State v. Colon, 13022

• Decision Date: 19 June 1995
• Docket Number: No. 13022,13022
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Luis COLON.

Page 247

657 A.2d 247

37 Conn.App. 635

STATE of Connecticut v. Luis COLON.

No. 13022.

Appellate Court of Connecticut.

Argued Jan. 3, 1995.

Decided April 25, 1995.

Certification Denied June 19, 1995.

Neal Cone, Asst. Public Defender, for appellant (defendant).

Mary Elizabeth Baran, Asst. State's Atty., with whom, on brief, was Michael Dearington, State's Atty., for appellee (State).

Before LAVERY, SCHALLER and HENNESSY, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault of an employee of the department of correction in violation of General Statutes § 53a-167c(a)(1). On appeal, the defendant claims that (1) the instructions on the jurors' duties caused unfair prejudice, (2) during its instructions on the credibility of witnesses, the trial court unfairly emphasized the defendant's interest in the outcome of the case, (3) the trial court's instructions on reasonable doubt were improper, (4) the trial court improperly gave a Chip Smith charge, at least in the language used and under the circumstances of this case. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On September 17, 1992, state correction officer Mohammed Redzep was assaulted by a group of inmates at the Manson youth institution in Cheshire. Redzep was twenty-four years old and had been employed by the state as a correction officer for just over three years. While in uniform, Redzep was bringing inmates back into the institution from the outside recreation area at about 7:20 p.m., when he observed a group of inmates huddled in a corner of the dayroom. Noting that this was suspicious conduct on the part of the inmates, he told correction officer Freida Rogers to keep an eye on that group of inmates.

Redzep resumed his duties, but moments later saw Rogers talking to the same group of inmates. Redzep approached them and instructed the inmates to disperse. One of the inmates, Joey Jones, said, "Okay, let's set it off," and he tried to punch Redzep. The officer grabbed Jones under his arm. Redzep was then assaulted from behind and knocked to the ground facedown. The officer was kicked and punched from several directions. He was struck on his head and all over his body. Being facedown, he could not see his assailants. He was, however, able to determine that there were more than two assailants because he was being hit and kicked from several directions.

Rogers called an emergency code and all available correction officers were summoned to the scene. Shortly thereafter, Redzep was taken by ambulance to St. Mary's Hospital in Waterbury. John Magaldi, a physician, examined him and found that he had sustained a mild concussion, a lumbro-sacral strain and abrasions.

Redzep was able to identify only two of the inmates involved in the attack, Gregorio Pizzaro and Jones. There were two other corrections officers, however, who were able positively to identify the others involved, including the defendant.

Rogers was standing close to Redzep and the inmates when the incident took place. She identified all six of the inmates involved, including the defendant. She saw the defendant throwing punches at Redzep. She attempted to get the inmates away from Redzep, but was unsuccessful. She then went to the office and called an emergency code. A number of officers responded to the code. Rogers was instructed by her supervisor immediately to identify all of the inmates who were involved. She did so.

Correction Officer Rafael Delvalle was on duty as a "rover" at the time of the incident. His assignment was to walk around the institution, checking both C and D blocks. He was in D block when the incident took place and observed five or six inmates, including the defendant, assaulting Redzep. He saw the defendant kick Redzep. The emergency code was set off by Rogers subsequent to Delvalle's arrival on the scene.

Correction Lieutenant Michael Bernier testified that he considered himself an expert on gangs in the prisons and that he did all of the staff training on gang related issues. He said that he considered this incident to be gang related. He testified that the defendant was known to be a member of the Latin Kings gang and that the five other inmates involved in the attack were members of Los Solidos gang. He testified that members of different gangs cooperate at times.

I

The defendant first claims that the trial court's instruction concerning the jurors' duties was unfairly weighted in favor of conviction. The instruction was: "The defendant justly relies on you to carefully consider his claims. To carefully consider all the evidence and to find him not guilty if the facts and the law require such a verdict. He rightfully expects fair and just treatment at your hands. The state of Connecticut and its people, on the other hand, look to you as sworn officers of this court to deal fairly, firmly, honestly and justly as strong-minded persons, with the interests of the state in your hands as an arm of the court to aid in upholding the law of the land and to render a verdict of guilty if the facts and the law require such a verdict. It is proper for me to say to you that you are not to be concerned with the punishment to be inflicted in this case if a conviction occurs. That is a matter exclusively within the province of the court under the limitations and restrictions imposed by the statute. You are to find the facts of guilt or innocence uninfluenced by the probable punishment which follows convictions." The defendant failed to object to this language at trial and thus seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The defendant argues that the language referring to the jury as an arm of the court in connection with a conviction presents an unbalanced and prejudicial instruction. This claim does not meet the second prong of Golding, as it is not a constitutional issue. Our Supreme Court has held that such language (1) did not raise an issue of constitutional dimension and (2), even if it was considered to have raised such an issue, taking the instructions as a whole, there was no reasonable possibility that the jury was misled into believing it would be performing its duties only if it voted to convict. State v. Francis, 228 Conn. 118, 134, 635 A.2d 762 (1993); State v. Walton, 227 Conn. 32, 62, 630 A.2d 990 (1993). The trial court's instructions in the present case are almost identical to those upheld in Walton and Francis. The trial court's charge on the jurors' duties was not improper.

II

The defendant next claims that the court's jury instructions on the credibility of witnesses, which included references to his interest in the outcome of the trial, deprived him of a fair trial and impermissibly burdened his right to testify in his own defense.

The jury was given the following charge: "In this case, the accused took the stand and testified. In weighing the testimony of any accused person, you should apply the same principles by which the testimony of other witnesses is tested. And that necessarily involves a consideration of his interest in the outcome of this case. You will consider the importance to him of the outcome of the trial. An accused person, having taken the witness stand, stands before you then just like any other witness. He is entitled to the same consideration and must have his testimony measured in the same way as any other witness, including, however, his interest in the verdict which you are about to render."

After the jury had been deliberating for about one and one-half days without reaching a verdict, the court reinstructed it on three areas, including the credibility of witnesses. In this portion of the court's charge, there was no specific mention of the defendant's interest in the outcome of the case.

The defendant, although acknowledging that "fair comment" on the intent of the accused is permitted, claims that the trial court's instructions exceeded "fair comment." The courts of this state have consistently approved the use of this instruction when the defendants have exercised their right to testify. Both this court and our Supreme Court have rejected the claim that such an instruction violates a defendant's constitutional rights to a fair trial or due process. State v. Williams, 220 Conn. 385, 396-97, 599 A.2d 1053 (1991).

In Williams, our Supreme Court rejected a challenge to the trial court's mentioning the defendant's interest on three different occasions. The court concluded that the continual emphasis was to ensure that the jury evaluate the defendant's testimony the same as that of other witnesses. "We have repeatedly approved the use of similar language and do not find its use here unduly repetitive or transcending the bounds of even-handedness." Id., at 397, 599 A.2d 1053.

Similarly, in this case, the instruction used by the trial court is couched in the same commonly accepted language that has been used to ensure that the jury fairly weigh the testimony of witnesses, including that of the defendant. The court correctly instructed the jury that it should consider the defendant's testimony in light of his interest in the outcome. The trial court's use of this instruction that has been approved repeatedly did not violate the defendant's right to a fair trial.

III

The defendant next challenges the trial court's instructions on reasonable doubt. The court's instructions were: "Now the phrase reasonable doubt has no technical or unusual meaning. You can arrive at the true meaning of it by emphasizing the word reasonable. A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or surmise. It is not a conjecture or a fanciful doubt. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubts. Nor is it a doubt suggested by the ingenuity of counsel or a juror which is not...