State v. Lahai, 30219.

• Decision Date: 10 May 2011
• Docket Number: No. 30219.,30219.
• Citation: 18 A.3d 630,128 Conn.App. 448
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticutv.Juma A. LAHAI.

128 Conn.App. 448

18 A.3d 630

STATE of Connecticut

v.Juma A. LAHAI.

No. 30219.

Appellate Court of Connecticut.

Argued Feb. 8, 2011.Decided May 10, 2011.

Dominic Spinelli, certified legal intern, with whom were Timothy H. Everett, special public defender, Louisa Lindberg, certified legal intern, and, on the brief, Amy Gilgis, Christian de Ocejo and Kelly Scott, certified legal interns, for the appellant (defendant).James M. Ralls, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James R. Dinnan, senior assistant state's attorney, for the appellee (state).DiPENTIMA, C.J., and GRUENDEL and FLYNN, Js.GRUENDEL, J.

The defendant, Juma A. Lahai, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a–61 (a)(1). He also appeals from the judgment of conviction on part B of the information of being a persistent offender in violation of General Statutes (Rev.2007) § 53a–40d. The defendant claims that (1) the trial court improperly instructed the jury on self-defense, (2) his trial counsel rendered ineffective assistance and (3) he was deprived of his constitutional right to confrontation under the sixth amendment to the United States constitution during the part B proceeding. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. During the late afternoon of October 27, 2006, an argument ensued between the defendant and Elizabeth Hutchinson, the mother of his infant daughter, at Hutchinson's residence in Meriden. The two had known each other for two years and argued frequently. On this occasion, the argument intensified, and the defendant struck Hutchinson in the face multiple times after she tossed a bottle of lotion his way. When officers from the Meriden police department responded to a 911 call from Amy Lukasik, a friend whom Hutchinson had telephoned during the argument with the defendant, they observed three fresh bruises on Hutchinson's face. Hutchinson at that time explained that the two had a history of unreported domestic violence and stated that the defendant had hit her during this particular dispute. The officers also spoke with the defendant, who denied striking Hutchinson.

The defendant was arrested and charged, by substitute information filed January 9, 2008, with assault in the third degree and unlawful restraint in the second degree in violation of General Statutes § 53a–96 (a). In addition, he also was charged in part B of the information as a persistent offender. At trial, the defendant testified that, during the October 27, 2006 argument, he first struck Hutchinson on the side of her face after she threw a bottle of lotion in his direction. He testified that Hutchinson subsequently retrieved a knife from the kitchen and attempted to stab him with it. With his back allegedly against a wall, the defendant testified that he reacted in self-defense by hitting her again. At the conclusion of trial, the jury found the defendant guilty of assault in the third degree and found him not guilty of the unlawful restraint charge. After further proceedings, the jury found the defendant guilty on part B of the information. The court rendered judgment in accordance with the jury's verdicts and sentenced the defendant to a total effective term of five years incarceration. This appeal followed.

I

The defendant first challenges the court's instruction on the justification of self-defense. He argues, and the state concedes, that the court's instruction was improper, as it mistakenly characterized self-defense as an “affirmative defense” that “the defendant bears the burden of establishing ... by a preponderance of the evidence,” and further provided that the state bore the burden of disproving that defense beyond a reasonable doubt only after the defendant satisfied his initial burden. The defendant maintains that the court's improper instruction deprived him of his constitutional rights to due process and a fair trial. The defendant did not preserve that claim at trial and now seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).¹ “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., at 239–40, 567 A.2d 823. We afford review because the record is adequate for review and the claim is of constitutional dimension. See State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994) (improper instruction on defense, like improper instruction on element of offense, is of constitutional dimension). We nevertheless conclude that the claim fails to satisfy Golding's third prong.

The following additional facts are relevant to the claim. When jury selection commenced on January 10, 2008, the court noted that it had addressed “a number of administrative issues” with the parties during a discussion in chambers days earlier. The following colloquy then transpired:

“The Court: ... The primary concern of the court was, of course, the attempt to identify any issues that might arise in the course of jury selection.... There were no particular issues, with this exception. There was a question as to whether or not there would be any affirmative issues related to self-defense.... I had asked [defense counsel] to consider that.... We didn't go on the record, no orders were issued. But, for the convenience of the court, I now inquire, will it be your intention to request a jury charge on that subject and to present evidence on that issue?

“[Defense Counsel]: Yes. I did want an affirmative defense jury instruction on self-defense.... I can put that in written form, if you'd like.

“The Court: I'd not just like it, I'm ordering, now, counsel.... Prior to the start of business tomorrow ... you must submit to the court, in writing, your preliminary jury instructions.... That writing may be as simple as the following format, which is, indeed, of great assistance to the court. As you are well aware, the public has access to, as do all lawyers, the web based charges on the judicial branch website.... It's of assistance to the court, if any of those, or all of your needs for jury charges can be fulfilled by utilizing the web based charges. It's of assistance to the court to use the following format. Request in writing that the court charge, for instance, § 2.1, § 2.6, § 11.15, in whatever order you find to be appropriate to meet your needs, your client's needs. If you wish to embellish upon, or request in addition or in lieu of anything that's on the web, particularized instructions, you must submit those in writing, and I will need your drafts by tomorrow morning.” At that time, both parties indicated their agreement with that process.

Both parties submitted proposed jury instructions the next day. The defendant's proposed instruction on self-defense provides in relevant part that “[o]nce [self-defense] is raised in a case, the state must disprove the defense beyond a reasonable doubt.” By contrast, the state submitted the following preliminary request to charge: “The state respectfully requests the [c]ourt to include the following instructions from the [j]udicial [b]ranch [c]riminal [j]ury instruction website in its jury charge. 2.3, 2.4, 2.6, 2.7, 2.8, 2.10, 2.12, 2.13, 2.25, 2.29, 2.47, 2.51, 6.15, 6.36. The state will submit a final detailed request to charge at the conclusion of evidence.” Included among those enumerated provisions was § 2.10, which detailed the preponderance of the evidence standard applicable to affirmative defenses. See J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. 2001) § 2.10.

On January 16, 2008, the court heard argument on certain pretrial motions. At that time, the court addressed “one other matter I did not bring to your attention in chambers.” After referencing “the committee proposed jury charge on the affirmative self-defense issue,” ² the court stated: “I have also determined ... upon review of [defense counsel's] requested charge on self-defense, the following. Although I've indicated that I will not be marshaling evidence, I would have you draft exactly what language you would have the court insert into the various fields upon the website version.... And I would have you specifically prepare a draft of that charge.” (Emphasis added.) Similarly, on January 23, 2008, the court again discussed certain aspects of “the self-defense issue,” including the subjective and objective analyses thereof. At that time, the court recounted its earlier reminder to defense counsel in chambers: “I did, once again, reiterate the order ... that prior to the commencement of evidence the court receive from the defendant a self-defense charge, if you will be requesting one, that identifies with specificity the particularities.... I did not receive that.... I expect that certainly before I charge the jury, otherwise your record [will] reflect that which was previously submitted and nothing more.”

The defendant filed his final request to charge the next day. The defendant's requested instruction on affirmative defenses provided in relevant part that “[w]hen a defense declared to be an affirmative defense is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.... If you are to find the defendant not guilty on the basis of the defendant's affirmative defense of self-defense, you must...