State v. Jimenez-Jaramill, AC 33302

• Decision Date: 20 March 2012
• Docket Number: AC 33302
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. LUIS JIMENEZ-JARAMILL

STATE OF CONNECTICUT v. LUIS JIMENEZ-JARAMILL

AC 33302

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 11, 2011

Officially released March 20, 2012

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(Appeal from Superior Court, judicial district of New

Haven, geographical area number twenty-three, Wahla, J.)

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Devant Joiner, assistant state's attorney, for the appellant (state).

Paul A. Garlinghouse, for the appellee (defendant).

Opinion

PELLEGRINO, J. The state of Connecticut appeals from the judgment of the trial court dismissing the charge of creating a public disturbance in violation of General Statutes § 53a-181a brought against the defendant, Luis Jimenez-Jaramill.¹ On appeal, the state contends that the court erred when it (1) summarily dismissed the charge against the defendant sua sponte in the midst of the defendant's testimony on direct examination and (2) denied the state the opportunity to cross-examine the defendant or present rebuttal testimony prior to rendering the judgment of dismissal. We agree with the state and reverse the judgment of the trial court.

In light of the highly unusual procedural posture of this case, we set forth the following undisputed facts gleaned from the record before us. On the evening of May 14, 2010, Officer Martin Feliciano of the New Haven police department patrolled the Fair Haven district of New Haven. At approximately 6:26 p.m., Feliciano was outside his vehicle on James Street when he observed the defendant operating a Mazda Protege while using a hand-held cell phone.² When Feliciano ordered the defendant to put the phone away, the defendant smiled at Feliciano and parked his vehicle on the right side of the road. A physical altercation thereafter ensued, at the conclusion of which the defendant was arrested and charged with various offenses. Those charges later were dismissed and replaced by an information charging the defendant with one count of creating a public disturbance in violation of § 53a-181a.

The defendant elected to plead not guilty to that infraction and a court trial commenced on January 25, 2011,³ at which the state's case-in-chief consisted solely of the testimony of Feliciano. Feliciano testified that he first observed the defendant ''operating [his vehicle] south on James Street, near Criscuolo Field, while holding a hand-held cell phone to his right ear, which was placed on his right hand. He also didn't have his safety seat belt on at the time.''⁴ Feliciano testified that when he instructed the defendant to put the cell phone away, the defendant ''continued to drive towards me while talking on the cell phone as he smiled.'' Feliciano testified that he then pointed at the defendant and ordered him to pull the vehicle over. As he drove past Feliciano, the defendant ''continued to speak on the cell phone. He put a grin on his face, a smirk.'' Feliciano testified that the defendant then parked the vehicle in a nearby parking spot on James Street. Feliciano detailed the physical altercation that followed in a colloquy with the state's attorney:

''Q. And what happens next?

''A. Immediately after I approached the vehicle, I'm like towards the end of the vehicle, the [defendant]immediately jumps out of the car. He clenches his fist and pushes me. He screamed—

''Q. Hold on. Officer, you say he jumps up and he clenches his fist?

''A. That's correct.

''Q. What type of a body stance did he take?

''A. That's a fighting stance.

''Q. A fighting stance?

''A. Yes, sir.

''Q. After the defendant takes the fighting stance, what happens?

''A. He pushes me.

''Q. And does he say anything?

''A. Yeah, he says, in Spanish, 'Por que me paras?' Why are you stopping me or pulling me over?

''Q. And what, if anything, do you do next?

''A. We . . . struggle . . . now I'm fighting for my safety.

''Q. So . . . there's a physical altercation that takes place?

''A. There is. . . .

''Q. Was an arrest done, Officer?

''A. Yes. After we managed to detain him, secure him, we arrested him for numerous infractions and violations. . . .

''Q. Officer, at any time during this struggle with the defendant did you feel threatened?

''A. Immediately after he got out of the vehicle, I felt threatened.''

Following the testimony of Feliciano, the state rested while reserving the right to call Feliciano in rebuttal. Significantly, the defendant did not move for a judgment of acquittal at that time. Rather, he commenced his defense with the testimony of two witnesses to the events in question, Javier Darwin-Chuquilla and Seg-undo Sarango, neither of whom clearly observed the physical altercation between Feliciano and the defen-dant.⁵ Due to the late time of day, the matter was continued until February 22, 2011.

At the outset of the February 22, 2011 proceeding, defense counsel informed the court that he had ''two other witnesses besides my client.'' The court then stated: ''All right. So . . . according to you we have three witnesses rather than two. So the court will make a determination how many witnesses we need. Obviously, after I have heard from the officer. I have heard from other witnesses. And at this time I would like to go ahead and, you know, have your client testify. . . .The intention of the court is this, I'm going to listen— I think it would be much more—I don't want to, you know, it's your case, the way you want [to] proceed. I have reviewed the testimony previously. It is in the best interest, I think, if we hear from the defendant himself. It will be very helpful for the court to make a determination.'' With that, the trial resumed with the testimony of the defendant.

The defendant testified that, on the evening of May 14, 2010, he was driving to a soccer game at Criscuolo Park. He admitted that he was talking on a hand-held cell phone as he drove his vehicle to the park. The defendant testified that he saw a police officer on the street as he approached the park, whom he later identified as Feliciano. He testified that Feliciano yelled at him to put down the cell phone and that he immediately complied. The defendant explained that ''because of my good nature, what I did was to smile and then park right in front of him.'' He further testified that his vehicle had a standard transmission, which required him to use both hands to park. The defendant testified that when he exited his vehicle and reached for a folder, Feliciano ''jumped on my back. . . . He grabbed me . . . from the back. He grabbed me to the neck. He started slamming me against the car and to tell me that to get on the ground.'' At that point in the defendant's testimony, the court inquired as to how many questions defense counsel had for the witness, to which counsel responded, ''of my client? . . . Probably a hundred more.'' The court then conducted a sidebar conference with another attorney about two unrelated matters.

When that sidebar conference concluded, the court stated, ''All right. We are back on,'' at which point defense counsel conceded he could not recall his last question. The following colloquy ensued:

''The Court: That's fine. That's fine. . . . Okay. . . . Let me ask this from both. I have heard the testimony of the officer. I have heard other testimony from other witnesses. I think there were two witnesses. I have heard some of the testimony from the defendant in this matter. It was a creating of public disturbance . . . right?

''[Assistant State's Attorney]: That's correct, Your Honor.

''The Court: It's an infraction. And it . . . was a $75 fine, right?

''[Assistant State's Attorney]: Right.

''The Court: And you indicated, [defense counsel], that [the defendant] has filed a civil lawsuit against—

''[Defense Counsel]: No. No, not yet.

''The Court: Not yet, okay. All right. Based on the testimony represented to the court and . . . after review of the file, the charges against the defendant,specifically the court was concerned about the testimony which was given by this officer that [the defendant] . . . clenched his fist and made . . . a gesture and pushed [the officer]. And the testimony which is presented today that he was driving a standard car which needs to park—at the parking at the time needs both hands, the clutch and the steering, the charges against your client are dismissed.

''[Defense Counsel]: Thank you, Your Honor.

''[Assistant State's Attorney]: Your Honor—

''The Court: Yes.

''[Assistant State's Attorney]: If the state can be heard? The state hasn't had an opportunity to cross-examine [the defendant] nor have we been able to call Officer Feliciano as

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