156 A.3d 18 (Conn.App. 2017), AC 36987, State v. Rios

Docket Nº:AC 36987
Citation:156 A.3d 18, 171 Conn.App. 1
Opinion Judge:PRESCOTT, J.
Party Name:STATE OF CONNECTICUT v. ALBERTO RIOS
Attorney:Mary A. Beattie, assigned counsel, for the appellant (defendant). Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Pamela J. Esposito, senior assistant state's attorney, for the appellee (state).
Judge Panel:DiPentima, C. J., and Prescott and Gruendel, Js.
Case Date:February 28, 2017
Court:Appellate Court of Connecticut
 
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Page 18

156 A.3d 18 (Conn.App. 2017)

171 Conn.App. 1

STATE OF CONNECTICUT

v.

ALBERTO RIOS

AC 36987

Appellate Court of Connecticut

February 28, 2017

Argued September 19, 2016

Substitute information charging the defendant with three counts of the crime of reckless endangerment in the first degree, and with the crimes of assault in the first degree and assault in the second degree, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Kahn, J.; verdict of guilty; thereafter, the court denied the defendant's motion to set aside the verdict and for a new trial, and rendered judgment in accordance with the verdict, from which the defendant appealed to this court.

Affirmed.

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SYLLABUS

The defendant, who had been convicted of several crimes after he struck the victims, N and his girlfriend, S, with his car, appealed to this court. He claimed, inter alia, that the jury's verdict on certain counts of the state's information was legally inconsistent, and that he was not afforded constitutionally sufficient notice of the charges against him. The incident at issue occurred after the defendant, who had dated S's sister, sent threatening messages to N, which disparaged S, and stated that the defendant previously had cheated on and assaulted S's sister. The message did not contain the defendant's name, but included a photograph of him with a gun. N, who did not know the defendant, wanted to " stick up" for S and thereafter arranged to meet the defendant on a street corner. After the defendant struck the victims with his car, he got out and punched N in the face while N was seriously injured as a result of the collision. At trial, the defendant claimed that N had threatened him and that he drove the car toward him in self-defense when he saw N, who was unarmed, reach toward his waistband for what the defendant believed was a gun. In a five count substitute information, the defendant was charged in the first count with assault in the first degree with intent to cause serious physical injury to N, as a result of having used the car to strike N. The second count charged the defendant with assault in the second degree with intent to cause serious physical injury to N, as a result of the same conduct that was alleged in the first count, but with the result that the defendant caused serious physical injury to S. Count four charged the defendant with reckless endangerment in the first degree as a result of his having engaged in conduct that created a risk of serious physical injury to N. The defendant was found guilty of those counts, as well as two other counts of first degree reckless endangerment. Thereafter, the defendant moved to set aside the verdict and for a new trial on the ground that the jury's conclusion that he committed an intentional assault of N and S was legally inconsistent with its conclusion that he recklessly engaged in conduct that created a serious risk of injury to N. The trial court denied the motion to set aside the verdict and for a new trial, and rendered judgment in accordance with the verdict.

Held :

1. The defendant could not prevail on his claim that the trial court improperly denied his motion to set aside the verdict and for a new trial, in which he alleged that the verdict as to counts one, two and four was legally inconsistent because no plausible theory existed under which he could be guilty of having acted intentionally and recklessly at the same time as to the same result; contrary to the defendant's assertion that his conduct constituted one continuous act, the jury reasonably could have concluded that his conduct amounted to two distinct criminal acts in which he intentionally assaulted N and S with the car, and then got out of the car and recklessly endangered N when he struck him with this fists, and thereby created a risk of exacerbating the injuries N had sustained from the collision.

2. This court found unavailing the defendant's unpreserved claim that he was denied due process because he allegedly lacked constitutionally sufficient notice of the charges of which he could be convicted: the state's amended information suggested that the defendant was on notice that the reckless endangerment charge in count four sought to impose criminal liability for conduct that was distinct from the assault charges in counts one and two, the defendant did not file a motion for a bill of particulars or ask the court to instruct the jury that it could not find him guilty of reckless endangerment as to N if it concluded that he was guilty of the assault counts, the evidence supported all of the charges, and the state did not induce the defendant during trial to refrain from defending against the evidence or to believe that the evidence related to only one charge or another; moreover, the prosecutor's closing argument to the jury did not ignore the defendant's postcrash conduct or the reckless endangerment charges, and the court's jury charge supported the conclusion that the defendant had adequate notice that he could be convicted of both the assault charges and the reckless endangerment charge.

3. There was no merit to the defendant's claim that he lacked adequate notice of the charges against him because the state's theory of the case changed when it amended its information to withdraw certain counts that related to his postcrash conduct; the withdrawn counts did not explicitly refer to the postcrash conduct, the state may have withdrawn the counts to reduce confusion for the jury or because they implicated conduct that was covered by the remaining charges, and the defendant did not ask the trial court to require the state to provide reasons for its withdrawal of those counts.

4. The defendant failed to demonstrate that the trial court committed harmful error when it allowed the prosecutor to cross-examine him about his tattoos and to ask him if another witness had lied while testifying:

a. The state's inquiry about another witness' veracity did not force the jury to find the defendant not guilty only if it concluded that the witness had lied, the defendant testified that the witness had simply been mistaken, there was little direct conflict between the witness' testimony and that of the defendant as to whether N's conduct gave rise to the defendant's right to exercise self-defense, and, although the state conceded that one of its questions had been improper, the state's case was strong, and the court's instructions emphasized that the jury was the sole arbiter of witness credibility.

b. Evidence about the defendant's tattoos was not so prejudicial that it was likely to have substantially swayed the jury's verdict, as the state presented strong evidence to demonstrate that the defendant set out to attack N and that tended to disprove his claim of self-defense by showing that he did not subjectively fear N and that any fear he may have had was objectively unreasonable; moreover, the jury was unlikely to conclude that it was objectively reasonable for the defendant, without having seen a gun, to believe that N was about to shoot him, the tattoos were not a central part of the case, and the defendant had the opportunity to steer his car away from N at the time he claimed to have seen N reached toward his waistband for what the defendant believed was a gun.

5. The defendant could not prevail on his unpreserved claim that the trial court improperly instructed the jury about the duty to retreat: the defendant at trial waived his challenge to that instruction, as he had a meaningful opportunity to review and ample opportunity to object to the instruction, but did not do so; furthermore, although the court's instruction risked diluting the jury's understanding of its need to ascertain whether the defendant knew he could retreat in complete safety, the defendant did not meet his burden of establishing that the claimed error was so clear, obvious and indisputable as to constitute plain error that warranted reversal of the judgment of conviction.

6. The defendant's claim that he was deprived of due process as a result of certain prosecutorial improprieties during closing argument was unavailing; although the prosecutor improperly had asked the defendant to comment on the veracity of another witness' testimony and then, during closing argument, referred to his answers, the prosecutor did not mischaracterize or improperly use the defendant's testimony, but referred to it to explain that the witness remained credible, and, contrary to the defendant's assertions, the prosecutor's description of the defendant's conduct as a " hunting mission" to harm N was based on the evidence, and she did not attack the defendant's...

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