State v. Amado

• Court: Appellate Court of Connecticut
• Citation: 50 Conn. App. 607,719 A.2d 45
• Decision Date: 06 October 1998
• Docket Number: (AC 15176)
• Parties: STATE OF CONNECTICUT v. ERIC AMADO

50 Conn. App. 607
719 A.2d 45

STATE OF CONNECTICUT
v.
ERIC AMADO

(AC 15176)

Appellate Court of Connecticut.

Argued February 16, 1998.

Officially released October 6, 1998.

Lavery, Spear and Dupont, Js.

50 Conn. App. 608

Lauren Weisfeld, assistant public defender, for the appellant (defendant)

50 Conn. App. 609

Susann E. Gill, senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (state)

Opinion

SPEAR, J.

This appeal returns to us on remand from our Supreme Court. State v. Amado, 242 Conn. 906, 697 A.2d 368 (1997). In State v. Amado, 42 Conn. App. 348, 363, 680 A.2d 974 (1996), we concluded that the defendant's two felony murder convictions were proper and that they provided a sufficient predicate for his capital felony conviction.

In State v. Johnson, 241 Conn. 702, 721, 699 A.2d 57 (1997), our Supreme Court reversed a capital felony conviction where felony murder was the predicate. The Johnson court relied on State v. Harrell, 238 Conn. 828, 839, 681 A.2d 944 (1996), for the proposition that "the term `murder' in the capital felony statute [General Statutes § 53a-54b] may be applied only to intentional murder." State v. Amado, supra, 42 Conn. App. 348, was remanded to us for reconsideration in light of State v. Johnson, supra, 702. We now reverse the judgment of the trial court on the capital felony count as well as on the intentional murder counts.

The defendant, Eric Amado, appealed¹ from a judgment of conviction, rendered after a jury trial, of capital felony in violation of § 53a-54b (8),² two counts of intentional murder in violation of General Statutes § 53a-54a

50 Conn. App. 610

(a),³ and two counts of felony murder in violation of General Statutes § 53a-54c.⁴ The trial court merged the defendant's felony murder and intentional murder convictions into the capital felony conviction pursuant to State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991) (defendant's double jeopardy rights violated by conviction of and sentencing for two homicide offenses where legislature intended only one punishment)

The defendant asserts that (1) his convictions on the two felony murder counts are not sufficient to support a capital felony conviction, (2) the trial court improperly charged the jury that self-defense was inapplicable to felony murder and (3) the jury was improperly charged on the elements of self-defense,⁵ thereby rendering

50 Conn. App. 611

invalid his convictions on the two counts of intentional murder

I

On reconsideration of the first issue, in light of the Johnson court's determination that a felony murder conviction cannot constitute the predicate for a capital felony conviction, we conclude that only the intentional murder convictions in this case could support the defendant's capital felony conviction. Consequently, we vacate our earlier determination affirming the capital felony conviction.

II

In State v. Amado, supra, 42 Conn. App. 348, we concluded that self-defense is not available as a defense to a charge of felony murder and, therefore, we did not address the claims of improper self-defense instructions. Although we decline the defendant's invitation

50 Conn. App. 612

to revisit this issue with respect to the felony murder convictions, our vacating the capital felony conviction requires us now to address whether the jury was improperly charged on the issue of self-defense with respect to the intentional murder counts. The two felony murder convictions stand, as set forth in our original opinion. Those charges were not affected by the Supreme Court's opinion, which limited its finding and certified issue to the capital murder and felony murder counts.

Specifically, the defendant claims that the trial court's instructions on self-defense misled the jury because the court (1) improperly instructed the jury on the duty to retreat, (2) improperly focused on the victims' rights to use reasonable force in defense of their premises,⁶ (3) improperly instructed the jury on the definition of reasonable force as that term applied to the defendant and (4) improperly defined how the jury should determine who was the initial aggressor. We agree with the defendant that the instructions on both the duty to retreat and the victims' rights to use reasonable force were improper and may have misled the jury in its consideration of the intentional murder counts.⁷

50 Conn. App. 613

A full exposition of the facts that the jury reasonably could have found is recited in State v. Amado, supra, 42 Conn. App. 348. A summary of those facts will suffice here.

The defendant, accompanied by several other people, went to the home of Anthony Young in Bridgeport after the defendant received information that Young had taken a quantity of cocaine from the defendant's West Haven apartment. As the defendant stood on the porch of Young's home, Young opened the door. After accusing Young of having his cocaine, the defendant pulled out his gun and fired five shots, wounding both Young and Peter Hall, who was standing behind Young. Both men were alive when emergency medical personnel arrived at the house. Young was clutching a fully loaded magazine for an automatic weapon, and Hall was holding a small automatic pistol. Both men later died.

The defendant testified that as Young was denying complicity in the theft of the defendant's cocaine, Hall reached for the waistband of his trousers and started to draw a gun. The defendant claimed that he pulled his gun and fired into the house in self-defense only after Young had taken a step toward him and Hall had started to draw a gun from his waistband.

We agree with the state that except for his claim regarding the definition of "initial aggressor," the defendant did not properly preserve the claims of improper instruction that he now raises on appeal.⁸ We agree with the defendant, however, that we should review his claims pursuant to State v. Golding, 213 Conn. 233,

50 Conn. App. 614

239-40, 567 A.2d 823 (1989).⁹ The record is adequate for review and "[b]ecause jury instructions that misstate the statutory defense of self-defense violate a defendant's fourteenth amendment right to establish a defense ... the defendant's claim is reviewable under the precepts of [Golding]." (Citation omitted; internal quotation marks omitted.) State v. Pearsall, 44 Conn. App. 62, 67, 687 A.2d 1301, cert. denied, 240 Conn. 910, 689 A.2d 473 (1997); see State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

It is well settled that "a defendant charged with a crime must be afforded the opportunity to establish a defense.... This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.... [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.... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.... 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.... While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance

50 Conn. App. 615

of the jury." (Internal quotation marks omitted.) State v. Rodriguez, 47 Conn. App. 91, 95, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998), quoting State v. Silva, 43 Conn. App. 488, 491-92, 684 A.2d 725 (1996), cert. denied, 239 Conn. 956, 688 A.2d 329 (1997).

Moreover, our Supreme Court has stated that "a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled." (Internal quotation marks omitted.) State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). We must now determine whether the trial court's instructions on self-defense, considered as a whole, were such that it is reasonably possible that the jury was misled and the defendant was deprived of his constitutional right to present a defense.

A

Because the court's instructions and the defendant's claims regarding both the duty to retreat and the victims' rights to use reasonable force in defense of their premises are so intertwined, we will discuss them together. In State v. Ash, 231 Conn. 484, 499, 651 A.2d 247 (1994), our Supreme Court held that a trial court's instructions regarding the self-defense statute¹⁰ incorrectly suggested to the jury that the statute permits the jury to measure a defendant's knowledge of his ability to retreat according to an objective standard of reasonableness rather than the subjective standard of his actual knowledge. Even though the trial court initially gave a correct instruction on the duty to retreat, the Ash court concluded that the trial court's subsequent misstatements of the law on the duty to retreat made it reasonably possible that the jury was misled and was not, therefore, harmless error beyond a reasonable doubt. Id. According to General Statutes § 53a-19 (b),

50 Conn. App. 616

"a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling...." This section of the self-defense statute refers specifically to the duty to retreat as it applies to a person's right to engage in self-defense. Moreover, "[t]he statute requires both that a retreat in complete safety be available and...