State v. Jonathan Albino.

• Decision Date: 23 August 2011
• Docket Number: No. 32027.,32027.
• Parties: STATE of Connecticutv.Jonathan ALBINO.
• Court: Connecticut Court of Appeals

130 Conn.App. 745

24 A.3d 602

STATE of Connecticut

v.Jonathan ALBINO.

No. 32027.

Appellate Court of Connecticut.

Argued Nov. 15, 2010.Decided Aug. 23, 2011.

Pamela S. Nagy, special public defender, for the appellant (defendant).Raheem L. Mullins, assistant state's attorney, with whom, on the brief, were John A. Connelly, former state's attorney, and Patrick J. Griffin, senior assistant state's attorney, for the appellee (state).BISHOP, BEAR and MIHALAKOS, Js.

BEAR, J.

The defendant, Jonathan Albino, appeals from the judgment of conviction, following a jury trial, of one count of murder in violation of General Statutes § 53a–54a (a). On appeal, the defendant claims: (1) the trial court erred in refusing to give a lesser included offense instruction on criminally negligent homicide, (2) the prosecutor committed numerous acts of prosecutorial impropriety throughout the course of trial, which deprived the defendant of his constitutional right to a fair trial, and (3) the court improperly instructed the jury on the meaning of reasonable doubt. Although we agree that the prosecutor committed several improprieties during the trial, we, nonetheless, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Some months prior to the incident, the defendant moved to the Waterbury area from Puerto Rico. He worked daily selling heroin behind a three-story apartment building located at 132 Locust Street in Waterbury (building). He did not speak English, and most of his customers were of Puerto Rican descent and spoke Spanish. The heroin selling operation was run by William Ramos, who also was known as “Lolay.” Ramos employed approximately five or six young men, including the defendant, who sold heroin to various customers at that location, which Ramos referred to as “the million dollar block....” During his shift, which usually was from 3 to 10 p.m., the defendant carried a loaded firearm.

On September 18, 2006, the defendant worked his usual shift and then continued working later into the night. During that time, a woman named “Spicy” was having a party in the building, and people were congregating both inside and outside the building, while loud music played. Ramos, who testified for the state, was on the second floor of the building overseeing his drug selling operation. At approximately 10:30 p.m., the defendant was sitting on the stairs just above the second floor landing when the victim, Christian Rivera, approached the building on a bicycle. When Rivera approached the stairwell, he had his hands in his pockets, and he was wearing a hooded sweatshirt with the hood up. The defendant descended the stairwell, thinking that Rivera was there to purchase heroin.

As Rivera approached the landing, the defendant, who could not see Rivera's face, instructed him in Spanish to remove his hands from his pockets and to take down the hood of his sweatshirt. Rivera did not respond to the defendant's instructions and continued his approach. Rivera was not acting in an aggressive manner, and Ramos saw nothing in Rivera's actions that caused him concern. As the defendant and Rivera came into contact with one another, the defendant pushed Rivera and again ordered him to take his hands out of his pockets and to remove his hood. Again, Rivera did not respond to the defendant, kept his hands in his pockets and continued to move forward. The defendant pushed Rivera a second time and felt something hard in Rivera's pocket. The defendant then brandished a nine millimeter semiautomatic firearm, pulled back the slide and aimed the firearm at Rivera. Ramos yelled at the defendant, asking him what he was doing and why he was pulling out the gun. The defendant fired the weapon approximately eight times at close range, hitting Rivera four times. The defendant stopped firing when Rivera fell to the ground. Three of the four bullets that hit Rivera entered and exited his body; one bullet remained lodged in his pelvis. Rivera died as a result of these gunshot wounds. When the police found Rivera's body, he had no weapons, money or identification on him. He did, however, have a bottle of Poland Spring water in his pocket. The medical examiner's office determined that Rivera had wounds to his left upper back, his right upper chest, his left ear, his right cheek, the back of his neck, the back of his left thigh, the right side of his forehead, across his right shoulder and behind one of his knees. The bullet wound to the left side of Rivera's upper back was an entrance wound, with the wound to his right upper chest being the exit wound from that same bullet. These wounds caused significant blood loss. The bullet wound to the back of Rivera's neck also was an entrance wound. The wound to the back of Rivera's left thigh was an entrance wound as well; that bullet, however, remained lodged in Rivera's pelvis. Accordingly, three of the four bullets that struck Rivera, entered from the back of his body.

Immediately after the shooting, the defendant ran upstairs and gave the firearm to his friend, Angel Garcia, and then left the scene. The defendant removed the red T-shirt he had been wearing and discarded it into some bushes. He later telephoned his friend, Jose Velez, telling Velez that he needed to get away because he had shot someone. Velez, who had planned on going to New York, offered the defendant a ride, which he accepted. During the ride, the defendant told Velez and the other men in the vehicle, Luis Rios and Zachary Gonzalez, that he had shot a man on Locust Street because the man would not respond to his orders. Rios and the defendant stayed at a hotel in New York that night. The next morning, Rios received a telephone call from Velez' wife or girlfriend, who informed him and the defendant that the police had a warrant for the defendant's arrest. On September 20, 2006, at approximately 8:30 p.m., the defendant returned to Waterbury, where he turned himself in at the front desk of the Waterbury police station.

Thereafter, the defendant was advised, in Spanish, of his Miranda ¹ rights. He waived his rights to remain silent and to have an attorney present, and willingly offered to tell his story to Detective George Tirado and Sergeant Michael Slavin. Although Tirado was able to communicate verbally with the defendant in Spanish, he was concerned about his ability to transcribe the defendant's written statement. Therefore, a state certified high school Spanish teacher, Yesenia Diaz, was called upon to transcribe the defendant's written statement in Spanish. After Diaz transcribed the statement in Spanish, she read the statement aloud to him and asked him if there was anything that he would like to change. She also had him read aloud some of the statement, just to make sure that he could read. The defendant reviewed the statement, stated that it was fine, affirmed it and signed it. Diaz then translated the statement into English and typed a copy in the English language. In his statement, the defendant admitted to shooting Rivera. The defendant further admitted that he had fired at Rivera because, as Rivera walked toward him, Rivera ignored his commands that Rivera remove his hands from his pockets and take off his hood.

The defendant was charged with murder. During his trial, the defendant testified and claimed that he had acted in self-defense. The jury, however, found him guilty of murder, and the court accepted the jury's verdict, rendered a judgment of conviction and sentenced the defendant to a term of fifty years incarceration. This appeal followed. Additional facts will be provided as necessary.

I

The defendant claims that the court improperly refused to give a lesser included offense instruction on criminally negligent homicide. See General Statutes § 53a–58.² He argues that there was sufficient evidence to sustain a conviction of criminally negligent homicide inasmuch as the evidence regarding his mental state was sufficiently in dispute, thereby permitting a jury to find him not guilty of the intentional act of murder but instead guilty of criminally negligent homicide. We disagree.

“[A] claim of instructional error with regard to the lesser included offense ... requires us, on appeal, to review the facts in the light most favorable to the defendant.... Whether one offense is a lesser included offense of another presents a question of law.... Accordingly, our review is de novo.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 289 Conn. 742, 758, 961 A.2d 322 (2008).

“The applicable legal principles are well established. A defendant is entitled to an instruction on a lesser offense if ... the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant [not guilty] of the greater offense but guilty of the lesser. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).” (Internal quotation marks omitted.) State v. Jones, supra, 289 Conn. at 758–59, 961 A.2d 322.

The defendant's claim implicates all four prongs of Whistnant; accordingly, we address each prong in turn. “Under the first prong of Whistnant, a defendant is not entitled to an instruction on a lesser included offense unless it is requested.” Id., at 759, 961 A.2d 322. Here, the parties do not dispute that the defendant properly requested such an instruction. The record demonstrates that the defendant submitted a supplemental request...