State v. Boone, s. 5703

Decision Date21 June 1988
Docket Number5840,Nos. 5703,s. 5703
Citation544 A.2d 217,15 Conn.App. 34
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. James BOONE.

Peter A. Gutermann, Sp. Public Defender, for appellant (defendant).

Julia DiCocco Dewey, Asst. State's Atty., with whom, on the brief, was Peter Markle, Former Asst. State's Atty., for appellee (State).

Before SPALLONE, DALY and NORCOTT, JJ.

NORCOTT, Judge.

After a trial to a jury, the defendant was found guilty of assault in the first degree in violation of General Statutes § 53a-59(a)(1) and was acquitted of the charge of robbery in the first degree in violation of General Statutes § 53a-134.

On appeal, the defendant claims that the trial court erred (1) in failing to instruct the jury on the defendant's requested defense of duress, 1 (2) in permitting the state to question the defendant and to comment upon the defendant's pretrial silence, (3) in admitting evidence of a pretrial identification of the defendant, (4) in denying the defendant's motions for judgment of acquittal (5) in failing to declare a mistrial as a result of judicial misconduct at trial, (6) in its instructions to the jury, and (7) in finding a probation violation based upon a conviction which resulted from an erroneous and unfair trial. The defendant also claims that he was denied due process of law and a fair trial because of prosecutorial misconduct. We find no error.

From the evidence introduced at trial, the jury could reasonably have found the following facts. On November 27, 1985, Ronald Rinaldi spent several hours drinking beer at a Waterbury bar. When he left the bar, Rinaldi went to his brother's house in Waterbury where he consumed more beer. Rinaldi left his brother's home sometime between 1:30 and 2:00 a.m. on Thursday, November 28.

As Rinaldi was driving home, two women who were standing on the side of the road near the intersection of Grove and Willow Streets in Waterbury signalled to him. Rinaldi pulled his car over, and after a brief conversation, he offered the women a beer. The women climbed into the car and directed Rinaldi to a parking lot on Grove Street. Once there, Rinaldi again offered the women a beer. One of the women responded by saying "It's not your beer we want, its your money." Both women were armed with knives. Rinaldi did not give them the money, and an altercation ensued.

In the midst of the altercation, one of the women opened the car door and shouted out, "Yo." Immediately thereafter, the defendant, the woman's fiance, appeared at Rinaldi's car. The defendant entered the car, held a knife to Rinaldi's throat and demanded his money. The defendant and his female companions then fled after attacking Rinaldi with their knives, wounding him in the process. The defendant testified that he took no money from Rinaldi and only showed a knife to frighten Rinaldi into leaving the neighborhood. After the parking lot encounter, the defendant and the two women went to one of the women's nearby apartment.

After waiting in the apartment for a short time, the defendant and his fiancee drove the other woman to her apartment located a very short distance away. After dropping her off, the defendant and his fiancee once again encountered Rinaldi. After the incident in the Grove Street parking lot, Rinaldi had attempted to leave but could not start his car. Rinaldi armed himself with a pinchbar, a foot long metal device used for removing nails, and began walking down the street in search of medical help. Several witnesses observed Rinaldi staggering down Willow Street.

Upon seeing the defendant and his fiancee, Rinaldi announced to a bystander: "This is the bitch that just robbed me." Rinaldi then approached the defendant's car and punched his fiancee.

After Rinaldi struck the woman, the defendant, armed with a knife, got out of the car and approached Rinaldi. The defendant stabbed Rinaldi in the stomach causing him to fall. While Rinaldi was on the ground, the defendant stabbed him again in the chest. The defendant then fled the scene.

At approximately 4:25 a.m., Officer Stephan Patten of the Waterbury police department observed Rinaldi staggering down West Main Street while bleeding from the neck and chest areas. The officer helped Rinaldi to the police cruiser and took him to St. Mary's Hospital where doctors performed six hours of emergency surgery. At the time of his arrival, Rinaldi had lost approximately 50 percent of his total blood supply. The doctors treated Rinaldi for stab wounds to the stomach and chest, a punctured liver and lung, a slit throat and multiple lacerations on his hands, thumbs and fingers.

I

The defendant first assigns error to the trial court's refusal to instruct the jury on the defendant's requested defense of duress. "When we are reviewing a trial court's failure to charge as requested, 'we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.' State v. Anonymous (1977-9), 34 Conn.Sup. 612, 616, 380 A.2d 7 (1977); see State v. Cassino, 188 Conn. 237, 239, 449 A.2d 154 (1982); State v. Arroyo, 181 Conn. 426, 435 A.2d 967 (1980)." State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).

The defendant produced the following facts at trial. In April, 1985, the defendant's fiancee was raped, beaten and nearly killed in an incident for which the perpetrators were tried and convicted. Following that incident and the subsequent trial, both the defendant and his fiancee learned that their lives had been threatened. On the day before the incident with Rinaldi, a man had come to the defendant's apartment and told both the defendant and his fiancee that they were to be killed. In addition to these threats, the defendant and his fiancee testified at trial that Rinaldi had both verbally and physically threatened them before the defendant used his knife to repel Rinaldi's attack. The defendant contends that this evidence was enough to have the defense of duress submitted to the jury. The trial court found no evidence of coercion in the case and refused the defendant's request for an instruction on duress. The trial court instructed the jury only on self-defense as a justification for the crime, pursuant to General Statutes § 53a-19.

"Duress is a legally recognized defense in this state; State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979); and the legislature by statute has provided that the threatened imminent use of physical force upon a third person may constitute duress. See General Statutes § 53a-14." 2 State v. Fuller, supra, 277-78, 506 A.2d 556. " 'When a defendant admits the commission of the crime charged but seeks to excuse or justify its commission so that legal responsibility for the act is avoided, a theory of defense charged is appropriate.' [State v. Rosado, supra] 707, 425 A.2d 108. If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. Id., 707-708, 425 A.2d 108." State v. Fuller, supra, 278, 506 A.2d 556.

The state contends that the trial court was correct in refusing to give the jury instruction on duress because there was no evidence upon which any trier of fact could conclude that a third party's threat of imminent death or serious physical injury forced the defendant to assault Rinaldi. We agree.

In the first place, the defendant's contention that his concern about the alleged threats against himself and his fiancee constituted duress is without merit. " 'The rationale of the defense [of duress] is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question ... [but] rather it is that, even though he had done the act the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.' 1 W. Lafave & A. Scott, Substantive Criminal Law § 5.3a." State v. Rouleau, 204 Conn. 240, 248-49, 528 A.2d 343 (1987). If we accept the defendant's story, the alleged threat of death or imminent physical injury was the result of the April, 1985 incident. This danger was the "harm of greater magnitude" the defendant was ostensibly trying to avoid. None of the threats, however, concerning the April, 1985 incident involving the defendant's fiancee had any remote connection to Rinaldi with whom the defendant's fiancee and the other woman had initially gone to the Grove Street parking lot. The claim that Rinaldi's actions during the Willow Street altercation and the April, 1985 incident were connected is specious.

With respect to the defendant's claim that the victim himself coerced the assault against him, we note that one basic principle constitutes the crux of the defense of duress. " '[I]f there was a reasonable, legal alternative to violating the law, "a chance both to refuse to do the criminal act and also to avoid the threatened harm," the defense will fail. [W. LaFave & A. Scott, Criminal Law, p. 379].' United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634-35, 62 L.Ed.2d980)." State v. Rouleau, supra. Our careful review of the record leads us to conclude that the defense of duress here must fail in every respect. Several witnesses at trial testified that Rinaldi unsuccessfully attempted to retreat once he was confronted by the defendant on Willow Street. The evidence also reasonably supports the conclusion that the defendant not only did not take every opportunity to avoid Rinaldi but, rather, pursued him after stabbing him in the stomach. General Statutes § 53a-14 specifically provides, in pertinent part, that the defense of duress "shall not be available to a person who intentionally or recklessly places himself in a...

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