State v. Albino

• Citation: 97 A.3d 478,312 Conn. 763
• Decision Date: 05 August 2014
• Docket Number: Nos. 18866,18867.,s. 18866
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jonathan ALBINO.

312 Conn. 763

97 A.3d 478

STATE of Connecticut

v.Jonathan ALBINO.

Nos. 18866, 18867.

Supreme Court of Connecticut.

Argued Oct. 30, 2013.

Decided Aug. 5, 2014.

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Patrick J. Griffin, senior assistant state's attorney, and Raheem L. Mullins, former assistant state's attorney, for the appellant in Docket No. SC 18866 and the appellee in Docket No. SC 18867 (state).

Pamela S. Nagy, assigned counsel, New Haven, for the appellee in Docket No. SC 18866 and the appellant in Docket No. SC 18867 (defendant).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and VERTEFEUILLE, Js.

McDONALD, J.

Following our grants of certification, the defendant, Jonathan Albino, and the state separately appealed from the Appellate Court's judgment affirming the defendant's conviction of murder in violation of General Statutes § 53a–54a. In his appeal, the defendant challenges the Appellate Court's determination that only certain statements by the prosecutor during trial and closing argument were improper, and that those improprieties did not deprive the defendant of a fair trial. In its appeal, the state contends that, in deeming one category of statements improper, the Appellate Court improperly extended this court's holding in State v. Singh, 259 Conn. 693, 712, 793 A.2d 226 (2002), which barred the prosecutor from asking a defendant whether another witness' conflicting testimonyis “wrong,” to the prosecutor's closing argument. We conclude that the state's appeal must be dismissed because the state is not aggrieved by the judgment of the Appellate Court, but we nonetheless consider its claim as an alternative ground for affirmance. We further conclude that the defendant was not deprived of a fair trial. Accordingly, we affirm the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following facts that the jury reasonably could have found. “[The defendant] worked daily selling heroin behind a three-story apartment building located at 132 Locust Street in Waterbury (building). He [only speaks Spanish], and most of his customers ... spoke Spanish. The heroin selling operation was run by William Ramos.... Ramos employed approximately five or six young men, including the defendant.... During his shift, which usually was from 3 to 10 p.m., the defendant carried a loaded firearm.

“On September 18, 2006, the defendant worked [past] his usual shift.... During that time [people attending a party in the building] were congregating both inside and outside the building, while loud music played. Ramos, who testified for the state, was on the second floor of the building overseeing his drug selling operation. At approximately 10:30 p.m., the defendant was sitting on the stairs just above the second floor landing when the victim, Christian Rivera, approached the building on a bicycle [and then left the bicycle in front of the building]. When Rivera approached the [dimly lit] stairwell, he had his hands in his pockets, and he was wearing a hooded sweatshirt with the hood up. The defendant descended the stairwell, thinking that Rivera was there to purchase heroin.

“As Rivera approached the landing, the defendant, who could not see Rivera's face, instructed him in Spanish to remove his hands from his pockets and to take down the hood of his sweatshirt. Rivera did not respond to the defendant's instructions and continued his approach. Rivera was not acting in an aggressive manner, and Ramos saw nothing in Rivera's actions that caused him concern. As the defendant and Rivera came [close to] one another, the defendant pushed Rivera and again ordered him to take his hands out of his pockets and to remove his hood. Again, Rivera did not respond to the defendant, kept his hands in his pockets and continued to move forward. The defendant pushed Rivera a second time and felt something hard in Rivera's pocket. The defendant then brandished a nine millimeter semiautomatic firearm, pulled back the slide and aimed the firearm at Rivera.... [Seconds later, the] defendant fired the weapon approximately eight times at close range, hitting Rivera four times. The defendant stopped firing when Rivera fell to the ground.... Rivera died as a result of these gunshot wounds. When the police found Rivera's body, he had no weapons, money or identification on him. He did, however, have a bottle of Poland Spring water in his pocket. The medical examiner's office determined that ... three of the four bullets that struck Rivera ... entered from the back of his body [and the fourth entered from his left side].

“Immediately after the shooting, the defendant ran upstairs and gave the firearm to his friend, Angel Garcia, and then left the scene. The defendant removed the red T-shirt he had been wearing and discarded it into some bushes. He later telephoned his friend, Jose Velez, telling Velez that he needed to get away because he had shot someone.... During [a subsequent car] ride [accompanying Velez to New York], the defendant told Velez and the other men in the vehicle, Luis Rios and Zachary Gonzalez, that he had shot a man on Locust Street because the man would not respond to his orders.... [The following day, the defendant learned that an arrest warrant had been issued for him, and on the evening of September 20, 2006, he turned himself in to the Waterbury police].

“Thereafter, the defendant was advised, in Spanish, of his Miranda¹ rights. He waived his rights ... and willingly offered to tell his story to Detective George Tirado and Sergeant Michael Slavin. Although Tirado was able to communicate verbally with the defendant in Spanish, he was concerned about his ability to transcribe the defendant's written statement. Therefore, a state certified high school Spanish teacher, Yesenia Diaz, was called upon to transcribe the defendant's written statement in Spanish.... In his statement, the defendant admitted to shooting Rivera [and to stopping only when he saw Rivera fall to the ground, at which point he ran up the stairs]. The defendant further admitted that he had fired at Rivera because, as Rivera walked toward him, Rivera ignored [the defendant's] commands [to] remove his hands from his pockets and take off his hood. [The defendant offered no other explanation for the shooting.]” (Footnote in original.) State v. Albino, 130 Conn.App. 745, 747–50, 24 A.3d 602 (2011).

The record reveals the following additional facts. During the defendant's trial on the charge of murder, he took the stand and asserted that he had shot Rivera in self-defense. According to the defendant, in addition to Rivera's failure to heed the defendant's command to take his hands out of his pockets, he also said, as he came close to the defendant, “give me the drugs, give me the money.” In response, the defendant told Rivera that he was crazy and pushed him, but Rivera continued to walk up the stairs. When the defendant pushed Rivera a second time, he felt something hard in Rivera's pocket and feared that this object might be a gun. In response, the defendant pulled out his gun and engaged the mechanism that readied it to discharge, initially pointing it at the ground. When Rivera continued toward the defendant without heeding the defendant's repeated demand to take his hands out of his pockets, the defendant feared that Rivera would shoot him. At that point, the defendant started shooting at Rivera, while retreating backward up the stairs, until there were no bullets left in the gun. As the defendant turned to flee, Rivera was still standing. The defendant fled from Waterbury because he feared that Rivera would come after him.

In support of his theory, the defendant attempted to impeach the state's witnesses regarding their accounts of his actions and statements. He also offered the following affirmative evidence. To explain his capacity to give a less than full and accurate statement to the police, he presented evidence of his low IQ, just above the threshold for mental retardation. To explain the eight shots fired, the defendant offered expert testimony regarding “reflex trigger pull,” a phenomenon that occurs when a person confronted with a life-threatening situation holds a gun so tightly that he may reflexively discharge numerous rounds before his mind can signal his hand to release the trigger. To bolster his robbery claim, the defendant offered hostile witness testimony from Rivera's sister, who acknowledged that Rivera had been selling and using drugs and that he had been worried about a $240 drug debt. The defendant also offered evidence that Rivera had pleaded guilty to charges of attempt to commit assault in the third degreeand reckless endangerment for conduct that had occurred two years before his death, for which he had received one year suspended sentences.

The court instructed the jury on the charged offense of murder, as well as the justification of self-defense, and on the lesser included offenses of manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a and manslaughter in the second degree with a firearm in violation of General Statutes § 53a–56a. The jury found the defendant guilty of murder, and the trial court rendered judgment in accordance with the verdict, imposing a term of fifty years imprisonment.

The defendant directly appealed to this court from the judgment; see General Statutes § 51–199(b); raising three challenges to his conviction, including that he had been deprived of a fair trial because of improper statements made by the prosecutor during trial and in closing argument. We transferred the appeal to the Appellate Court, where the defendant contended with respect to that claim that the prosecutor: “(1) repeatedly commented on the guilt of [the] defendant and attempted to influence the jury by his persistent use of the terms victim, murder, and murder weapon...