State Of Conn. v. Benitez

Citation998 A.2d 844,122 Conn.App. 608
Decision Date20 July 2010
Docket NumberNo. 31422.,31422.
CourtAppellate Court of Connecticut
PartiesSTATE of Connecticutv.Jorge BENITEZ.

Peter J. Matthews, Hartford, with whom, on the brief, was Mark S. Solak, Putnam, for the appellant (defendant).

Rocco A. Chiarenza, special deputy assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Bonnie R. Bentley and Roger Caridad, senior assistant state's attorneys, for the appellee (state).

HARPER, ALVORD and PELLEGRINO, Js.

HARPER, J.

The defendant, Jorge Benitez, appeals from the judgment of conviction, rendered following a jury trial, of arson in the first degree in violation of General Statutes §§ 53a-8 and 53a-111(a)(4), conspiracy to commit arson in the second degree in violation of General Statutes §§ 53a-48(a) and 53a-112(a)(1)(A), criminal mischief in the first degree in violation of General Statutes §§ 53a-8 and 53a-115(a)(1), conspiracy to commit criminal mischief in the first degree in violation of General Statutes §§ 53a-48(a) and 53a-115(a)(1), and inciting injury to persons in violation of General Statutes § 53a-179a.1 The defendant claims that (1) the trial court deprived him of a fair trial by failing to ensure that a record was created of what transpired when the jury visited the scene of the crime, (2) prosecutorial impropriety deprived him of a fair trial and (3) the court improperly denied his motion for a judgment of acquittal as to the crime of arson in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found that, following a dispute involving the sale of automobiles by the victim to the defendant, the defendant hired Jorge Delgado to set fire to a storage shed on the victim's property. On April 19, 2006, Delgado and his brother, Frankie Delgado, entered the shed and, using accelerant, set fire to it. As the brothers fled from the scene, the victim, who was guarding his property while armed with a rifle discharged his rifle in their direction. Jorge Delgado was struck in the arm by a bullet. Later, Jorge Delgado implicated the defendant in the plan to set the fire.

The victim attempted to put out the fire, to no avail. The fire destroyed the victim's shed and damaged the victim's boat. The fire also damaged a neighbor's storage shed, siding on a neighbor's residence, a fence bordering the victim's property and several trees. A member of the victim's family called 911, and firefighters from several fire departments responded to the scene. One firefighter sustained an ankle injury while battling the fire. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court deprived him of a fair trial by failing to ensure that a record was created of what transpired when the jury visited the scene of the crime. We disagree.

The record reflects that, on May 21, 2008, the state filed a motion in limine, requesting that the jury be permitted to tour the crime scene and to hear “a brief description of the scene” from Joseph McCusker, a state police detective. The defendant joined in the state's motion, and it was granted by the court. Prior to the visit, the parties agreed on a list of points of interest at the crime scene that McCusker would identify for the jury.

There is no transcript of what McCusker stated during the visit to the crime scene. When court reconvened following the visit, the defendant's attorney objected to McCusker's commentary at the crime scene, recalling that McCusker had deviated from the commentary agreed on by the parties. Although the court disagreed with defense counsel's recollection of McCusker's comments, it delivered a curative instruction to the jury. The defendant's attorney agreed with the instruction and did not revisit the issue during the remainder of the trial. After the defendant filed the present appeal, he filed three motions for articulation related to the jury's visit to the crime scene. In relevant part, the court responded by stating that there was no transcript of McCusker's remarks at the crime scene and that, to its recollection, McCusker had not deviated from noting the points of interest on which the parties had agreed.

On appeal, the defendant claims that the court violated Practice Book § 42-6 by failing to ensure that a record was created of what transpired during the jury's visit to the crime scene. The defendant claims that the court's failure to “preserve the record” deprived him of a fair trial because it had the effect of precluding him from raising on appeal the issue that he had raised at trial, namely, that McCusker made inappropriate comments to the jury during the jury's visit to the crime scene, or other issues related to the jury's visit to the crime scene that might have been discovered during the appeal process. The defendant argues that the record is inadequate for review because “any reconstructed record [would] not adequately reflect all of the comments made by ... McCusker [at the crime scene].” The defendant seeks review of this unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5.

Under Golding, a party “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823.

The record is adequate to review the defendant's claim, and the defendant's claim is of constitutional magnitude, alleging that the court's failure to ensure that a record was created deprived him of his ability to challenge what occurred during his trial and, thus, his due process right to a fair trial. See State v. Austin, 195 Conn. 496, 504, 488 A.2d 1250 (1985) ( we recognize that the defendant has a right to a full record of trial proceedings so that proper appellate review may be had ... [but] this, like other constitutional rights, may be waived” [citations omitted] ). The defendant, however, cannot demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial. “The absence of a portion of the trial transcript does not mandate a new trial. A new trial is required only if the proceedings cannot be sufficiently reconstructed to allow effective appellate review of the claims raised by the defendant.” (Internal quotation marks omitted.) State v. Williams, 227 Conn. 101, 105, 629 A.2d 402 (1993). [A]lternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise.” (Internal quotation marks omitted.) State v. Vitale, 190 Conn. 219, 224, 460 A.2d 961 (1983). Our rules of practice afford a procedural remedy to an appellant who wants to rectify a record for purposes of appeal; the defendant had the right to file a motion for rectification of the record and, if necessary, request that the court hold a hearing related to the motion. See Practice Book § 66-5; see also State v. Rae, 119 Conn.App. 740, 746-47, 989 A.2d 126, cert. denied, 296 Conn. 908, 993 A.2d 468 (2010).

It was up to the court, in the first instance, to determine whether a record of what transpired during the visit to the crime scene could adequately be reconstructed for purposes of the defendant's appeal; see State v. Williams, supra, 227 Conn. at 106, 629 A.2d 402; and the defendant had the right to seek review of the court's ruling in this regard. See State v. Aquart, 69 Conn.App. 21, 26-29, 793 A.2d 1185, cert. denied, 260 Conn. 926, 797 A.2d 521 (2002). The defendant did not avail himself of his right to seek rectification of the record, and, unlike the defendant, we do not presume that a transcript of the proceeding at issue was the only means by which he could have proven his claim related to McCusker's comments. In the absence of a showing that the record could not be adequately reconstructed, the defendant has not demonstrated any prejudice in the proceedings. Accordingly, we reject the defendant's claim that a constitutional violation clearly exists and clearly deprived him of a fair trial.2

II

Next, the defendant claims that prosecutorial impropriety during closing argument deprived him of his due process right to a fair trial. The defendant argues that, on two occasions during closing argument, the prosecutor misstated the evidence and engaged in misleading argument. We disagree.

At trial, the defendant objected to one of the two arguments at issue. Nonetheless, the claim related to...

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    ......Any motion filed. pursuant to this section shall state with particularity the. relief sought and shall be filed with the appellate clerk. Any ... differentiates between the two. See State v. Walker,. 319 Conn. 668, 126 A.3d 1087 (2015). "Practice Book §. 61-10(b), which took effect on January 1, ... been pursued to clarify off record agreement between. parties); State v. Benitez, 122 Conn.App. 608, 614,. 998 A.2d 844 (2010) (defendant should have availed himself of. ......
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    ...455, 242 A.2d 757 (1968) (rectification could have been pursued to clarify off record agreement between parties); State v. Benitez, 122 Conn.App. 608, 614, 998 A.2d 844 (2010) (defendant should have availed himself of right to seek rectification of record regarding reconstruction of jury vi......
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    • November 24, 2015
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