State v. Ciccio

• Decision Date: 10 June 2003
• Docket Number: (AC 22088).
• Citation: 77 Conn. App. 368,823 A.2d 1233
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. SALVATORE CICCIO.

77 Conn. App. 368

823 A.2d 1233

STATE OF CONNECTICUT v. SALVATORE CICCIO.

(AC 22088).

Appellate Court of Connecticut.

Argued February 6, 2003.

Officially released June 10, 2003.

Dranginis, West and Hennessy, Js.

Martin Zeldis, senior assistant public defender, with whom were April E. Brodeur, certified legal intern, and, on the brief, Jennifer M. Barry, certified legal intern, for the appellant (defendant).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Vernon D. Oliver, assistant state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant, Salvatore Ciccio, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On appeal, the defendant claims that the trial court improperly (1) instructed the jury as to the use of uncharged misconduct for purposes of intent and identity, and (2) admitted evidence of (a) a prior felony conviction and (b) an oral statement that he made to a state police trooper. He also claims that (3) he was deprived of his constitutional right to a unanimous verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of February 28, 1998, a group of young people had gathered at the Robotham home in Burlington to celebrate William Robotham's return from Navy boot camp. Invitations to the party were extended by word of mouth. Although most of the people at the party were younger than twenty-one, they were consuming alcoholic beverages, including beer and liquor. Some of them were smoking marijuana. Nineteen year old Anthony Salmoiraghi, the victim, was at the party and had consumed a significant quantity of beer and liquor.¹

Sometime during the evening, Christopher Willard, the defendant's stepson, arrived at the party with his friend, David Hitchiner. For reasons that are not clear, Michael Robotham, William Robotham's brother, disliked Hitchiner or Willard. He slapped Hitchiner and told him that he and Willard were not welcome at the party and had to leave. Shortly after the two unwelcome young men left the party, people inside the Robotham home heard the sound of glass breaking. Michael Robotham found broken beer bottles at the end of the driveway. He and others assumed that Willard and Hitchiner had broken the glass in the driveway because they had been asked to leave. The Robotham brothers and their friends decided to retaliate against Hitchiner and Willard by going to Willard's home and breaking beer bottles in the driveway. The Robotham group took a garbage bag full of beer bottles and drove to George Washington Turnpike in Burlington, where Willard lived with his family, including his mother, Susan Ciccio, and her husband, the defendant.

Prior to the arrival of the Robotham group, Willard and Hitchiner entered the house, where a group of friends of Jason Willard, Christopher Willard's brother, had gathered. Christopher Willard and Hitchiner told the group what had happened at the Robotham house. The Willard group was upset over the incident. When the Robotham group arrived at the defendant's house at about 11:15 p.m., they exited their vehicles, walked up the driveway, broke beer bottles and created a disturbance in front of the house. The Willard brothers went outside with their friends to confront the Robotham group. There was conflicting testimony as to the number of people, ranging from six to twenty-five, in the yard and driveway. Accusations and insults were exchanged; arguments and fights ensued. Keith Ferreira, a member of the Robotham group, and Christopher Willard engaged in a fight.

Prior to Christopher Willard's return from the Robotham residence, the defendant and Susan Ciccio had retired for the evening. The defendant was awakened by shouts from the lower level of the house. Susan Ciccio exited the house in an effort to stop the disturbance. The defendant followed her when he heard screaming and assumed that his wife had been injured.² The defendant testified that he took a baseball bat into the front yard and was holding it in front of him with both hands in an effort to push people away.

The defendant also attempted to intervene in the fight between Christopher Willard and Ferreira. When Salmoiraghi saw the defendant, he was holding a cylindrical wooden object³ and confronting Ferreira. Salmoiraghi spoke to the defendant.⁴ The defendant testified that Salmoiraghi then charged him and that he was fearful of the larger, younger man. He also testified that he had been holding the bat, midshaft, in his right hand, but he raised it in front of him with both hands to protect himself from Salmoiraghi. The bat was knocked out of his hand and hit Salmoiraghi. Witnesses, however, saw the defendant swing the bat, with a "choked up hold," at the victim and heard a cracking sound. After he had struck Salmoiraghi, witnesses also heard the defendant say, "Oh, yeah."

Salmoiraghi fell to the ground unconscious and had to be assisted by his friends, who took him to the University of Connecticut Medical Center's John Dempsey Hospital. Salmoiraghi's jaw was broken in three places and required surgical repair by means of internal fixation. According to Thomas J. Regan, the emergency medicine physician who examined the victim, Salmoiraghi's injury was the result of a direct blow of significant force, not an accidental hit.⁵

After he hit Salmoiraghi, the defendant was shocked and dazed. He left the scene and walked nine miles to his father's home in Southington. He returned home the next day, but could not recall details of the night before. He testified that he was in a haze for two weeks. The defendant went to the police station on March 1, 1998, and gave a written statement. On April 5, 1998, Jeffrey Keegan, a state police trooper, arrested the defendant. Keegan testified that during a conversation with the defendant, he asked the defendant what he was thinking at the time he hit Salmoiraghi. The defendant replied that he could have killed Salmoiraghi if he had wanted to do so. The defendant's reply does not appear in Keegan's report of the arrest.

The defendant was charged with assault in the first degree in violation of § 53a-59. The case was tried to a jury in March, 2001. After the jury convicted the defendant of violating § 53a-59 (a) (1), he was sentenced to fifteen years in prison, suspended after a mandatory five year term, and five years of probation. The defendant appealed.

I

The defendant's first claim is that the court improperly instructed the jury that it could find that he had the requisite intent to commit assault in the first degree and that he was the person who committed the assault on Salmoiraghi on the basis of certain uncharged misconduct, namely, that he allegedly possessed and grew marijuana. In support of his claim that the instruction was improper, the defendant has argued that he denied the misconduct, there was no evidence to support the alleged misconduct and the misconduct was not related to the charge of assault in the first degree.

Before we consider the defendant's claim of an improper jury instruction, we must first determine whether it is reviewable. The following facts are relevant to our determination. Both the prosecutor and defense counsel submitted requests to charge, but neither request contained an instruction with regard to prior uncharged misconduct.⁶ At the conclusion of the presentation of evidence, the court reviewed its proposed instruction with both counsel. On the record, the court asked the prosecutor: "Evidence of prior misconduct of the defendant, his admission that he possessed and grew marijuana? You want that?" The prosecutor responded in the affirmative. Defense counsel did not object or say anything in response to the court's question. When the court instructed the jury, it gave a misconduct charge. Defense counsel did not take an exception to the court's instruction. Because he did not preserve the record for our review, the defendant has asked this court to review his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),⁷ or the plain error doctrine. See Practice Book § 60-5.

The record is adequate for our review. Whether the defendant's claim is of constitutional magnitude requires a closer examination, as the defendant claims that the court's instruction deprived him of his constitutional right to due process of law, in part, because there was no evidence to warrant a misconduct charge. The state has argued that the claim is not one of constitutional dimension, but instead is an evidentiary claim. We agree with the defendant.

"It is clear that [t]he trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence. State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972) ...." (Internal quotation marks omitted.) State v. Campbell, 225 Conn. 650, 659, 626 A.2d 287 (1993); see also State v. Santangelo, 205 Conn. 578, 594, 534 A.2d 1175 (1987); State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985); State v. Joyce, 45 Conn. App. 390, 402, 696 A.2d 993 (1997), appeal dismissed, 248 Conn. 669, 728 A.2d 1096 (1999). A court may not permit the jury to draw an inference material to the verdict from facts not in evidence. Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975). Because the basis of the defendant's claim is, in part, that the court gave an instruction about which there was no evidence, the second prong of Golding has been met; see footnote 7; and we will review the defendant's claim. See State v. Samuels, 75 Conn. App. 671, 693, 817 A.2d 719 (2003) (first two requirements of Golding involve determination of whether claim is reviewable).

We will now turn our attention to the...