State v. Gonzalez

• Court: Connecticut Court of Appeals
• Writing for the Court: BEAR
• Decision Date: 23 July 2013
• Docket Number: AC 33296
• Citation: State v. Gonzalez, AC 33296 (Conn. App. Jul 23, 2013)
• Parties: STATE OF CONNECTICUT v. MIGUEL GONZALEZ

STATE OF CONNECTICUT v. MIGUEL GONZALEZ

AC 33296

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued February 19, 2013

Officially released July 23, 2013

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(Appeal from Superior Court, judicial district of

Fairfield, Hauser, J.)

Lisa J. Steele, special public defender, for the appellant (defendant).

Matthew A. Weiner, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

Opinion

BEAR, J. The defendant, Miguel Gonzalez, appeals from the judgment of conviction, rendered after a jury trial, of interference with a search in violation of General Statutes § 54-33d. On appeal, the defendant claims (1) that the evidence was insufficient to convict him of the crime of interference with a search, and (2) that the trial court abused its discretion by refusing to sever his trial on that charge from his trial on the charge of murder in connection with which the search at issue was conducted. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. In September 2007, the defendant and the victim, Miguel Vasquez, had a verbal altercation outside of a bar in Bridgeport. On October 7, 2007, the victim was shot and killed at a party in the basement of a home (home) owned by Mokeema Garcia. The victim was shot from approximately six to twelve inches away.

Nairobi Ortiz, the victim's niece, testified that she saw the defendant at a bar on the night of the party, before seeing him later at the party. She testified that while the defendant was at the bar he stared at the victim, and that he was wearing a brown baseball hat and glasses. Richard Serrano testified that he saw the defendant at around midnight on that same night. Serrano testified that, while he was on his way to the party, he saw the defendant walking out of an alleyway near the home carrying a gun. Nairobi Ortiz testified that she saw the defendant being denied entry to the party. Erica Ortiz, another of the victim's nieces, also testified that she saw the defendant being denied entry to the party, but that she later saw him at the party. After the shooting, Garcia found a brown baseball hat and a pair of glasses on his property. Serrano testified that he saw the defendant the next day, at which time the defendant threatened him ''to watch [his] mouth or the same thing was going to happen that happened in the basement . . . .'' Serrano testified that the defendant had a gun in his hand at this time.

The hat and glasses were sent to the state police forensic laboratory for DNA testing. The results included the defendant as a possible contributor to the DNA on the hat and eliminated him as a possible contributor to the DNA on the glasses. On August 25, 2008, as part of the murder investigation, the state obtained a search warrant to use a buccal swab to obtain a DNA sample from the defendant.¹ At the time, the defendant was being held in a cell at the Bridgeport Police Department awaiting arraignment in an unrelated matter. On August 26, 2008, after the defendant was approached by detectives who had come to execute the warrant to seize a buccal swab from the interior ofhis cheek, initially he vacillated between agreeing and refusing to comply with the warrant. The defendant ultimately refused to comply, causing the detectives to seek advice from their supervisor. Upon returning to the defendant's cell, accompanied by other officers, the detectives explained to the defendant that he did not have a right to speak to an attorney before they executed the warrant and that if he did not comply voluntarily, they would execute the warrant forcibly. The defendant persisted in his refusal to comply. Several officers entered the cell to assist with the execution of the warrant and the defendant resisted by ''struggling,'' ''flailing, fighting,'' and ''basically fighting them not to stay down on the . . . bed.'' Three of the officers present in the cell held the defendant down on the bed: one officer held his legs and feet, one officer held his stomach area, and one officer held his nose and jaw line. The defendant refused to open his mouth. The officer holding the defendant's nose and jaw line pinched his nose closed to prevent him from breathing through his nose and force him to breathe through his mouth. Pinching the defendant's nose closed forced him to open his mouth. A detective entered the cell, stood over the defendant and swabbed his open mouth. The officers and detectives then exited the cell. DNA tests on the swab and the hat found at the home established that the defendant was a possible contributor to the DNA found on the hat. On August 26, 2008, the defendant was charged with interference with a search. Subsequently, the defendant was charged in a separate information with the victim's murder.

On September 22, 2009, the state filed a motion to consolidate for trial the information charging interference with a search and the information charging murder, which the court, Hauser, J., granted. On November 10, 2009, the defendant filed a motion to sever the two cases, arguing that consolidation of the charges for trial would result in him suffering substantial prejudice because the two offenses involved separate and unrelated incidents. He claimed that the murder charge involved a brutal and shocking crime, and that the jury would use video evidence of the interference with a search charge cumulatively to convict him of both charges. On November 12, 2009, the court, Hauser, J., denied the defendant's motion to sever, incorporating his prior decision on the state's motion to consolidate and further elaborating that the defendant failed to demonstrate how the victim's murder was especially brutal. During jury selection for the joined cases, defense counsel made an oral motion for a bench trial on the interference with a search charge, which the court, Hauser, J., denied. The consolidated cases were tried to a jury, which found the defendant guilty of interference with a search. The jury could not reach a verdict on the murder charge, which resulted in a mistrial on that charge. The court rendered judgment in accordancewith the jury's verdict. This appeal followed.

I

The defendant's first claim on appeal is that the evidence before the court was insufficient to prove him guilty of interference with a search pursuant to § 54-33d, which provides in relevant part as follows: ''Any person who forcibly assaults, resists, opposes, impedes, intimidates or interferes with any person authorized to serve or execute search warrants or to make searches and seizures while engaged in the performance of his duties with regard thereto or on account of the performance of such duties, shall be fined not more than one thousand dollars or imprisoned not more than one year or both . . . ." Specifically, the defendant argues that the evidence was insufficient to prove either (A) that his refusal to open his mouth or his involuntary struggles to breathe constituted forcible interference with a search; or (B) that such use of force, if any, was intentional. We are not persuaded.

''The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict. . . . [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal.'' (Internal quotation marks omitted.) State v. Moore, 141 Conn. App. 814, 818, 64 A.3d 787 (2013).

''It is axiomatic that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a...