State v. Irizarry
| Decision Date | 02 May 2006 |
| Docket Number | No. 25895.,25895. |
| Citation | 896 A.2d 828,95 Conn.App. 224 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Jose A. IRIZARRY. |
Alice Osedach, assistant public defender, for the appellant (defendant).
Joan K. Willin, special deputy assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Mary Rose Palmese, supervisory assistant state's attorney, for the appellee (state).
FLYNN, C.J., and MCLACHLAN and PELLEGRINO, Js.
The defendant, Jose A. Irizarry, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a)(2),1 threatening in the second degree in violation of General Statutes § 53a-62 (a)(2)2 and criminal mischief in the third degree in violation of General Statutes § 53a-117 (a)(1)(A).3 He claims on appeal that the trial court improperly (1) admitted evidence of four instances of his prior misconduct and (2) restricted his cross-examination of one of the victims regarding that victim's purported theft of the defendant's social security check. We disagree with both of these claims and affirm the judgment of the trial court.
The jury reasonably could have found the following facts. In late 2002, the victims, Emma DeJesus, and her boyfriend, Wilson Correa, lived at 15 Prospect Street, apartment nine, in New Britain, and the defendant lived nearby at 59 Walnut Street. Mary Rubino, a testifying witness, lived next door to DeJesus and Correa. The defendant and DeJesus previously were married and had resided together for eighteen to twenty years. Correa and Rubino both were well acquainted with the defendant, having known him for years.4
The outer doorway to 15 Prospect Street was secured, such that a visitor to the building, to gain entry, had to ring a bell for a particular apartment and speak via an intercom with its occupant, who then could admit the visitor. At about 4 p.m. on November 11, 2002, a friend of DeJesus rang the bell, and DeJesus sought to admit her. When DeJesus could not locate her friend in the lobby or hallway area of the building. Correa exited the apartment, and then the building, in search of the friend.5
As Correa emerged from the building, he was accosted by the defendant, who was hiding behind some mailboxes and appeared to be intoxicated. The defendant possessed a hammer inside of a plastic grocery bag that he had wrapped around his wrist. The defendant struck Correa on the head with the hammer, causing a laceration about an inch long above his eyebrow. Rubino briefly exited her apartment and viewed the defendant and Correa scuffling.6 Correa escaped and, soon thereafter, reentered the building through a different door.
In the meantime, the defendant entered the building and proceeded to apartment nine. Once there, he yelled for DeJesus to open the door, called her a bitch and said he was going to kill her. He also struck the apartment door with the hammer repeatedly, creating holes and breaking two locks. DeJesus pounded on the wall separating her apartment from Rubino's and shouted to Rubino to call the police. Rubino did so, then exited her apartment to encounter the defendant banging on her neighbors' door with what appeared to her to be a hammer.7 She advised the defendant to leave because the police were coming. The defendant replied that he did not care and that he was not there, and then left. Correa returned to apartment nine, and New Britain police officers Brian Murphy and Robert Paciotti arrived.
Correa, who was bleeding profusely, was taken by ambulance to a hospital where he received several stitches. When interviewed by Murphy, he identified the defendant as his assailant. DeJesus and Rubino also identified the defendant as the person who had damaged the door to apartment nine. Murphy observed the damage to the door and its locks.
On the basis of the information given to them by Correa, DeJesus and Rubino, Murphy and Paciotti went to the defendant's apartment at about 6 p.m. on the day of the incident. The defendant voluntarily allowed the officers to enter.8 He denied being at 15 Prospect Street that day, but when the officers asked him whether he had a hammer, he pointed to one lying in the open nearby. The hammer was seized, and the defendant was arrested and taken to the police station.
The defendant was charged in a second amended long form information with assault in the second degree, threatening in the second degree and criminal mischief in the third degree.9 After a jury trial conducted on several days in February, 2004, the defendant was convicted of all of those offenses and received a total effective sentence of eleven years imprisonment.10 The court also imposed permanent criminal restraining orders requiring the defendant to refrain from contact with DeJesus and Correa. This appeal followed.
The defendant claims first that the court improperly admitted evidence of four instances of his prior misconduct. We disagree.
The following additional facts and procedural history are relevant. Prior to the start of trial, the state filed a motion seeking to present evidence of certain instances of the defendant's prior misconduct pursuant to § 4.5 of the Connecticut Code of Evidence.11 The state argued, inter alia, that the evidence was probative of the defendant's intent in the present case and was necessary to prove an element of the crime of threatening. The court deferred ruling on the state's motion until midtrial, at which time the state, outside the presence of the jury, made offers of proof as to the incidents in question.
The prior instances of misconduct, the first two of which the state sought to offer through the testimony of DeJesus and the second two through the testimony of Rubino, were as follows. (1) In 1987, the defendant attacked DeJesus with a machete, cutting her wrist, and attempted to attack her son.12 (2) About two weeks prior to the hammer incident, the defendant came to the victims' apartment, and DeJesus' grandson answered the door. When the defendant saw Correa there sleeping, he rolled up his sleeves as if preparing to hit DeJesus, then said that he would not break her face because her grandson was there. The grandson pushed the defendant, who was drunk, out of the apartment. (3) Within one year of the hammer incident, the defendant came to the victims' apartment and banged on the door at around 3 or 4 a.m. He was holding a knife by its handle with the blade of the knife concealed up his shirtsleeve. (4) Also within one year of the hammer incident, the defendant came to the victim's apartment and banged on the door at between 2 and 4 a.m. He had a knife stuck down the back of his pants with the handle visibly protruding from the waistband.13
After hearing the offers of proof, the court concluded that the misconduct evidence was probative as to the issue of the defendant's intent in regard to the charge of threatening and that at least some of that evidence was not overly prejudicial. As to the 1987 incident, the court ruled that DeJesus could testify as to the attack on herself but not the attempted attack on her son. It allowed further that DeJesus could show the jury the resulting scar on her wrist. The court ordered, however, that in discussing the incident, the word "machete" could not be used but rather would be replaced with the word "instrument." The court allowed DeJesus to testify about the incident with her grandson but limited her testimony to the basic facts. It also permitted Rubino to testify about the two incidents in which the defendant, possessing knives, was banging on the victims' door in the early hours of the morning.14
The witnesses proceeded to testify before the jury, as contemplated during the offers of proof, but restricted by the court's orders. Following DeJesus' testimony regarding the first two incidents of misconduct, the court gave a brief limiting instruction to the jurors, cautioning them to consider the evidence only for purposes of establishing the defendant's intent and not to show his bad character. Following Rubino's testimony regarding the second two incidents of misconduct, the court gave a similar limiting instruction. In its final charge to the jury, the court gave a more extensive instruction as to the proper use of the misconduct evidence.15
The defendant now argues that the court improperly admitted evidence of the foregoing incidents of his misconduct because that evidence was not relevant to the question of his intent to terrorize the victim. He claims further that the "intent to terrorize" element of the threatening count was not at issue. According to the defendant, the misconduct evidence was more prejudicial than probative and, as a result of its admission, his "fundamental constitutional rights and . . . rights to a fair trial were violated."16 We are not convinced.
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...and explicitly admitted before the trier of fact." (Emphasis in original; internal quotation marks omitted.) State v. Irizarry , 95 Conn. App. 224, 233–34, 896 A.2d 828, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006) ; see also Estelle v. McGuire , 502 U.S. 62, 69–70, 112 S. Ct. 475, 116......
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...has not been established. Beinhorn v. Saraceno , 582 A.2d 208, 23 Conn. App. 487 (Conn. App. 1990). State of Connecticut v. Irizarry , 95 Conn.App. 224, 896 A.2d 828 (2006). Evidence is “relevant evidence” if it has a logical tendency to aid the trier in the determination of an issue; all t......
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...has not been established. Beinhorn v. Saraceno , 582 A.2d 208, 23 Conn. App. 487 (Conn. App. 1990). State of Connecticut v. Irizarry , 95 Conn.App. 224, 896 A.2d 828 (2006). Evidence is “relevant evidence” if it has a logical tendency to aid the trier in the determination of an issue; all t......
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...v. Saraceno , 582 A.2d 208, 23 Conn. App. 487 (Conn. App. 1990). §6.800 Is It Admissible? 6-14 State of Connecticut v. Irizarry , 95 Conn.App. 224, 896 A.2d 828 (2006). Evidence is “relevant evidence” if it has a logical tendency to aid the trier in the determination of an issue; all that i......
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Irrelevant or immaterial questions
...has not been established. Beinhorn v. Saraceno , 582 A.2d 208, 23 Conn. App. 487 (Conn. App. 1990). State of Connecticut v. Irizarry , 95 Conn.App. 224, 896 A.2d 828 (2006). Evidence is “relevant evidence” if it has a logical tendency to aid the trier in the determination of an issue; all t......