State v. Fernandez, 9825

• Decision Date: 06 May 1992
• Docket Number: No. 9825,9825
• Citation: 27 Conn.App. 73,604 A.2d 1308
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Rogelio FERNANDEZ.

Page 1308

604 A.2d 1308

27 Conn.App. 73

STATE of Connecticut v.Rogelio FERNANDEZ.

No. 9825.

Appellate Court of Connecticut.

Argued Dec. 5, 1991.

Decided March 17, 1992.

Certification Denied May 6, 1992.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant(defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and John C. Smriga, Asst. State's Atty., for appellee(state).

Before DUPONT, C.J., and LANDAU and HEIMAN, JJ.

HEIMAN, Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49¹and53a-54a(a), ² two counts of assault in the first degree in violation of General Statutes § 53a-59(a)(1)³ and burglary in the first degree in violation of General Statutes § 53a-101(a)(2).⁴The jury found the defendant not guilty of an additional count of attempted murder.In summary, the defendant claims that the trial court(1) improperly refused to admit certain evidence regarding whether he had made an alleged custodial statement and the circumstances surrounding his statement, if any, (2) incorrectly instructed the jury regarding the use of circumstantial evidence, (3) incorrectly instructed the jury regarding the defense of intoxication, (4) improperly instructed the jury regarding evidence of flight, (5) incorrectly instructed the jury regarding the particular inferences supported by evidence of flight, (6) improperly permitted the jury to return inconsistent guilty verdicts on the counts of attempted murder and assault in the first degree and (7) improperly imposed separate punishments for attempted murder and assault in the first degree.We affirm the trial court's judgment.

The jury could reasonably have found the following facts.The defendant lived with Denise Cardona and her son, George Morales, for a period of four to five years prior to August 31, 1989.In an incident that occurred prior to August 31, 1989, the defendant struck Cardona and held her at knife point after the two became embroiled in argument.As a result of this incident, Cardona and Morales went to live at Cardona's mother's house, leaving the defendant in the apartment they shared.When the defendant requested Cardona to return, she ordered him to move out of the apartment.After the defendant vacated the apartment, Cardona and Morales returned and changed the apartment's locks in an attempt to prevent him from reentering it.

Cardona went to bed at about 8:30 p.m. on August 31, 1989.After awakening to the sound of someone breaking into the apartment through the back door, she left her bed and entered the apartment hallway, where she encountered the defendant.Upon seeing the defendant, she ran out the front door of the apartment and down a stairway that led to the front door of the building.As Cardona was descending the stairway, the defendant caught her, grabbed her hair and threw her down the remaining stairs.The defendant then continued to the bottom of the stairway, pulled out a knife and stabbed Cardona in the stomach, chest and hands.

After he awakened that night to the sound of moaning, Morales observed that Cardona was not in her bed.He then noticed that the door leading into the apartment was open and ran to the doorway.He looked toward the foot of the stairway and observed the defendant attacking his mother.Morales ran, then jumped, down the stairway and struck the defendant, who responded by stabbing him in the chest.As Morales attempted to pull his mother away from the defendant, the defendant stabbed her in the mouth.Morales continued to drag the screaming Cardona upstairs while warding off the advancing defendant.Suddenly, the defendant ceased the attack and fled.That evening, a neighbor heard her dog barking and went to her doorway, where she observed the defendant running past her house holding something in his hand.

After the attack, Cardona and Morales were transported to Bridgeport Hospital and admitted for treatment.Cardona was treated for multiple stab wounds and underwent surgery to alleviate a blood accumulation in one of her lungs.Morales was treated for a collapsed left lung and a stab wound to the chest.

Early in the morning of September 1, 1989, Sergeant Richard Petitte and two other officers of the Bridgeport police department, acting on information received from two fellow police officers, went to a house on Noble Avenue in Bridgeport to search for the defendant.Petitte was admitted to the third floor apartment, where he found the defendant hiding in a bedroom closet.Petitte then arrested the defendant and took him to the police station for processing.

I

The defendant first claims that the trial court deprived him of his federal and state constitutional rights to present a defense and committed evidentiary error when it prevented him from eliciting certain evidence regarding whether he had made a custodial statement and the context in which the statement, if any, was made.⁵We disagree.

The following additional facts are necessary to resolve these issues.Jack Messina, a Bridgeport police officer who participated in processing the defendant at the police station, testified on direct examination by the state that during the booking procedure the defendant, addressing himself to no one in particular, spontaneously asked "How are they doing?"Messina further testified that after someone responded with "something to the effect that they are going to make it, that they are doing okay,"the defendant sarcastically replied, "Next time I'll do better."Messina conceded on cross-examination that he did not know what was said immediately before this exchange because he had left the area momentarily and had returned just as the statement was made.

Virgillio Rosario testified during the defendant's case-in-chief that he had been arrested on August 31, 1989, in connection with an unrelated incident and taken to the Bridgeport police station.Rosario further testified that while inside the police station, he heard the defendant ask someone "How are they doing?", but did not hear the defendant say, "Next time I'll do better."

The defendant attempted to elicit testimony from Rosario regarding the contents of a conversation that the defendant allegedly had with him.Rosario indicated, in an offer of proof outside the jury's presence, that the defendant told him that he did not cut the alleged victims and that "the man" cut his finger.After hearing argument, the court sustained the state's hearsay objection to Rosario's testimony.

The defendant contends that the trial court, by sustaining the state's objection, deprived him of his constitutional right to present a defense.A defendant's fundamental right to present a defense, guaranteed by the due process clause of the fourteenth amendment to the United States constitution, includes the right to present evidence of the circumstances under which a custodial statement was made.Crane v. Kentucky, 476 U.S. 683, 690-91, 106 S.Ct. 2142, 2146-47, 90 L.Ed.2d 636(1986).Because the right to present a defense is rooted in the due process principle of fundamental fairness, constitutional concerns are most prominent where the proffered evidence significantly illuminates the "physical or psychological environment that yielded the confession";id., at 689, 106 S.Ct. at 2146; or otherwise bears on the confession's reliability.Id.The right to present a defense is not, however, absolute.Rather, the Supreme Court has never questioned the power of the states to exclude evidence that is " 'repetitive ... only marginally relevant' or poses an undue risk of 'harassment, prejudice, [or] confusion of the issues.'Delaware v. Van Arsdall, 475 U.S. 673, 679, [106 S.Ct. 1431, 1435, 89 L.Ed.2d 674](1986)."Crane v. Kentucky, supra, 476 U.S. at 689-90, 106 S.Ct. at 2146-47."Whether a trial court's erroneous restriction of a defendant's or defense witness's testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a case by case basis."State v. Jones, 205 Conn. 723, 731, 535 A.2d 808(1988).

The defendant claims that Rosario's testimony that the defendant denied attacking the victims and expressed concern for them was relevant to show that the defendant did not make the alleged custodial statement, "Next time I'll do better," or, alternatively, that he was not speaking sincerely when he made the custodial statement.The defendant claims that his statements to Rosario did not constitute hearsay because they concerned the circumstances under which the comments to Messina were made, and thus were offered to show his state of mind and not for their truth.The defendant's statements to Rosario would have tended to support his contentions that he did not state, "Next time I'll do better" or was not speaking sincerely when he stated it only if the statements to Rosario were true.Neither a false declaration of concern for the victims nor a false denial of guilt would have tended to support the defendant's claim that the apparent admission of guilt was in fact not made or was merely an insincere comment.He thus was attempting to introduce the statements to Rosario for their truth.

Although the defendant's alleged statements to Rosario, if true, would tend to cast doubt on the sincerity of his alleged statement, "Next time I'll do better," our courts consistently have recognized that such self serving declarations are inherently unreliable." '[T]o allow [the defendant] to make declarations in support of his cause and then to give those declarations in evidence would, in effect ... allow him to make evidence in his favor at his pleasure.'B. Holden & J. Daly, [Connecticut Evidence(1988) ] § 100;seeState v. Swift, 57 Conn. 496, 506, 18 A. 664(1889). A party would...