State v. DeBarros

• Decision Date: 11 July 2000
• Docket Number: (AC 19244)
• Citation: 755 A.2d 303,58 Conn. App. 673
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JONATHAN DEBARROS

58 Conn. App. 673

755 A.2d 303

STATE OF CONNECTICUT v. JONATHAN DEBARROS

(AC 19244)

Appellate Court of Connecticut.

Argued October 26, 1999.

Officially released July 11, 2000.

O'Connell, C. J., and Spear and Mihalakos, Js.¹ John R. Gulash, Jr., for the appellant (defendant).

Judith Rossi, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Robin Lipsky, assistant state's attorney, for the appellee (state).

Opinion

SPEAR, J.

The defendant, Jonathan DeBarros, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a),² attempt to commit murder in violation of General Statutes §§ 53a-49 (a)³ and 53a-54a and assault in the first degree with a firearm in violation of General Statutes § 53a-59 (a) (5).⁴ The defendant claims that the trial court improperly (1) instructed the jury on the element of intent, (2) excluded evidence that was relevant to his theory of self-defense and (3) refused to instruct the jury as he requested on self-defense and a lesser included offense. We reverse the judgment of the trial court and order a new trial.

The following facts and procedural history are relevant to this appeal. On the afternoon of Sunday, October 13, 1996, the victim, Jermaine Lewis, and a group of fifteen to twenty teenagers were playing basketball outside the North End Recreation Center in Waterbury. The defendant, a regular participant in such Sunday afternoon games, arrived at the recreation center soon after the victim. The victim approached the defendant and the two walked to a wall at the far end of the basketball court where they stood and talked.

The conversation between the victim and the defendant erupted into an argument. As a crowd began to gather, the defendant pulled a gun from the inside of his coat pocket, aimed it at the victim's upper body and fired several shots. The victim was hit by a bullet and fell to the ground. As the victim was lying in a fetal position, the defendant stood over him and resumed firing until the gun was empty.⁵

Sensing that the defendant's gun had no more bullets, the victim's friend, Scott Nash, ran toward the defendant. The defendant took a step back, pulled another gun from the inside of his coat and fired three shots at Nash that missed. Nash turned around and started running away as the defendant fired more shots, three of which struck Nash. The defendant then got on a bicycle and rode away. One of the youths in the crowd ran to a telephone and called 911.

Emergency medical personnel took Lewis to a hospital, where he was pronounced dead. As Nash was being escorted to the hospital by his friend, Edward Griffin, a police officer patted down both teens and found no weapons on either of them. At the hospital, Nash was treated for a collapsed lung and gunshot wounds.⁶

The defendant was arrested on the day of the shooting and taken to the police station for questioning. The defendant was informed of his Miranda⁷ rights, signed a waiver of those rights and gave the police a signed statement recounting the shooting. The defendant gave, in relevant part, the following account of the events: "[Nash] call[ed] me over to where they were standing, when I walked over, [Nash] started talking to me. While [Nash] was talking to me [the victim] started yelling at me.... [A]ll the time he kept his hands in [the] pocket of his hoodie. I started getting real nervous because I thought [the victim] had a gun in his pocket. When [the victim] started to take his hands out of his pocket I pulled out the smaller gun, of the two guns I was carrying.... When I took my .25 cal gun out, I shot [the victim] once, but then kept on shooting until the gun was empty. After [the victim] fell, [Nash] knew my .25 cal was out of bullets so he started coming at me. That's when I pulled out the nine millimeter and fired twice at [Nash]."

The defendant was charged with murder, attempt to commit murder and assault in the first degree with a firearm. At trial, he claimed self-defense.⁸ To support his claim that he reasonably believed it was necessary to defend himself, he testified that one week before the shooting, as he was visiting Lewis at his home, he called Lewis over to his car, and Lewis "pulled out a gun and told [him] to get the fuck out of here or he was going to shoot the car." The defendant also testified that just before he shot Lewis, he saw him with a gun.

The defendant then offered testimony from Ray Dixon, who was present during the shooting. While Dixon did not testify that he had seen Lewis with a gun, he did state that he had seen the state's witness, Edward Griffin,⁹ grab "something" from the body of Lewis immediately after the shooting. The defendant thereafter sought to introduce testimony from a police officer that Griffin and Lewis' brother, Jason Lewis, were both arrested while in possession of a handgun three hours after the shooting.¹⁰ The state objected to the proffered testimony. In response to the state's objection, the defendant argued that the evidence was relevant to his claim of self-defense.¹¹ The trial court excluded the officer's testimony, concluding that "it's too remote in time, it's unconnected to this case. It would be confusing for the jury, it's immaterial, it's irrelevant. It's entirely too tenuous."

During its instructions, the court charged the jury on the elements of murder. It read the entire statutory definition of intent contained in General Statutes § 53a-3(11), ¹² including a portion that does not apply to this case. The inapplicable portion of the statute provides in relevant part that "[a] person acts intentionally ... when his conscious objective is ... to engage in such conduct...." General Statutes § 53a-3 (11). In instructing on attempt to commit murder, assault in the first degree with a firearm and several lesser included offenses, the court referred back to the inapplicable portion of the definition of intent seven times. Thereafter, upon request for clarification by the jury on intent and attempt to commit murder, the court twice repeated the definition of intent and included the portion that is inapplicable to this case.

During its instructions on self-defense, the court refused to instruct the jury in the manner that the defendant specifically requested. The court also refused to instruct the jury on the lesser included offense of manslaughter in the second degree as requested by the defendant. The defendant was subsequently convicted of all charges, and this appeal followed.

I

We first address the defendant's claim that the trial court improperly instructed the jury on the element of intent with respect to all of the charges. Specifically, the defendant claims that the trial court's reading to the jury of the entire definition of intent set out in § 53a-3 (11) permitted the jury to find him guilty of specific intent crimes without necessarily finding that he intended to cause a specific result, but on finding instead only that he intended to engage in conduct that caused a result. We agree.

The defendant did not object to the court's instruction at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book § 60-5. In Golding, our Supreme Court held that "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. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) State v. Golding, supra, 239-40.¹³

The defendant's claim satisfies the first two prongs of Golding because the record is adequate for review and "[a]n improper instruction on an element of an offense ... is of constitutional dimension.... State v. Austin, [244 Conn. 226, 235, 710 A.2d 732 (1998)]." (Internal quotation marks omitted.) State v. Maia, 48 Conn. App. 677, 686, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998). "Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged... including intent where intent is one of those elements." (Internal quotation marks omitted.) State v. Austin, supra, 235.

The defendant's claim also satisfies the third prong of Golding because it is clear from the record that a constitutional violation exists. In addition to murder, which requires a specific intent, the defendant was charged with attempt to commit murder and assault in the first degree with a firearm. "[T]he specific intent to kill is an essential element of the crime of murder [and attempt to commit murder]." (Internal quotation marks omitted.) Id. Additionally, the specific intent to cause physical injury is an essential element of the crime of assault in the first degree. "To act intentionally, the defendant must have had the conscious objective to cause the death"; id.; and, with respect to assault, physical injury to the victim.

Intent to engage in proscribed conduct that results in death and physical injury is not sufficient. In instructing the jury on intent, however, the court read the entire statutory definition contained in § 53a-3 (11), including a reference to intent to engage in proscribed conduct.¹⁴ As our Supreme Court has previously stated "[i]t is improper for the trial court to read an entire statute to a jury when the pleadings or the evidence support a violation of only a portion of the statute...." (...