State v. Corchado

• Decision Date: 14 December 1982
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Juan CORCHADO.

Page 427

453 A.2d 427

188 Conn. 653

STATE of Connecticut v. Juan CORCHADO.

Supreme Court of Connecticut.

Argued Oct. 14, 1982.

Decided Dec. 14, 1982.

Francis T. Mandanici, Asst. Public Defender, with whom, on the brief, were Jerrold H. Barnett, Public Defender, and Herbert J. Bundock, Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A Browne, State's Atty., and Frank S. Maco, Asst. State's Atty., for appellee (state).

Before SPEZIALE, C.J., and PETERS, HEALEY, PARSKEY and GRILLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant, Juan Corchado, was tried by a jury and found guilty of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1). He was sentenced to a term of not less than five years and not more than ten years. In this appeal, the defendant alleges three claims of error: ¹ (1) that the court erroneously instructed the jury on the law of self-defense; (2) that the court erred in denying his motion for a judgment of acquittal in that the verdict was contrary to the law and the evidence; and (3) that the court erred by not instructing the jurors that they could infer that the defendant was innocent because he summoned the police and surrendered to them.

From the evidence presented at trial the jury could have found the following facts: The defendant lived at 1196 State Street in Bridgeport, where he was the superintendent of the building. The defendant's job required him to collect and to carry rent money. For his protection he owned a gun for which he had a permit. He had been separated from his wife for five years. In the interim, he had lived with another woman, Luz Bosco, for approximately four to five years. He had two children by her whom he raised along with a third child of Bosco's. At the time of the incident, Bosco was living at 29 Russell Street in Bridgeport.

The incidents leading directly to the victim's death occurred on November 17, 1979. The defendant had been in Hartford on that day. He left his gun at Bosco's house on Russell Street because two of his guns had previously been stolen from his State Street residence. Upon returning to Bosco's house at approximately 11 p.m., he noticed a car owned by Raphael Ventura parked outside. The defendant suspected that Ventura had been seeing Bosco and had talked to him about it on a few previous occasions. When he knocked on the door it took Bosco a few moments before she opened it. She seemed upset and nervous. After seeing Ventura's coat in the house, the defendant went outside. He saw Ventura, who had gone out the back door, trying to get into his car. The defendant approached Ventura and asked him whether he had been "fooling around" with Bosco. Ventura then pulled out a gun and pointed it at him. The defendant turned around and ran back into the house. Once inside, Bosco grabbed hold of him and told him not to go outside again. He pushed her away and started looking for his gun, which Bosco had hidden under her mattress. Shortly thereafter, he found his gun and his shoulder holster, which he put on underneath his coat. At this point, Bosco managed to calm him down. They sat down, had coffee and talked. Neither the defendant nor Bosco called the police.

Within a half hour after Ventura had first pointed a gun at the defendant, the defendant decided to go back to his house, but he told Bosco that he was first going to get some beer out of his car to leave for Bosco's brother. By that time he thought Ventura had left. When he went outside, however, he heard Ventura call him. Ventura was seated in his car which was parked in the middle of the road, about twenty to thirty feet from the front of Bosco's house, with its lights on and the motor running. The defendant went over to the car and asked Ventura if he was fooling around with Bosco. Ventura did not answer but merely made a "mean smile." The defendant then slapped Ventura in the face with the back of his hand through the driver's side window which was open. Ventura then took out a gun with his right hand pulled it across his chest and pointed it at the defendant. ² At the same time, he began to get out of the car. Upon seeing Ventura's gun, the defendant, who testified that he knew he was going to be shot, immediately pulled out his gun and fired a shot at Ventura. At this point, Bosco, who had been observing the situation, went inside to try and contact the police. Ventura fell back after being shot and then started to get out of the car again. The defendant did not see whether Ventura still had his gun, although he testified that he felt he did, and proceeded to shoot him three or four more times. ³ Ventura managed to get out and to walk to the rear of the car where he fell.

The defendant then went inside Bosco's house where he emptied his gun and telephoned the police. When the police arrived, he gave himself up and stated that the shooting was in self-defense. He was taken to the police station where he gave two statements. Bosco also went to the police station to give a statement.

We turn to the defendant's claim that the court erred in its instructions to the jury on the law of self-defense and provocation. He argues that error was committed because the court gave certain instructions pursuant to a request to charge submitted by the state ⁴ which was substantially different from the Connecticut law on this matter. He points to those instructions he claims are erroneous, setting out that the court told the jury that "any direct personal assault made in anger by the accused, upon the deceased, of course, renders the accused the aggressor, and when he kills the person assailed, precludes him from pleading self defense"; that "a person is the aggressor when he leaves a quarrel to go to his home to arm himself, and then returns to the scene of the quarrel and kills the other person"; ⁵ and that homicide is justifiable when the defendant "is without fault and is attacked and reasonably believing that he is in danger of death or great bodily harm kills his attacker to defend himself." Additionally, the defendant claims that "even if the no fault law and other contentions requested by the Prosecution and given to the jury by the Court" had been the common law of this state, it is "axiomatic that the Connecticut statutes now take precedence over the common law."

The state, referring to the instructions objected to, together with instructions which immediately followed, states that "[t]he above portion ⁶ of the jury instructions while not in the exact language of the statute [General Statutes § 53a-19] certainly did convey its meaning and its application to this case to the jury." Moreover, it claims that the instructions "met the test of being correct in law and sufficient to guide the jury." It also claims that because there is "no discernible constitutional issue properly encompassed by this appeal," the test to be applied to the court's instruction, which it agrees must be considered as a whole, is whether it is "reasonably probable" that the jury were misled by the attacked instructions. See State v. Williams, 182 Conn. 262, 268, 438 A.2d 80 (1980); State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974). Referring to State v. Shaw, 185 Conn. ---, 441 A.2d 561 (1981), the state also disagrees with the defendant's claim that the statutes on self-defense take precedence over the common law. It argues that where jury instructions are based on a statute, the statute "undiluted" is not all that is to be given the jury, but also common law or materials from texts. ⁷ We find error in the court's instructions on self-defense.

We begin our analysis by determining the proper standard of review to be applied to the court's instructions. "In appeals not involving a constitutional question the court must determine whether it is reasonably probable that the jury were misled; State v. Ralls, supra; State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288 (1970); Penna v. Esposito, 154 Conn. 212, 215, 224 A.2d 536 (1966); Allard v. Hartford, 151 Conn. 284, 292, 197 A.2d 69 (1964); and, in appeals involving a constitutional question, whether it is reasonably possible that the jury were misled. State v. Annunziato, 169 Conn. 517, 532, 363 A.2d 1011 (1975); see also Gilbert v. California, 388 U.S. 263, 268, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1966); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, reh. denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967)." State v. Williams, 182 Conn. 262, 268, 438 A.2d 80 (1980).

We have said that "[a] fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). This fundamental constitutional right includes proper jury instructions on the elements of self defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. See General Statutes § 53a-12(a)." State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982).

"To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866 cert. denied, 444 U.S. 935, 100 S.Ct. 283, 62 L.Ed.2d 194 (1979); State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Crawford, 172 Conn. 65, 69, 372 A.2d 154 (1976); State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974)." State v. Williams, supra, 182 Conn. at 267-68, 438 A.2d 80. In considering the charge as a whole we eschew critical dissection; see, e.g., State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); thereby not...