State v. Bellino

• Decision Date: 08 July 1993
• Docket Number: No. 10515,10515
• Citation: 31 Conn.App. 385,625 A.2d 1381
• Parties: STATE of Connecticut v. Charles BELLINO.
• Court: Connecticut Court of Appeals

Page 1381

625 A.2d 1381

31 Conn.App. 385

STATE of Connecticut v. Charles BELLINO.

No. 10515.

Appellate Court of Connecticut.

Argued Jan. 12, 1993.

Decided May 25, 1993.

Certification Granted, limited to following

issues July 8, 1993.

Lauren Weisfeld, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom were John Waddock, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee (state).

Before FOTI, LAVERY and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of conviction rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1), ¹ attempted assault in the first degree in violation of General Statutes §§ 53a-49(a) and 53a-59(a)(1), and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court improperly instructed the jury regarding self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 3:45 a.m. on September 24, 1989, a jeep and a red hatchback were traveling on Sherman Avenue in New Haven. The hatchback was driven by Ernest Reid. The defendant occupied the front passenger seat of the hatchback, and Henry Jackson was in the rear seat behind the defendant. The jeep was driven by Frederick Stuart. Frederick's brother, Jose Stuart, occupied the front passenger seat of the jeep, and Matthew Taylor was in the rear seat behind the driver.

As the two vehicles proceeded along Sherman Avenue, they became embroiled in a "cat and mouse" game. Reid drove the hatchback in front of the jeep and then prevented the jeep from passing the hatchback.

At the intersection of Sherman Avenue and Chapel Street, the jeep stopped near the curb and the hatchback stopped to the left of the jeep. The two vehicles were four to five feet apart. The driver of the jeep rolled down his window and asked Reid if he had a problem. Reid replied that he did not. The driver of the jeep bent forward, and immediately thereafter the defendant produced a handgun and fired two shots at the jeep. As the jeep then pulled forward, the defendant fired two or three more shots, shattering the driver's side and rear windows of the jeep. The entire incident lasted only a few seconds. Once they were back at Reid's apartment, Reid asked the defendant what had happened. The defendant told Reid that he thought the driver of the jeep had been reaching for a weapon. As a result of this incident, Frederick Stuart died of a gunshot wound to the head. Taylor sustained a gunshot wound to the back.

The defendant testified that before the confrontation with the jeep, he had noticed a shotgun between the front seats of the hatchback, near the emergency brake. At some point during the "cat and mouse" game between the vehicles, according to the defendant, Reid pointed the shotgun over the defendant and toward the jeep. After the defendant pushed the shotgun away from his face, Reid put the gun back between the front seats. The defendant further testified that, at the intersection of Sherman Avenue and Chapel Street, after the oral exchange between the drivers, the driver of the jeep made a movement, Jackson yelled that the occupants of the jeep had a gun and then gunfire began, at which time the defendant ducked and stayed down for the duration of the gunfire. The defendant stated that he did not possess a weapon or shoot anyone during the encounter.

The trial court instructed the jury on self-defense as follows: "The law provides that a person is justified in using deadly force upon another person to defend himself from what he reasonably believed to be the use or imminent use of deadly physical force or the infliction of great bodily harm, provided that the person may only use the degree of force which he reasonably believed to be necessary for the purpose of defending himself.

"A person cannot use what the law calls deadly physical force, that is physical force which can be reasonably expected to [lead] to death or serious physical injuries, unless he reasonably believes that the other person was himself using or about to use deadly physical force or was inflicting, or about to inflict great bodily harm. The key word in the general rule and these important exceptions is 'reasonable.'

"First of all, the defendant must have a reasonable belief that he is faced with the imminent use of deadly physical force upon him. A reasonable belief is one which a reasonably prudent person in the same circumstances would have. It is not an irrational belief, nor is it a belief that is not justified by all the circumstances existing then and there, nor is it necessarily the belief that the defendant in fact had; it is the belief that a reasonable person would have had under the circumstances. Secondly, acting with that reasonable belief the amount and the degree of force which he uses must be reasonable. It must be that degree of force which a reasonable person in the same circumstances would use and no more.

"If the degree of force used is excessive or unreasonable in view of all the circumstances, the defendant is not entitled to the defense of self defense. Whether the defendant had a belief that Mr. Stuart was about to inflict deadly physical force against him, and if he had that belief, whether it was a reasonable belief, and whether the defendant's use of deadly physical force was reasonable are all questions of fact for you to decide."

The defendant's challenge to the court's instructions on self-defense is twofold. The defendant contends that the trial court failed to instruct the jury, in accordance with General Statutes § 53a-19(b)(1), ² that the defendant was required to retreat only if he could do so with complete safety. The defendant also contends that the trial court did not properly instruct the jury, in accordance with General Statutes § 53a-19(a), ³ regarding the subjective aspect of the self-defense inquiry. We do not agree with either claim.

The defendant did not properly preserve either claim for appellate review. ⁴ He seeks review, however, under the well established principles for the review of unpreserved constitutional claims set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), ⁵ because his fundamental right to present a defense includes a proper instruction on the elements of self-defense. State v. Gilchrist, 24 Conn.App. 624, 632-33, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). Nonetheless, we conclude that the defendant cannot prevail on this claim because he cannot show that "the alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial." State v. Golding, supra, 213 Conn. at 240, 567 A.2d 823.

THE DEFENDANT'S DUTY TO RETREAT

The defendant correctly points out that the trial court did not instruct the jury on the duty to retreat or the statutory limitations on that duty. See footnote 2, supra. It is well settled, however, that the trial court should adapt its instructions to the issues in the case in order to provide appropriate guidance to the jury. See State v. Butler, 207 Conn. 619, 636, 543 A.2d 270 (1988); see also State v. Hawkins, 19 Conn.App. 609, 618, 563 A.2d 745, cert. denied, 212 Conn. 820, 565 A.2d 540 (1989) (issues not supported by the evidence should not be submitted to the jury). Here, the court properly omitted from its self-defense instructions any mention of the duty to retreat because there was no evidence that the defendant could safely retreat from the vehicle. In fact, the undisputed evidence suggests otherwise, and the state did not claim that retreat was an option available to the defendant.

Moreover, the defendant's suggestion that the court's failure to instruct on retreat "left the jury with no guidance whatsoever, allowing it to substitute its commonplace assumptions for the law," finds no support in the record. Legal principles concerning the duty to retreat did not play a part in this case, and there is no reason to believe that the jury would have considered that issue on its own. In its instructions on self-defense, the trial court properly chose to focus the jury's attention on the crux of the defendant's claim of self-defense, namely, that he was justified in using the degree of force that he reasonably believed necessary to defend himself from what he reasonably believed to be the imminent use of physical force. Under these circumstances, the defendant's claim must fail.

THE DEFENDANT'S BELIEF REGARDING IMMINENT ATTACK

The defendant also claims that the trial court did not properly instruct the jury on the subjective aspect of his self-defense claim. Specifically, he focuses on the following language in the court's self-defense instructions, which served to guide the jury in its evaluation of the defendant's belief that he was faced with the imminent use of deadly physical force: "A reasonable belief is one which a reasonably prudent person in the same circumstances would have. It is not ... necessarily the belief that the defendant in fact had; it is the belief that a reasonable person would have had under the circumstances."

"The standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be 'critically dissected in a microscopic search for possible error.' State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be...