State v. Fabricatore, No. 17492.

• Court: Supreme Court of Connecticut
• Writing for the Court: Norcott
• Citation: 281 Conn. 469,915 A.2d 872
• Parties: STATE of Connecticut v. Angelo FABRICATORE.
• Docket Number: No. 17492.
• Decision Date: 27 February 2007

915 A.2d 872 281 Conn. 469 STATE of Connecticut
v.
Angelo FABRICATORE. No. 17492. Supreme Court of Connecticut. Argued November 20, 2006. Decided February 27, 2007.

[915 A.2d 873]

Todd Bussert, New Haven, for the appellant (defendant).

[915 A.2d 874]

Timothy J. Sugrue, senior assistant state's attorney, with whom were Robert J. Scheinblum, senior assistant state's attorney, and, on the brief, David I. Cohen, state's attorney, for the appellee (state).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

NORCOTT, J.

281 Conn. 471

The defendant, Angelo Fabricatore, appeals, following our grant of certification,¹ from the judgment of the Appellate Court affirming the trial court's judgment of conviction,² rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61(a)³ and breach of the peace in violation of General Statutes (Rev. to 2001) § 53a-181(a)(1).⁴ State v. Fabricatore, 89 Conn.App. 729, 745, 875 A.2d 48 (2005). The sole issue in this appeal is whether the Appellate Court properly rejected the defendant's claim that the trial court's self-defense instruction as it pertained to the duty to retreat constituted harmful error. Id., at 742, 875 A.2d 48. We affirm the Appellate Court's judgment on the alternate ground that the defendant expressly waived this claim at trial.

281 Conn. 472

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found and the relevant procedural history. "On September 15, 2001, the victim, Felix Gonzales, and Laura Montanez and Raymond Vasquez were fishing at Harbor Drive Park in Stamford. While Gonzales and Vasquez were sitting on a bench, the defendant approached the two men from behind. The defendant grabbed Vasquez around the neck. Gonzales told the defendant to stop choking Vasquez, and a fight ensued. Several witnesses testified that the defendant `danced' around Gonzales with his fists raised.

"Although it is not clear what was said or if there was yelling, the verdict allows us to assume that the jury found that the defendant hit Gonzales first. Gonzales, who fell to the ground after being hit by the defendant, sustained a broken nose, bruising and a lost tooth. The defendant received a cut on his lip. Gonzales was given a summons and was taken to a hospital for treatment. The defendant was arrested at the scene.

"The defendant was charged with assault in the third degree in violation of § 53a-61 and breach of the peace in violation of § 53a-181(a)(1). After a jury trial, the defendant was convicted of both charges." Id., at 732, 875 A.2d 48. The

915 A.2d 875

defendant was sentenced to eighteen months imprisonment, suspended after time served, followed by two years of probation. Id., at 743, 875 A.2d 48. The defendant appealed from the trial court's judgment of conviction to the Appellate Court, claiming, inter alia, that the trial court improperly had: (1) instructed the jury on the requirements of self-defense; and (2) remanded the defendant into custody pending sentencing.⁵ Id., at 732, 875 A.2d 48.

281 Conn. 473

With regard to the issue on appeal before this court, the defendant claimed before the Appellate Court that the trial court improperly had included a duty to retreat within the self-defense instruction because this case did not involve the use of deadly force. Because he failed to preserve this claim at trial by either filing a written request to charge on self-defense or taking an exception to the self-defense instruction given by the court,⁶ the defendant sought review of his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The Appellate Court concluded that the defendant's unpreserved claim of improper jury instruction was reviewable under Golding, but failed on its merits. State v. Fabricatore, supra, 89 Conn.App. at 740-42, 875 A.2d 48. In rejecting the defendant's claim, the Appellate Court reasoned that the improper jury instruction was harmless because the jury had chosen between two inconsistent theories of the altercation, "could have judged the testimony of the state's witnesses to be more credible," and "may not have even needed the self-defense instruction to reach its verdict." Id., at 742, 875 A.2d 48. The Appellate Court reversed the judgment of the trial court with regard to the defendant's last claim and remanded for resentencing, but affirmed the judgment on all other grounds. Id., at 745, 875 A.2d 48. This certified appeal followed. See footnote 1 of this opinion.

The defendant claims on appeal to this court that the trial court improperly instructed the jury by including a duty to retreat exception in its self-defense charge, because pursuant to General Statutes (Rev. to 2001) § 53a-19(b),⁷ a duty to retreat exists only in the context

281 Conn. 474

of deadly force. The defendant argues that the instruction misled the jury to believe that, even if it had concluded that the defendant was justified in his use of physical force, such action was not legally excusable if it was possible or feasible for the defendant to have escaped from Gonzales. In response, the state argues that the Appellate Court correctly concluded that the impropriety in the jury instruction was harmless error. The state also proffers, as an alternate ground for affirming the Appellate Court's judgment pursuant to Practice

915 A.2d 876

Book § 84-11,⁸ that the defendant cannot prevail under Golding because he waived any challenge to the alleged constitutional violation by informing the trial court that he was satisfied with the self-defense charge. We agree with the state's alternate ground, and, accordingly, we affirm the judgment of the Appellate Court.

The record reveals the following additional relevant facts and procedural history. With respect to self-defense, it is undisputed that the trial court instructed the jury properly as to the meaning of self-defense and the burdens on each party with respect to that defense. The court then continued as follows: "Now, the law recognizes an exception to the justification of the use of physical force as self-defense. In subsection (b) of § 53a-19 of the statutes insofar as it relates to this case provides as follows. A person is not justified in using

281 Conn. 475

physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating. The law stresses that the defensive measures must never be retaliatory. The force used by a defensive force, not a reprisal or a punishing force. The law also says that if possible or feasible, the person attacked should retreat and get away from that person or place before standing his ground and returning force with force.

"So if you find the claim of the defendant you must ask yourself did he take necessary defensive measures, the fending off of measures to protect himself. Or did he retreat or give ground or did he take some retaliatory measures or some stronger measures not reasonable in the light of that attack. In essence, how reasonable were the measures that he took." (Emphasis added.)

After the jury had left the courtroom, the prosecutor requested the court add to the self-defense instruction language indicating that, if the jury found the defendant was the initial aggressor, the defense of self-defense would no longer be available to the defendant pursuant to § 53a-19(c).⁹ When the court asked defense counsel if he had any objections to that addition to the charge, defense counsel objected, stating twice that the self-defense instruction already had been given as he had requested,¹⁰ and once that he was "satisfied" with the self-defense instruction.¹¹

915 A.2d 877

281 Conn. 476

"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

281 Conn. 477

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." (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 89-90, 905 A.2d 1101 (2006).

The record in the present case is adequate for our review because it contains the full transcript of the trial proceedings. Further, this court recently has recognized that "it is well established" that a claim of an inadequate jury instruction on self-defense implicates the defendant's due process rights and, therefore, is of constitutional magnitude. State v. Montanez, 277 Conn. 735, 749, 894 A.2d 928 (2006); see also State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994) ("[a]n improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension"). Accordingly, we conclude that the defendant's claim is reviewable under the first two prongs of Golding. Therefore, we address the merits of the defendant's claim under the third and fourth prongs of Golding.

Turning to the third prong of the Golding analysis, we first set forth the applicable principles that guide our analysis of the defendant's claim. "Where, as here, the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict. . . . In evaluating

915 A.2d 878

the particular charges at issue, we must adhere to the well settled rule that a charge to the jury is to be considered in...