State v. Gelormino, 8438

• Court: Appellate Court of Connecticut
• Citation: 590 A.2d 476,24 Conn.App. 556
• Decision Date: 20 June 1991
• Docket Number: No. 8438,8438
• Parties: STATE of Connecticut v. Kenneth GELORMINO, Jr.

Page 476

590 A.2d 476 24 Conn.App. 556 STATE of Connecticut
v.
Kenneth GELORMINO, Jr. No. 8438. Appellate Court of Connecticut. Argued Feb. 5, 1991.
Decided May 7, 1991.
Certification Denied June 20, 1991.

Vicki H. Hutchinson, Danbury, for appellant (defendant).

Judith Rossi, Assistant State's Atty., with whom, on brief, were Frank S. Maco, State's Attorney, [24 Conn.App. 557] and John Dropick, Asst. State's Atty., for appellee (state).

Before SPALLONE, LAVERY and LANDAU, JJ.

SPALLONE, Judge.

The defendant appeals from his conviction, rendered after a jury trial, of the crimes of burglary in the first degree in violation of General Statutes § 53a-101(a)(2), and assault in the third degree in violation of General Statutes § 53a-61. ¹

Page 477

On appeal, the defendant claims that the trial court improperly (1) failed to give his requested jury instruction that the state had the burden of disproving his claim of self-defense beyond a reasonable doubt, and (2) denied his motion for judgment of acquittal because there was insufficient evidence to sustain his conviction of burglary in the first degree. We hold that the trial court improperly refused to charge the jury that the state had the burden of disproving his claim of self-defense beyond a reasonable doubt and we reverse the conviction of burglary in the first degree and assault in the third degree.

The jury could have reasonably found the following facts. The victim, Gordon Vaill, was an acquaintance of the defendant, Kenneth Gelormino, Jr. Early in the evening of August 12, 1988, Vaill and his friend, Dominic Consolini, broke into the defendant's family business, Trim Unlimited, located in Torrington, and took a toolbox, which they hid in a nearby house, intending to sell it at a later time.

The next morning, neighbors told the defendant that they had seen two men loading a red box into a black pickup truck outside Trim Unlimited. The defendant discovered a broken window at the back of the shop [24 Conn.App. 558] but did not report the break-in or the theft of the toolbox to the police.

That afternoon, the defendant's father, Kenneth Gelormino, Sr., himself a codefendant, suspecting Vaill's involvement, called Vaill's girl friend, Audrey McDonald, and asked her where he was staying. Upon her indication that Vaill was staying at Consolini's house, the defendant, his father and his brother William picked up McDonald at her home and drove her to Pulaski Street, where she pointed out Consolini's house. They parked nearby and engaged in a discussion as to who would have the best chance of gaining entry into Consolini's house. They agreed that William would go to the house and ask for Vaill.

They left McDonald at a restaurant and drove back to the Consolini house. William entered the house through a side door and told Vaill, who was sitting on a sofa in the living room, that he was there for a social visit.

At that point, the defendant and his father entered the house through the side door and William walked out. The defendant and his father asked Vaill, who was sitting down, for the toolbox and, when Vaill denied knowing anything about it, the father punched him in the head, rendering him stunned and dazed. The father continued beating Vaill with his fists and with a belt with metal rings, hitting his head, shoulders and back. Present during the altercation was Danielle Gordon, who was told by the father that Vaill was being beaten because he had taken something from them. Gordon then left the house and waited around the corner. The father continued to beat Vaill while the defendant searched the house. Thereafter, the defendant joined his father in the assault and commenced striking Vaill with a wooden two-by-four. During the assault, Vaill remained seated and attempted to shield his head with his hands.

[24 Conn.App. 559] After beating Vaill, the defendant and his father asked him who owned the television set that was in the room. Upon being told by Vaill that the set belonged to Consolini, the defendant stated, "It is mine now." He then picked up the television set and took it with him when he and his father left the house.

The victim was faint, dizzy and bleeding from multiple lacerations. A police officer, responding to a call, arrived at the house where he found the victim seated on the porch washing himself with a garden hose. The officer looked into the house through an open door and noticed blood on the floor. After obtaining a search warrant, the police entered Consolini's house where they found a bloodstained two-by-four, a bloodstained cane shaft and its detached handle. There were red stains on the back and arm of a love seat, on a cushion, on the stove top, on the...