State v. DeJesus

• Decision Date: 11 June 2002
• Docket Number: (SC 16326)
• Citation: 797 A.2d 1101,260 Conn. 466
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ROBERT DEJESUS

260 Conn. 466

797 A.2d 1101

STATE OF CONNECTICUT v. ROBERT DEJESUS

(SC 16326)

Supreme Court of Connecticut.

Argued November 28, 2001.

Officially released June 11, 2002.

Sullivan, C. J., and Borden, Katz, Palmer and Zarella, Js. Louis S. Avitabile, special public defender, for the appellant (defendant).

Christopher T. Godialis, 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

ZARELLA, J.

The defendant, Robert DeJesus, appeals from the judgment of conviction, following a jury trial, of murder in violation of General Statutes § 53a-54a¹ and conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48.² On appeal, the defendant raises multiple challenges to the validity of his convictions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, Thunder Mongkosilapa and Dennis Alers, who were close friends, sold illegal drugs at 289 Grove Street in Waterbury. The defendant first met the victim, Abraham Garcia, a member of the Latin Kings gang, when Garcia came to the Grove Street address threatening Mongkosilapa in connection with a long-standing dispute. The defendant testified that this dispute eventually led him to believe that the victim had a "green light," or an order to kill him, Mongkosilapa and Alers. Around 12 a.m. on July 28, 1996, the defendant, Mongkosilapa and Alers borrowed a car and drove around the south end of Waterbury. Mongkosilapa drove the car, the defendant sat in the front passenger seat and Alers sat in the backseat behind the defendant. The defendant was armed with a gun that he had purchased on the street more than one month earlier. They drove past the victim, who was standing on the side of East Liberty Street in Waterbury with five other people, and then circled the block. Upon their return, they saw the victim standing alone. Mongkosilapa stopped the car in front of the victim. The defendant then fired one shot after which Alers fired five shots at the victim. A woman who resided nearby found the victim lying motionless on her doorstep.

In the early morning hours of July 28, 1996, Mongkosilapa, Alers and the defendant went to the apartment of Delma Rodriguez, who was Alers' girlfriend. Alers told Rodriguez that he just had killed someone and instructed her to pack her bags to leave. She packed quickly and got into the car with the defendant, Mongkosilapa and Alers. They traveled on back roads to the apartment of Mongkosilapa's sister in Bridgeport.

During the trip, Rodriguez overheard Alers say to either Mongkosilapa or the defendant that "it was crazy, I wet that nigger. I don't know if I bodied him son."³ Rodriguez also overheard the defendant say that his gun had jammed when he attempted to shoot.

The three men then dropped off Rodriguez at the sister's apartment in Bridgeport and went back to Waterbury to return the car. They returned to Bridgeport in another car with two of Rodriguez' female friends. The defendant, Alers, Rodriguez and her two friends then left Bridgeport and headed for New York while Mongkosilapa stayed in Bridgeport. During the trip, Rodriguez overheard Alers say that the defendant, Mongkosilapa and Alers were "in a car, it was [Mongkosilapa] driving, [Alers] was on the passenger's side of [Mongkosilapa] and [the defendant] was in the backseat, and that [the defendant] shot the first shot, but his gun . . . jammed, and he couldn't proceed shooting, and [Alers] did all the other — he shot all the other bullets."

On August 3, 1996, Alers was shot and killed in New York by a New York City police officer who, together with Waterbury police officers, was attempting to arrest Alers in connection with the victim's murder. The defendant gave the police a written statement that same day in which he admitted that he had been the first one to fire a shot. The defendant maintained that he had pointed his gun out of the car window and fired, but that the gun had jammed. The defendant then claimed that he had heard several gunshots and had seen the victim run away screaming before falling to the ground.

At trial, the defendant claimed that he had fired his gun in self-defense. He testified that he had thought that the victim "looked like he was about to pull out a gun," which caused the defendant to fire a "warning shot." The defendant further testified that he was unaware that Alers would subsequently shoot at the victim.⁴

During cross-examination, the defendant testified that he had neglected to tell the police in his statement that the victim looked like he was going to pull out a gun because "[i]t was never asked." Furthermore, the defendant testified that he never had complained to or sought protection from the police regarding the victim's threats because the police were not trustworthy. The defendant did not testify or otherwise state to the police that he actually had seen the victim with any sort of weapon at the time of the shooting. It was undisputed that no weapon was found on or near the victim's body.

Arkady Katsnelson, the state medical examiner, performed an autopsy on the victim's body. Katsnelson determined that the victim had sustained five gunshot entry wounds. Katsnelson testified that, of the five bullets that penetrated the victim's body, only one entered through the front of the body. According to Katsnelson, the other four bullets entered through the back of the victim's torso and legs. Katsnelson testified that it was his opinion that the "cause of death [was] a gunshot wound to the chest with injuries to the [victim's] lung and heart."

The jury found the defendant guilty of murder and conspiracy to commit murder. The defendant filed a motion for a new trial, which the trial court denied. Thereafter, the court rendered judgment in accordance with the jury's verdict and sentenced the defendant to a total effective term of forty-eight years imprisonment. The defendant appealed from the judgment of conviction to the Appellate Court and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Additional facts will be set forth as necessary.

I

We first address the defendant's challenge to the trial court's instructions⁵ on the element of intent. Specifically, the defendant contends that the trial court's reading of the entire definition of intent, as set forth in General Statutes § 53a-3 (11),⁶ improperly permitted the jury to find him guilty of murder if it found that he had the intent to engage in the conduct of shooting a gun without necessarily finding that he specifically had intended to cause the victim's death. The state, on the other hand, argues that the trial court properly instructed the jury on the element of intent, and, therefore, the jury properly was guided in its deliberations. We agree with the state.

The defendant did not object to the court's instructions on the element of intent at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if the following conditions are satisfied: "(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." Id., 239-40. "In the absence of any one of these conditions, the defendant's claim will fail." Id., 240.

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." (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (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.) Id. The defendant's claim fails, however, under the third prong of Golding because there was no violation of his constitutional right to due process and the trial court's instruction did not deprive him of a fair trial.

We begin by reviewing the pertinent legal principles that govern our consideration of the defendant's claim. "When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper." (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).

"[A]n accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993). "It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.. . . [T]he failure to instruct a jury on an element of a crime...