State v. Gerak

• Citation: 169 Conn. 309,363 A.2d 114
• Court: Supreme Court of Connecticut
• Decision Date: 05 August 1975
• Parties: STATE of Connecticut v. Paul GERAK.

Page 114

363 A.2d 114

169 Conn. 309

STATE of Connecticut v. Paul GERAK.

Supreme Court of Connecticut.

Aug. 5, 1975.

Michael L. Riccio, Bridgeport, for appellant (defendant).

Walter D. Flanagan, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard F. Jacobson, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and LOISELLE, MacDONALD, LONGO and BARBER, JJ.

MacDONALD, Associate Justice.

The defendant, having been found guilty of manslaughter in violation of § 53-13 of the General Statutes, has appealed from the judgment of the trial court rendered upon the verdict of the jury. The defendant has assigned error in the court's charge, claiming that the court's comments upon the evidence gave greater weight to the state's evidence, and that the court incorrectly defined the elements of the crime of manslaughter. Further error is claimed in the court's failure to direct a verdict for the defendant and, thereafter, in failing to set aside the verdict.

Upon the trial of the case to the jury the state offered evidence to prove and claimed to have proved the following facts: Julia Diaz resided with her husband, Gregorio Diaz, and family at 554 Arctic Street in Bridgeport. They occupied a second floor apartment in a three story building containing six apartments. On the evening of September 15, 1971, she and her husband went to bed at 10 or 10:30 p.m. Their bedroom window was in the rear of the house. At dawn on the morning of September 16 the noise of a gunshot caused her to be awakened, and she went to the bedroom window from which she could see her neighbor's yard. Her husband arose from bed and came to the window. A venetian blind, which was drawn closed, covered all of the window, and she looked out of the window by peeking through the slats of the venetian blind. Everything outdoors was illuminated so that she was able to observe the defendant, who owned the house next door, standing below the fire escape next to the steps, with a firearm in his hand, shooting up toward the third floor. She did not observe any other persons in that area of the yard. In response to a question from her husband she replied that the man next door was shooting up their way. Just as she left the window and walked in the direction of the bathroom, she heard her husband fall. She turned on the light and looked at him on the floor. There was a hole in the venetian blind that was not there prior to the time that she heard her husband fall. Prior to his fall she had heard three shots. She heard no shots after he fell. Dr. Harold E. Doherty, medical examiner for the city of Bridgeport, arrived at the scene at 3 a.m. and observed Diaz lying on his back with a bullet wound in his left temple. There was no exit wound and there was no other evidence of trauma. An ambulance physician had pronounced Diaz dead at 2:40 a.m. The autopsy, subsequently performed, revealed the exact cause of death to be a gunshot wound of the left temple.

Pasquale Federici, who resided at 552 Arctic Street, was sleeping outside on his porch on Sepember 16 when he heard four shots. In the rear of the Diaz house each floor had a light containing a 150 watt bulb that was automatically controlled to go off at 6 a.m. Detective William A. Walker of the Bridgeport police department arrived at the scene shortly after 2 a.m. and observed the hole in the venetian blind. The lighting was not really bright but was bright enough to distinguish anyone who might be in the area on the ground. Patrolman Inde M. Faria descended the back stairs of the decedent's apartment and found the stairs and the area to be illuminated.

The police then went to the defendant's house where it was necessary to force entry into his apartment. There were no lights on and the defendant was sitting on the bed wearing 'long johns.' A. .22-caliber gun owned by the defendant was found underneath a pile of papers on a cart in the kitchen. At 3 p.m. on September 16, the police returned to the defendant's apartment with a search warrant and seized three boxes of bullets (state's exhibit N), and also one box of Peters .22-caliber short, rim fire cartridges; one box of Peters .22-caliber blank cartridges; one empty box labeled Remington .25-caliber automatic; and two boxes of Remington Kleanbore .22-caliber long rifle cartridges bearing lot no. R17L.

Detective Alexander J. Wlcek dug out six bullets from the area above the third floor apartment of the Diaz residence. He determined that their trajectory was from down and left. Sergeant James E. McDonald of the Connecticut state police department examined four of these six bullets (state's exhibits Q1, Q2, Q3, Q4) and the bullet removed from the decedent's head (state's exhibit I), and determined that they were not fired from the handgun found in the defendant's apartment. He also examined two boxes of bullets (state's exhibit R) taken from the defendant's apartment, miscroscopically comparing them with exhibits Q1, Q2, Q3, Q4 and I, and concluded that they were similar in class characteristics and that they were made at the same time, 1937, and were copper cartridge bullets. State's exhibit R consisted of Remington Kleanbore .22-caliber long rifle cartridges. Exhibits Q2 and Q4 were found to have similar class characteristics as Q1. McDonald classified these bullets as rare. The mayor's office had no record of a permit for the defendant to discharge a gun within city limits.

The defendant offered evidence to prove and claimed to have proved the following: Mrs. Diaz observed a person identified as the defendant standing next door with either a pistol or a revolver in his hand. There was not enough light for her to determine whether the man standing next door was wearing garments of any color other than gray. The weather bureau report for September 16, 1971, indicates 'ground fog' during the observations made at midnight, 1 a.m. and 4 a.m. The decedent owned a revolver and had it in his bedroom on September 16, 1971. There was no police record of any arguments or difficulties between members of the Diaz household and the defendant prior to September 16, 1971, and, in fact, no one in the Diaz family had ever spoken with the defendant. Detective Wlcek did not check the trajectory of the bullet fired through the Diaz bedroom window on the second floor, but he did check the trajectory of the bullet that went through the third floor window. Sergeant McDonald stated that the vertical line appearing on the test bullet (Q1) is known as a land impression, the land being the raised part or striations within the rifle. The marking on the test bullet beyond the land impression was the deformity of the bullet going through the barrel in the rifle. State's exhibit R is a box of Remington Kleanbore .22-caliber long rifle cartridges, lot no. R17L, which were manufactured in the millions in 1937. Sergeant McDonald determined that manufacture of these cartridges had stopped over thirty years ago, by his own personal knowledge and by a check of the lot number on the box, which he stated was RO5O. It is entirely possible that bullets of this type are still possessed by many individuals. Exhibits I, Q1 and Q4 could not have been fired by the weapon found in the defendant's apartment and it is a probability that none of these bullets could have been fired by any pistol or revolver. It is a probability that these bullets were fired by a rifle; their class characteristics are associated with test bullets fired from rifles as opposed to pistols. The defendant lived in a three story building housing twelve units and had not returned to his apartment since his arrest in the early morning hours of September 16, 1971, prior to the second search on that date. All the units in the building were searched by the police, and no weapon other than the defendant's pistol was found during the two searches of his apartment.

The defendant has assigned error in that portion of the charge in which the court commented to the jury on its recollection of the evidence. Recently, in Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 590-91, 356 A.2d 873 we had occasion to discuss the standards by which such comments are to be weighed, both as to necessity and propriety. In response to the defendant's exceptions, noting that portions of the evidence favorable to him were omitted from the court's original instructions, the court, prior to giving the case to the jury, substantially cured by supplemental instructions any harm that might have resulted from its original comments. As to the effect of its comments on the evidence, the court gave substantial cautionary instructions in the original and supplemental charge; these, coupled with the supplemental comments, incorporating the omitted evidence of which the defendant complained, demonstrate that the court did not abuse its discretion nor interfere with the jury's function as the trier of fact. Anderson & McPadden, Inc. v. Tunucci, supra.

The next assigned error relates to the court's charge as to the law of manslaughter, at that time defined by common law. ¹ Initially, the state argues that the defendant did not properly except to this portion of the court's instructions and that we may not review this claim of error. After the court had supplemented its instructions to the jury with regard to the evidence produced, counsel for the defendant took the following exception: 'Your Honor, with all due respect to the Court, for the record, on behalf of the defendant, I would like to take an exception to the charge as a whole. The defendant takes exception to the overall charge as not being an accurate representation of the Connecticut Law on manslaughter. reasonable doubt, credibility of witnesses, circumstantial evidence and the absence of the obligation of the accused to take the stand in his own defense. And the defendant further takes exception on the basis that the Court comments on...