State v. Fernandez

Decision Date10 December 1985
Citation501 A.2d 1195,198 Conn. 1
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Wilfredo FERNANDEZ.

Colleen M. O'Connell, Certified Legal Intern, with whom were Todd D. Fernow, and, on brief, Michael R. Sheldon, Hartford, and Edward R. Scofield, Certified Legal Intern, for appellant (defendant).

Elizabeth B. Leete, Sp. Asst. State's Atty., with whom were Carl Schuman and, on brief, David Newman, Asst. State's Attys, for appellee (State).

Before ARTHUR H. HEALEY, SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

ARTHUR H. HEALEY, Justice.

Upon a trial to a jury, the defendant Wilfredo Fernandez was found guilty of the crimes of burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the second degree in violation of General Statutes (Rev. to 1979) § 53a-123. 1 This appeal followed.

On appeal, the defendant claims that the trial court erred: (1) in conducting a "partisan cross-examination" of the only defense witness, which resulted in the denial of his right to trial by an impartial jury, his right to put on a defense and his right to a fair trial; (2) in its jury instructions on the elements of larceny in the second degree in that it unconstitutionally relieved the state of its burden of proving that he acted with the requisite specific intent; and (3) in concluding that the evidence presented was sufficient to justify a verdict of guilty on either of the crimes involved. We find error on the first issue and remand for a new trial. We find no error on the third issue and will discuss the second issue only to the extent necessary to guide the trial court in connection with a new trial.

We turn first to the claim involving the conduct of the trial judge. Some of the facts which the jury could reasonably have found are as follows: The crimes of which the defendant was found guilty arose out of the burglary of a Western Auto store in a Bridgeport shopping center around midnight on March 5, 1980. Two state's witnesses who were leaving a nearby bowling alley about that time heard the sound of breaking glass and observed a person running from the direction of the store. They observed the person jump into the passenger side of a van parked in front of the store. The van immediately sped away and both witnesses followed it in their car and made note of its license number. They then returned to the store where the police had already arrived in answer to a silent alarm. They described the van and gave its license number to the police, who in turn radioed the information to a dispatcher.

About three to five minutes after the police broadcast the information, another Bridgeport police officer spotted the van a short distance away. After using the siren and lights on his police car, he stopped it. When he stopped the van, the defendant was in the driver's seat and his brother, Reuben Figueroa, was in the front passenger's seat. This officer ordered the two occupants of the van to get out of the vehicle. When they did, he placed them under arrest. While handcuffing the defendant, the officer observed an inch-long cut on his right wrist which he described during his testimony as having "fresh blood, but not flowing," "semi-coagulated." The police search of the van at that time disclosed three television sets and a "large bulky hammer" inside the side panel door. The manager of the Western Auto store came to the store shortly thereafter and reported that three television sets were missing. The front window of the store had been broken.

The defendant's trial took place in October, 1980, at which time the state produced the following witnesses: the two witnesses who pursued the van and obtained its license number, the two police officers who responded to the silent alarm at the store, and the police officer who actually apprehended the defendant and his brother. The defendant did not testify at the trial. His brother, Reuben Figueroa, was the only witness produced by the defense. On August 20, 1980, prior to the defendant's trial, Figueroa had pleaded guilty to charges, arising out of this incident, of burglary in the third degree and larceny in the second degree. He had not been sentenced as of the time he testified at his brother's trial. He testified that no one had promised him anything in return for pleading guilty and that there was no plea bargain. The trial judge at the defendant's trial was the same judge before whom Figueroa had entered his guilty pleas in August, 1980.

On direct examination, Figueroa said that the defendant, who owned the van, had picked him and a friend up earlier on the evening of the burglary and that they had had a couple of bottles of brandy to drink. Because the defendant had had too much to drink, he told Figueroa to drive as he could not, and he then fell asleep on the bed in the back of the customized van. Figueroa, who needed money to buy drugs, stopped at the Western Auto store, "pulled out" a hammer and broke the store window. He and the "other kid," who he said was also in the van, went inside. Figueroa testified at the trial that he went in twice and brought out one television each time and that the "other kid" went in just once and brought out one television. He also said that the defendant took no part in this break because he was asleep in the bed in the rear of the van but that "somebody else did." When defense counsel asked him who that person was, he answered: "I would like to keep his name out of the Court."

Figueroa maintained that he drove the van away from the store, and when he saw the flashing light of the pursuing police cruiser he woke the defendant up. He did this because he did not have a license at the time and because the defendant owned the van. Thereupon, the defendant, according to Figueroa, assumed the driver's seat. The "other kid," Figueroa said, was able to exit the "slide door" on the passenger side of the van and "took off" unnoticed by the police officers who had stopped the van.

On cross-examination, Figueroa reiterated that he had been drinking and was using drugs at the time. He also said that he broke the store window with a hammer and that he went into the store twice bringing out one television each time. The "other person" only went in once. After he was further questioned by the state and after he admitted that he remembered pleading guilty on August 20, 1980, the state indicated that it wanted to introduce a certain transcript to impeach Figueroa's credibility. At that juncture, the following occurred:

"Q. Mr. Figueroa do you remember telling Your Honor at the time that you pled guilty to the three crimes that you were charged with and pled guilty to, that you went inside. That once inside, you grabbed a couple of television sets and then went back outside. When his Honor asked you how many times you went in and out. You said just once. His Honor said, 'just once, are you sure of that?' You replied, yes. He said, 'how many television sets did you take?' You said, 'one.' Do you remember saying that?

"A. No, I'm sorry, he asked me and I told him twice.

"The Court: You never said that?

"A. No I did not.

"The Court: You can introduce it now. I will see it first. Mr. Figueroa, I will ask you once more. I just want to make sure. On August 20, 1980 in this Courtroom, did you remember me saying to you, how many times did you go in and out. And you said, huh, do you remember saying that?

"A. Yes, but

"The Court: Just wait, let me do this. I said 'how many times did you go in and out?' And you said, 'just once.' Do you remember saying that?

"A. No, I do not.

"The Court: I said, 'just once, are you sure of that?' You said, 'yes.' Do you remember saying that?

"A. No.

"The Court: Then you never said that?

"A. I never said that. I told you twice, and I remember saying that. Because you had asked me--

"The Court: I don't want to hear anything more. [A]ny objections?" 2 The balance of the cross- examination by the state is significant in two respects: Figueroa again maintained that he entered the store twice and that while he loved his brother, the defendant, and would do anything he could for him, he had pleaded guilty "because I did do it. He had no part in it."

On redirect, he reiterated his love for his brother but said he had pleaded guilty "because I did it" and his brother did not have anything to do with it. Thereupon, after the state and defense counsel indicated that they had no further questions of Figueroa, the following occurred:

"The Court: Mr. Figueroa, who was with you?

"A. Who was with me?

"The Court: Yes.

"A. I don't want to say the person's name.

"The Court: I will ask you once more, who was with you?

"A. I cannot say the person's name, the person that was with me is in jail at this moment.

"The Court: Maybe you weren't clear about what I asked you. Who was with you?

"A. Like I said before, I cannot say that person's name.

"The Court: Is it that you cannot or will not?

"A. I cannot.

"The Court: Can't.

"A. I don't know what that would bring upon myself, saying that person's name.

"The Court: I ask you once more, what is his name?

"A. I can't say his name.

"The Court: Any questions based on my questions Mr. Florek?

"Mr. Florek: No questions, Your Honor.

"The Court: Any questions based on my--

"Mr. Newman: No Your Honor."

The defense then rested its case; there was no rebuttal offered.

During its charge to the jury, the trial court included the following in its instructions: "Now one other subject that I should mention to you, is that you are not to infer or take any meaning from the [intonation] of my voice or the [manner] in which the Court has to [sic] replied to or spoken to counsel or witnesses in the [course] of the trial. Be as objective and as fair as you can in weighing the credibility of the witnesses that you have heard. Do not feel, as a result of any questions I may have asked any witness, that I...

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