STATE OF CONNECTICUT v. ANGEL MORALES
AC 37867
Appellate Court of Connecticut
April 18, 2017
Beach, Mullins and Bear, Js.
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Beach, Mullins and Bear, Js.*
Argued November 29, 2016—officially released April 18, 2017
Daniel P. Scholfield, with whom, on the brief, was Hugh F. Keefe, for the appellant (defendant).
Melissa L. Streeto, senior assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, state‘s attorney, and Robin Krawczyk, senior assistant state‘s attorney, for the appellee (state).
Opinion
The jury reasonably could have found the following facts. On the evening of August 29, 2013, the defendant drove with his friend, Christopher Spear, and two female companions to a nightclub in downtown Hartford known as “Up or On the Rocks.” The defendant parked his car in a nearby parking lot located in the area of High Street and Church Street. Also at the club that night were the victim, Miguel Delgado, his brother, Jose Delgado,1 and a friend, Steven Castano, all of whom had arrived by taxi. While on the second floor of the club and with the defendant present, Delgado and Spear bumped into each other; Spear spilled his drink on Delgado. An argument ensued, during which Spear made a racially charged threat to shoot someone. Returning from the bar, Castano found the two men arguing and tried to separate them. Spear, however, slapped the drink Castano was holding at him, the victim, and Delgado. At that point, the club‘s security escorted Spear, the defendant, and their companions out of the club while detaining the victim, Delgado, and Castano inside the club in an effort to defuse the situation and prevent violence.
Club security held the victim and Delgado in the club for about ten minutes. When they left, Delgado and Spear renewed their argument outside of the nightclub where the defendant had been waiting with Spear. With the defendant present, Spear again threatened to shoot someone. Although their friends, but not the defendant, attempted to defuse the altercation, Delgado and Spear agreed to engage in a fistfight, and the parties proceeded to the parking lot where the defendant had parked his car.
When the men reached the parking lot, Spear struck Delgado on the head with a hard object injuring him. When Spear attempted to retrieve the object, which had fallen to the ground, Delgado punched him, rendering him unconscious. Despite the fact that Spear was unconscious on the ground, Delgado continued to beat Spear, causing him significant injuries to his head and face.
Meanwhile, the defendant recognized that the object with which Spear struck Delgado was a gun. The defendant went to pick it up, but the victim, who was behind him, engaged the defendant and the two men struggled with each other on the ground. In the course of the ensuing struggle, the defendant obtained the gun. As the victim stood up, he struck the defendant in the face and the defendant fired a single shot, which struck the victim in the chest.
After shooting the victim, the defendant fled. He discarded the gun in a garbage receptacle. He then drove away, leaving behind Spear and the women who had accompanied them.
On October 29, 2014, in a single long form information, the state charged the defendant with murder in violation of
I
The defendant contends on appeal that the court abused its discretion when it denied his motion to either bifurcate or sever the charges against him. Specifically, he argues that he was prejudiced by having to defend simultaneously the murder charges and the criminal possession charge. He claims prejudice because, in order to prove criminal possession, the state had to present evidence that he previously had been convicted of a felony. We disagree.
The following additional facts and procedural history are necessary for the resolution of this claim. On the first day of evidence and after the jury had been selected, the defendant moved to bifurcate or sever the charges against him. He proposed two alternative remedies. First, he asked that the court bifurcate the proof of the elements of criminal possession, submitting to the jury in the first part of the trial only the element of possession. Then, if the jury found that the element of possession was proven, he would stipulate to having been previously convicted of a felony. Alternatively, he asked the court to sever2 the criminal possession charge from the murder charges, and to hold consecutive
A
The defendant first sought to bifurcate the elements of criminal possession. Section 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .” As this court has previously stated: “No useful purpose would be served by a separate information alleging only the prior conviction. . . . [A]n information alleging only that a defendant possessed a handgun, without mention of his prior conviction, would fail to allege any cognizable offense under our penal code.” State v. Banta, 15 Conn. App. 161, 173, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). Accordingly, the court did not abuse its discretion when it denied the defendant‘s motion to bifurcate the elements of criminal possession.
B
In the alternative, the defendant sought to sever the criminal possession charge from the murder charges. Before analyzing the defendant‘s claim, we set forth the applicable law and standard of review. “A judicial authority may order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together. . . . A judicial authority may also order separate trials if it appears that a defendant is prejudiced by joinder. . . . This does not mean that severance is to be had for the asking. . . . The question of severance lies within the discretion of the trial court. We will not disturb the trial court‘s conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. . . . Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 343, 662 A.2d 1199 (1995).
In determining whether a refusal to order separate trials was an abuse of discretion when one of the charges involves proof of the prior commission of a felony, this court considers the five factors enunciated in State v. Banta, supra, 15 Conn. App. 170–71:4 “[1] the manner in which the evidence entered the case and the extent of the jury‘s
The first factor requires consideration of the manner in which the evidence entered the case and the amount of detail that the jury received regarding the prior felony conviction. The jury first learned of the defendant‘s prior felony conviction at the close of the state‘s case-in-chief by way of a stipulation that stated only that the defendant had “previously been convicted of a felony.” Additionally, the defendant admitted during his testimony that he was convicted of felonies in 2008 and 2013. The jury did not hear any details of the defendant‘s prior convictions. This factor does not favor him.
The second factor addresses the adequacy of the cautionary instructions given by the court. After the stipulation was read to the jury, the court immediately instructed the jury that it was free to accept or reject the stipulation and that it was not to speculate as to the nature of the felony.6 In its final instructions to the jury,7 the court
The defendant argues that both the court‘s instruction to the jury immediately after the stipulation was read and its final charge to the jury were inadequate. Specifically, he contends that the court failed to provide a sufficient contemporaneous limiting instruction when the stipulation was read to the jury and that the court failed to caution at any point that the stipulation could not be considered to prove any violent propensities. A trial court generally is not obliged to give a limiting instruction sua sponte; State v. Crenshaw, 313 Conn. 69, 90 n.16, 95 A.3d 1113 (2014); and, a fortiori, nor is it required to give a contemporaneous limiting instruction. State v. Willoughby, 153 Conn. App. 611, 618, 102 A.3d 1118 (2014) (court not required to give contemporaneous limiting instruction on admissible hearsay statement); see also William C. v. Commissioner of Correction, 126 Conn. App. 185, 190, 10 A.3d 115 (court not required to give contemporaneous limiting instruction on constancy of accusation testimony), cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011).
The defendant did not request any contemporaneous limiting instruction. The court gave a limiting instruction during the charge to the jury on the use of the prior felony evidence. Although the instruction did not address the use of the evidence for violent propensities, there was no evidence to suggest that either of the defendant‘s felony convictions was for a crime of violence, and the court specifically instructed the jury not to speculate as to the nature of the offense. In the absence of evidence to the contrary, we presume that the jury followed the trial court‘s instructions. State v. Jamison, 320 Conn. 589, 607, 610, 134 A.3d 560 (2016). Therefore, we conclude that the court‘s instructions did not mislead the jury and, thus, the second factor does not favor the defendant.
The third factor requires this court to consider the use of the prior felony evidence by the prosecution in argument to the jury. In her closing arguments with respect to criminal possession, the prosecutor stated, “And there‘s a stipulation in evidence that he has previously been convicted of a felony and on the stand he indicated that he had been. That count should be guilty as well.” It is unlikely that such a brief comment that merely summarized the relevant evidence, and was presented without embellishment, would substantially prejudice the defendant and, therefore, this factor does not favor him.
The fourth factor considers the likelihood that the prior felony conviction evidence will inflame the passions of the jurors
The fifth factor is the strength of the evidence against the defendant. The jury was presented with evidence that the defendant was present during the entire course of events, including both inside and outside the club, and during the subsequent altercation between Spear and Delgado in the parking lot. Rather than leave at any time, he stayed throughout with his friend Spear, even though Spear had threatened to shoot people at least twice that evening. During the altercation in the parking lot, the defendant saw the gun after it had fallen to the ground, ran toward it rather than away from it, struggled for it, and shot the victim with it. He stipulated and testified that he shot the victim.
The matter for the jury to decide was whether the defendant possessed the requisite mental state—the necessary specific intent—to be convicted of murder or manslaughter, or whether the killing was justified as self-defense. The jury returned a verdict of not guilty on the murder charge but guilty of the lesser included offense of intentional manslaughter in the first degree with a firearm in violation of
Applying the five Banta factors to this case, we conclude that the trial court did not abuse its discretion in denying the defendant‘s motion to sever the charges against him.
II
The defendant claims that the court improperly instructed the jury. First, he claims that the court erred when it gave a combat by agreement instruction because, he argues, there was a complete lack of evidence of such an agreement. Second, he claims that the court erred when it denied his request to charge the jury on the defense of necessity as to the criminal possession charge.
Before addressing the defendant‘s claims, we set forth the well established standard of review for claims of instructional error. “An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension.” (Internal quotation marks omitted.) State v. Clark, 264 Conn. 723, 729, 826 A.2d 128 (2003). “[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a
A
In the present case, the defendant claims that the court erred when it gave a combat by agreement instruction because there was a complete lack of evidence of such an agreement. He does not challenge the substance of the court‘s instructions. We conclude that the court‘s instruction did not mislead the jury.
“The trial court should not submit to the jury any issue that is foreign to the facts in evidence or for which no evidence was offered. . . . In reviewing a claim that there was insufficient evidence to support an instruction, the reviewing court must consider the evidence in the light most favorable to upholding the instruction. . . . The question on appeal is whether, viewing the evidence in this light, it was sufficient to support a reasonable inference that the physical force employed by the defendant was the product of an agreement not authorized by law.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 53 Conn. App. 476, 480–81, 733 A.2d 852, cert. denied, 249 Conn. 929, 733 A.2d 849 (1999).
Although an individual may justifiably use deadly physical force in self-defense under
We have reviewed the evidence presented at trial and conclude that there was sufficient evidence to warrant the court‘s instruction. The court reasonably could have determined that there was sufficient evidence, if believed, from which the jury could have found that the defendant entered
In summary, reviewing the evidence as a whole, the court reasonably could have determined that there was sufficient evidence of a tacit or informal agreement among at least some of those present, including the defendant, growing out of and related to the agreement between Spear and Delgado. Accordingly, the court had the discretion to submit to the jury the question of whether the combat by agreement exception to the defendant‘s claim of self-defense had been proved by the state, assuming that the jury found prior to considering that exception that the defendant was acting in self-defense.9 Accordingly, we conclude that the court properly exercised its discretion to charge the jury on the combat by agreement exception to the defendant‘s claim of self-defense.10
B
The defendant also claims that the court erred when it denied his request to present a necessity instruction to the jury as to the criminal possession charge.
The following additional procedural history is relevant to the resolution of this claim. On November 17, 2014, the day that trial began, the defendant filed a request to charge the jury on necessity concerning the criminal possession charge. After the prosecution and defense rested their cases, the court heard argument on the necessity charge on November 19, 2014. The defendant argued that the evidence clearly supported the charge, utilizing the three factors set forth in State v. Wright, 106 Conn. App. 295, 305, 942 A.2d 430, cert. denied, 286 Conn. 921, 949 A.2d 482 (2008), and State v. Marsala, 59 Conn. App. 135, 142, 755 A.2d 965, cert. denied, 254 Conn. 948, 762 A.2d 905 (2000). The state objected, citing State v. Wright, 77 Conn. App. 80, 822 A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466 (2003). The court took the arguments under advisement as it prepared its instructions. At the charge conference the next day, the defendant renewed his request for an instruction on necessity, arguing that the evidence supported that defense, and the state again objected. The court stated that it did not think that the case law supported a necessity charge.11 The court concluded that it would not give the instruction but noted the defendant‘s objection. The court did not instruct the jury on the defense of necessity and, after the charge had been given, the defendant took exception to the court‘s failure to charge.
In reviewing a claim that the court failed to give a requested charge, our standard of review is well settled. “A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. . . . An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. . . . [T]he standard of review to be applied to the defendant‘s constitutional claim is whether it is reasonably possible that the jury was misled. In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect [on] the jury in guiding [it] to a correct verdict in the case. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . In reviewing the trial court‘s failure to charge as requested, we must adopt the version of facts most favorable to the defendant [that] the evidence would reasonably support. A challenge to the validity of jury instructions presents a question of law over which [we have] plenary review.” (Citations omitted; internal quotation marks omitted.) State v. Singleton, 292 Conn. 734, 745–46, 974 A.2d 679 (2009).
“Our statutory definition of the defense of justification,
“Where an offer of proof is made with respect to a defense and it is clear from the offer of proof that the defense is insufficient as a matter of law, the trial court may properly refuse to permit evidence of the defense to be submitted to the jury. . . . This court has . . . adopted a definition of the common law defense of necessity that requires a showing by the defendant (a) that there [was] no legal alternative available, (b) that the harm to be prevented [was] imminent, and (c) that a direct causal relationship [may] be reasonably anticipated to exist between defendant‘s action and the avoidance of harm.” (Citation omitted; internal quotation marks omitted.) State v. Marsala, supra, 59 Conn. App. 142.
In the present case, the elements of the defendant‘s necessity defense as to the criminal possession charge are similar to his self-defense arguments as to the other charges relating to his use of the gun. On appeal, he argues, on the basis of his own testimony at trial, that he saw the gun fall to the ground but that he did not know from where it came. He also argues on appeal that he testified that he attempted to obtain control of the gun because the victim was attempting to do the same thing. The defendant, however, testified at trial that he was the first to attempt to pick up the gun and that the victim attacked him from behind. At no point did the defendant testify that he ran to pick up the gun because the victim was attempting to do so.
Although the defendant attempts to meld the grounds for his necessity affirmative defense as to the criminal possession charge with his self-defense claims as to the murder charges, we examine his necessity claims from the initial time that the opportunity to possess or control the gun
Contrary to the defendant‘s contention, the trial court did not abuse its discretion in denying his motion to bifurcate or sever, nor did the court err in instructing the jury.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of the date of oral argument.