18, 1984, Thomas Comacho, the victim, lived in a third floor apartment at 596 Pembroke Street in Bridgeport with his girl friend, Suma *408Pagan, and their child. The defendant lived in a second floor apartment with his girl friend, Sandra Pagan, Suma’s sister. The defendant and Thomas Comacho had not been getting along for approximately two months. As Comacho was leaving the building and walking by the second floor, the defendant came out of his apartment and into the hallway holding a sawed-off shotgun. Comacho raised his hands and asked the defendant not to shoot him. The defendant then made a threatening remark and shot Comacho in the left leg. Comacho fell to the floor and lost consciousness. As a result of his wound, he spent several months in the hospital and underwent five operations on his left leg, which is now two and one-half inches shorter than his right leg.
On the night of the shooting, Thomas Comacho’s brother, Israel Comacho, was standing outside the apartment building at 596 Pembroke Street when he heard a shot. Israel pulled out a gun, ran up the front stairs of the building, ran after the defendant and fired at him. The defendant, in return, shot Israel Comacho in the back of the neck.2
The defendant did not deny shooting both Thomas and Israel Comacho. He did, however, raise a claim of self-defense. As part of this claim, the defendant testified that two days before the shooting, on August 16, the Comacho brothers had challenged him to come out of his apartment; when he did, they fired six shots in his direction. The defendant testified that he believed that the Comachos were trying to kill him. He stated that on the day after they shot at him, the brothers, who were working on a car in front of the apartment building, “checked him out” and made a move toward the interior of the car. The defendant testified that he was frightened. He obtained two sawed-off shotguns *409after Sandra Pagan told him that her sister had said that the Comachos had bought a box of bullets and were going to kill him. The Comacho brothers both testified and denied all of the defendant’s allegations about the August 16 shooting.
The issue in this appeal is not whether there was sufficient evidence to support a jury instruction on self-defense. The sole issue is whether the trial court improperly instructed the jury as to the “initial aggressor” exception to
The defendant does not contend that the trial court improperly defined the law of self-defense contained in
“Subsection (c) insofar as is applicable to this case states as follows, that, again, ‘Notwithstanding the provisions of subsection (a), that a person is not justified in using physical force when he [meaning the defendant] was the aggressor.’ This exception presents a question of fact for you to determine. Thus, if you find proven beyond a reasonable doubt that the defendant was, in fact, the aggressor, meaning that he was the first to use physical force, then the state has succeeded in disproving the defense of self-defense. ” (Emphasis added.)
The defendant duly noted his sole exception to the charge, stating: “My exception regarding the charge of self-defense, Your Honor defined for the jury the initial aggressor as the first one to use physical force. Mr. Eisenman and I have some sort of feud, he sees me pull my coat back, and he pulls out a gun and he shoots me in self-defense. He is the initial aggressor, he is the first one to use force, and that is why the way Your Honor defined that term, and it’s more than the person — it’s not the first one who, you know, actually shoots a gun; it’s the initial aggressor is the first one who causes the problem which gives rise to the incident.”5
*411The defendant also filed a motion for a new trial in which he claimed that the court’s instructions on the initial aggressor exception under
There is no question that “[t]he standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be ‘critically dissected in a microscopic search for possible error.’ State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury in a manner to prevent injustice. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). We review the whole charge to determine whether it sufficiently guided the jury to a proper verdict. State v. Shaw, 24 Conn. App. 493, 499, 589 A.2d 880 (1991).” State v. Hester, 28 Conn. App. 469, 472, 612 A.2d 120 (1992).
The function of the charge is to assist the jury in correctly applying the law to the facts that it finds are established. State v. Havican, 213 Conn. 593, 603, 569 A.2d 1089 (1990). We conclude that, when read as a whole, the trial court’s instruction on self-defense performed this function. The charge was in accordance with
The defendant states that the “focal point of the defense as to the charges pertaining to Thomas Comacho was the reasonableness of the defendant‘s belief as to what Thomas was about to do at the time the defendant shot him.” (Emphasis in original.) This was precisely the “focal point” of the trial court’s instructions to the jury.
*413The court began its instruction on self-defense by stating: ‘ ‘ Self-defense is a means by which the law justifies the use of force which would otherwise be illegal. Once self-defense is raised in a case, the state must disprove the defense beyond a reasonable doubt. A person is justified in the use of reasonable physical force upon another when he reasonably believes that stock force is necessary to protect himself or another person from the use of or the impending use of force by another. Self-defense is a legal defense to the use of force which would otherwise be criminal.” (Emphasis added.)
The court then read to the jury the statutory definition of self-defense contained in
The court continued to focus the jury’s attention on the defendant’s reasonable belief with respect to Thomas Comacho, stating: “In this case, there is no evidence that at the time of the shooting that Thomas Comacho actually used any deadly physical force upon the defendant. So the issue as to Thomas Comacho is whether the defendant reasonably believed that Thomas Comacho was about to use deadly physical force upon him, or about to inflict great bodily harm upon him. If the state disproves that belief, and its reason is beyond a reasonable doubt, you would reject the defense as to self-defense as to Thomas Comacho.”
*414After defining the exceptions to
The defendant argues that by defining “the aggressor” as “the first to use physical force,” the trial court foreclosed his right to have the jury pass on his self-defense claim under
The jury had before it evidence in the form of the defendant’s allegations that the victim and his brother had summoned the defendant from his apartment and shot at him on August 16. Because the court’s instruction did not limit to August 18, the day the victim was shot, the period during which the jury could determine who was the initial aggressor, the jury’s function was not thwarted by the challenged instruction. Had the jury believed the defendant’s allegations regarding the Comachos’ shooting at him, it might properly have determined that he was not the initial aggressor. Moreover, the court’s instructions also would have permitted the jury to find that the defendant was justified in using deadly force on August 18, if they determined that he reasonably believed Thomas Comacho was about to use deadly physical force or to inflict great bodily harm, in view of the shooting that had occurred two days earlier.7
Considering the trial court’s charge as a whole, we conclude that it was not reasonably possible that the jury was misled.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The defendant was found not guilty of the first two counts of attempted murder in violation of
The jury acquitted the defendant of both counts involving the shooting of Israel Comacho.
We note that in his closing argument to the jury, the defendant’s counsel stated: “Initial aggressor doesn’t mean I call you a name, you take out a gun, and I shoot you, and I was the initial aggressor. It has to be someone who does something physical, violence. If I punch you, you take out a gun and then I shoot you, I have been the aggressor in that case. That is what the law is, if it’s appropriate. The judge will instruct you on that.”
The court stated: “In other words, what is important is what the defendant reasonably believed under the circumstances in this case. The test for the degree of force in self-defense is both a subjective and an objective test, meaning it has some objective aspects or, excuse me, it has some subjective aspects and some objective aspects. Self-defense thus requires the jury to measure the justifiability of the defendant’s actions from the subjective standpoint; that is what the defendant reasonably believed under the circumstances presented in this case, on the basis of what the defendant perceived them to be.
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“In this case, if you find proven beyond a reasonable doubt that either victim was not using or about to use deadly physical force or inflict great bodily harm upon the defendant, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that the victim was using or about to use deadly physical force or about to inflict great bodily harm upon the defendant, then the defendant would not be justified in using deadly physical force upon the victim. And you would, under those conditions, reject the defense of self-defense.”
In concluding its instruction on self-defense, the court cautioned the jury to “[rjemember . . . that the burden remains on the state to disprove the defense of self-defense beyond a reasonable doubt, and to disprove beyond a reasonable doubt the defendant’s belief it was reasonable.”