State v. Jimenez

• Decision Date: 25 March 1993
• Docket Number: No. 11272,11272
• Citation: 30 Conn.App. 406,620 A.2d 817
• Parties: STATE of Connecticut v. Jorge JIMENEZ.
• Court: Connecticut Court of Appeals

Page 817

620 A.2d 817

30 Conn.App. 406

STATE of Connecticut v. Jorge JIMENEZ.

No. 11272.

Appellate Court of Connecticut.

Argued Dec. 14, 1992.

Decided Feb. 23, 1993.

Certification Granted for limited issue March 25, 1993.

Joseph G. Bruckman, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Gerard P. Eisenman, Asst. State's Atty., for appellee (State).

Before FOTI, LAVERY and LANDAU, JJ.

FOTI, Judge.

The defendant appeals from his conviction, after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59(a)(1). ¹ He claims that the trial court improperly instructed the jury as to the "initial aggressor" exception to the law of self-defense in light of the evidentiary basis for the claim of self-defense he raised. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Saturday, August 18, 1984, Thomas Comacho, the victim, lived in a third floor apartment at 596 Pembroke Street in Bridgeport with his girlfriend, Suma Pagan, and their child. The defendant lived in a second floor apartment with his girlfriend, Sandra Pagan, Suma's sister. The defendant and Thomas Comacho had not been getting along for about two months. As Comacho was leaving the building and walking by the second floor, the defendant came out of his apartment and into the hallway holding a sawed-off shotgun. Comacho raised his hands and asked the defendant not to shoot him. The defendant then made a threatening remark and shot Comacho in the left leg. Comacho fell to the floor and lost consciousness. As a result of his wound, he spent several months in the hospital and underwent five operations on his left leg, which is now two and one-half inches shorter than his right leg.

On the night of the shooting, Thomas Comacho's brother, Israel Comacho, was standing outside the apartment building at 596 Pembroke Street when he heard a shot. Israel pulled out a gun, ran up the front stairs of the building, ran after the defendant and fired at him. The defendant, in return, shot Israel Comacho in the back of the neck. ²

The defendant did not deny shooting both Thomas and Israel Comacho. He did, however, raise a claim of self-defense. As part of this claim, the defendant testified that two days before the shooting, on August 16, the Comacho brothers had challenged him to come out of his apartment; when he did, they fired six shots in his direction. The defendant testified that he believed that the Comachos were trying to kill him. He stated that on the day after they shot at him, the brothers, who were working on a car in front of the apartment building, "checked him out" and made a move toward the interior of the car. The defendant testified that he was frightened. He obtained two sawed-off shotguns after Sandra Pagan told him that her sister had said that the Comachos had bought a box of bullets and were going to kill him. The Comacho brothers both testified and denied all of the defendant's allegations about the August 16 shooting.

The issue in this appeal is not whether there was sufficient evidence to support a jury instruction on self-defense. The sole issue is whether the trial court improperly instructed the jury as to the "initial aggressor" exception to General Statutes § 53a-19(a), ³ which is contained in General Statutes § 53a-19(c). ⁴

The defendant does not contend that the trial court improperly defined the law of self-defense contained in § 53a-19(a). The defendant also does not dispute that the court properly concluded its instruction on self-defense by referring to the state's burden of disproving the defense beyond a reasonable doubt, the reasonableness of the defendant's belief as a key inquiry for the jury, and the requirement that the jury separately apply the principles of self-defense to the defendant's actions toward each of the alleged victims. Rather, the defendant claims that the court, after defining the relevant statutory terms, improperly instructed the jury as to General Statutes § 53a-19(c) as follows: "On the law of self-defense, the law recognizes certain exceptions to the justification of the use of physical force as self-defense, and in this case specifically, the use of deadly physical force. Those were earlier referred to as subsections (b) and (c) of § 53a-19.

"Subsection (c) insofar as is applicable to this case states as follows, that, again, 'Notwithstanding the provisions of subsection (a), that a person is not justified in using physical force when he [meaning the defendant] was the aggressor.' This exception presents a question of fact for you to determine. Thus, if you find proven beyond a reasonable doubt that the defendant was, in fact, the aggressor, meaning that he was the first to use physical force, then the state has succeeded in disproving the defense of self-defense." (Emphasis added.)

The defendant duly noted his sole exception to the charge, stating: "My exception regarding the charge of self-defense, Your Honor defined for the jury the initial aggressor as the first one to use physical force. Mr. Eisenman and I have some sort of feud, he sees me pull my coat back, and he pulls out a gun and he shoots me in self-defense. He is the initial aggressor, he is the first one to use force, and that is why the way Your Honor defined that term, and it's more than the person--it's not the first one who, you know, actually shoots a gun; it's the initial aggressor is the first one who causes the problem which gives rise to the incident." ⁵

The defendant also filed a motion for a new trial in which he claimed that the court's instructions on the initial aggressor exception under General Statutes § 53a-19(c)(2) were incorrect and in conflict with § 53a-19(a)(1) and (2). He claimed that the court's instructions violated his rights to present a defense and to due process of law secured by the fifth, sixth and fourteenth amendments to the United States constitution. The defendant took an exception to the trial court's denial of this motion.

There is no question that "[t]he standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). The charge is to be read as a whole; sections are not to be judged in isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978). The charge is not to be 'critically dissected in a microscopic search for possible error.' State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). The test to be applied to any part of a charge is whether the charge as a whole presents the case to the jury in a manner to prevent injustice. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). We review the whole charge to determine whether it sufficiently guided the jury to a proper verdict. State v. Shaw, 24 Conn.App. 493, 499, 589 A.2d 880 (1991)." State v. Hester, 28 Conn.App. 469, 472, 612 A.2d 120 (1992).

General Statutes § 53a-19(a) provides in part that, subject to the exceptions in subsections (b) and (c), "a person is justified in using reasonable physical force upon another person to defend himself ... from what he reasonably believes to be the use or imminent use of physical force ... which he reasonably believes to be necessary for such purpose...." "[A] person may not use 'deadly physical force' unless he reasonably believes that the other person is either 'using or about to use deadly physical force' or is 'inflicting or about to inflict great bodily harm.' " State v. DeJesus, 194 Conn. 376, 389, 481 A.2d 1277 (1984). General Statutes § 53a-19(c) provides an exception to this rule, as follows: "Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor...." "[B]y the terms of the statute, the use of force in self-defense ... is never justified where the conditions set forth in [§ 53a-19(c) ] are found to exist." State v. Silveira, 198 Conn. 454, 469, 503 A.2d 599 (1986). "Whether the defendant did, in fact, act with such intent and whether he was the initial aggressor are critical circumstances in the jury's evaluation of his claim of self-defense." State v. Corchado, supra, 188 Conn. at 664, 453 A.2d 427.

The function of the charge is to assist the jury in correctly applying the law to the facts that it finds are established. State v. Havican, 213 Conn. 593, 603, 569 A.2d 1089 (1990). We conclude that, when read as a whole, the trial court's instruction on self-defense performed this function. The charge was in accordance with General Statutes § 53a-19 and presented the case to the jury in a manner so that no injustice resulted.

The defendant states that the "focal point of the defense as to the charges pertaining to Thomas Comacho was the reasonableness of the defendant's belief as to what Thomas was about to do at the time the defendant shot him." (Emphasis in original.) This was precisely the "focal point" of the trial court's instructions to the jury.

The court began its instruction on self-defense by stating: "Self-defense is a means by which the law justifies the use of force which would otherwise be illegal. Once self-defense is raised in a case, the state must disprove the defense beyond a reasonable doubt. A person is justified in the use of reasonable physical force upon another when he reasonably believes that such force is necessary to protect himself or another person from the use of or the impending use of force by another. Self-defense is a legal defense to the use of force...