State v. Collazo

• Decision Date: 21 July 2009
• Docket Number: No. 28878.
• Citation: State v. Collazo, 115 Conn. App. 752, 974 A.2d 729 (Conn. App. 2009)
• Parties: STATE of Connecticut v. Ulises COLLAZO.
• Court: Connecticut Court of Appeals

974 A.2d 729

115 Conn.App. 752

STATE of Connecticut v. Ulises COLLAZO.

No. 28878.

Appellate Court of Connecticut.

Argued April 23, 2009.

Decided July 21, 2009.

James B. Streeto, assistant public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and David R. Shannon, assistant state's attorney, for the appellee (state).

DiPENTIMA, GRUENDEL and PELLEGRINO, Js.

PELLEGRINO, J.

The defendant, Ulises Collazo, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59(a)(5), three counts of assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a)(1), three counts of assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59(a)(4), one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59(a)(1), and one count of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59(a)(4).¹ On appeal, the defendant claims that the trial court improperly (1) failed to order an evaluation of his competency to stand trial and to conduct an independent inquiry as to the need for such evaluation, (2) instructed the jury that it could find him guilty as either a principal or an accessory and (3) denied his Batson² challenge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 30, 2004, Rudy Ortiz, the president of the Danbury Latin Kings, was involved in a fight with several young men from Stamford. Ortiz was angry about the fight and wanted revenge. Ortiz crafted a plan to seek his revenge and arranged for Sabrina Colon, who knew one of the men from Stamford, Keven Louis, to invite the Stamford men to Danbury. On August 2, 2004, five men from Stamford, Louis, Cliff Certillian, Kenny Poteau, Herbie Servil and Stanley Bruno, arrived at a basketball court at Eden Drive in Danbury. Waiting in the bushes to ambush the five Stamford men were Ortiz, Juan Macias, Luis Guzman, Alex Garcia, the defendant and a few others. As the five Stamford men walked onto the basketball court, Macias and the defendant followed them. After a prearranged signal, the defendant threw the first punch, and the remaining Danbury men ran out from the bushes to continue the assault. Gunshots were heard.

Garcia had a nine millimeter assault rifle and shot Louis once in the leg and at least once more in the abdomen. Servil suffered twelve to thirteen separate stab wounds to his back, abdomen and right arm, one of which damaged his liver. Bruno ran off but was either shot or stabbed in the back, resulting in a collapsed lung. The defendant elected a trial by jury and was tried together with Garcia.³ The jury found the defendant guilty of seven counts of assault in the first degree as an accessory and two counts of conspiracy to commit assault in the first degree. He was sentenced to a total effective term of thirty-five years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant's first claim is that the court denied him due process of law by improperly denying his counsel's request for a competency evaluation, pursuant to General Statutes § 54-56d,⁴ and by failing to conduct an independent inquiry to determine the need for such an evaluation. We disagree.

The very incident that the defendant claims denied him due process occurred in the Danbury Superior Court on April 13, 2006, when he was before the court for a status conference involving this matter and an additional unrelated criminal matter. See State v. Collazo, 113 Conn.App. 651, 967 A.2d 597 (2009). On that date, attorney Robert Field represented the defendant in both cases. The defendant, at that status conference, informed the judge that he did not want Field to represent him. Field informed the court that the defendant was very contentious, would not listen to him, would yell at him, told him that he did not know what he was doing and threatened to file a slander lawsuit against him. Field suggested that the defendant might have bipolar disorder or intermittent explosive disorder and moved for a competency examination. After the court questioned the defendant, it denied the request for a competency examination. The court, however, appointed new counsel to represent the defendant.

The defendant argues here, as he did in State v. Collazo, supra, 113 Conn.App. at 651, 967 A.2d 597, that he was denied due process because the court denied his request for a competency examination and failed to conduct an independent inquiry to determine the need for such an evaluation. After its review of the April 13, 2006 transcript, this court observed in its opinion that the attorney-client relationship had broken down, the defendant did not want Field to represent him and that the defendant responded appropriately to the court's questions and presented himself as being able to think reasonably and lucidly. Id., at 663-64, 967 A.2d 597. This court concluded in Collazo that the trial court did not abuse its discretion by denying the defendant's motion for a competency examination. Id., at 665, 967 A.2d 597.

We will not conduct an additional analysis of the defendant's claim, as it has been decided previously. "The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality.... Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.... For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009); see also State v. Jones, 98 Conn. App. 695, 704-706, 911 A.2d 353 (2006) (res judicata barred defendant from raising sufficiently similar claim previously decided), cert. denied, 281 Conn. 916, 917 A.2d 1000 (2007). This claim was raised previously, fully and fairly argued in this court and a decision was rendered. Moreover, once the defendant was provided with new trial counsel, no additional claims as to his competency were ever raised. Neither his new trial counsel, nor the judge presiding over his criminal trial, raised any issue regarding the defendant's competency. Accordingly, this claim fails.

II

The defendant next claims that the court improperly instructed the jury that it could find him guilty as either a principal or an accessory on the counts of assault in the first degree. The defendant did not raise his claim in the trial court and did not object at trial to the court's instruction on principal liability. The defendant contends, however, that the claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree that the record is adequate for review and that the defendant raises a constitutional claim with regard to his rights to present a defense and to notice of the charges against him. We do not agree, however, that the claimed constitutional violation clearly exists because we conclude that the defendant waived this claim at trial. This claim, therefore, fails under the third prong of Golding.

"Waiver is an intentional relinquishment or abandonment of a known right or privilege.... It involves the idea of assent, and assent is an act of understanding. ... The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct.... In order to waive a claim of law it is not necessary ... that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy.... Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court's order, that party waives any such claim....

"Under [State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823], a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial....

"A defendant in a criminal prosecution may waive one or more of his or her fundamental rights.... In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial.... In Fabricatore, our Supreme Court cited with approval opinions of this court holding that a defendant who has waived a constitutional right at trial cannot prevail on that claim on appeal. In [State v. Cooper, 38 Conn.App. 661, 670, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S.Ct. 1837, 134 L.Ed.2d 940 (1996), this court] held that a defendant could not satisfy the third prong of Golding where he had implicitly waived at trial a challenge to the...