State v. Luna

• Decision Date: 28 September 2021
• Docket Number: AC 43097
• Citation: 262 A.3d 942,208 Conn.App. 45
• Parties: STATE of Connecticut v. Jasmin I. LUNA
• Court: Connecticut Court of Appeals

208 Conn.App. 45

262 A.3d 942

STATE of Connecticut

v.Jasmin I. LUNA

AC 43097

Appellate Court of Connecticut.

Argued April 6, 2021

Officially released September 28, 2021

Laila M. G. Haswell, senior assistant public defender, for the appellant (defendant).

Kathryn W. Bare, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Roger Dobris, former senior assistant state's attorney, for the appellee (state).

Cradle, Alexander and Lavine, Js.

LAVINE, J.

The defendant, Jasmin I. Luna, appeals from the judgment of conviction, rendered after a jury trial, of misconduct with a motor vehicle in violation of General Statutes § 53a-57 and assault in the third degree in violation of General Statutes § 53a-61 (a) (3) in connection with a motor vehicle accident in which the defendant's vehicle collided with a motorcycle.¹ On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support her conviction, (2) the trial court abused its discretion and violated her sixth amendment right to present a defense by improperly precluding her from introducing into evidence portions of the medical records of the operator of the motorcycle, Kevin Tardiff, (3) the court erred in admitting into evidence Tardiff's death certificate and, in doing so, violated her sixth amendment right to confrontation because the document contained testimonial hearsay, and (4) the court violated her sixth amendment right to conflict free representation when it failed to inquire into the actual conflict of interest created by defense counsel when he provided the state with evidence harmful to the defendant. We are unpersuaded by each of the defendant's claims and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 20, 2017, at approximately 4:30 p.m., the defendant was driving her vehicle in a southbound direction on Old Colony Road in Meriden to attend a baby shower at the Meriden Turner Society (hall). As the defendant was approaching the parking lot of the hall, she noticed her mother waving for her to turn into the parking lot. At the same time, the defendant noticed a motorcycle driven by Tardiff traveling in a northbound direction on Old Colony Road. The motorcycle was traveling in the center of the lane at the speed limit, neither veering nor swerving. The defendant was holding a cell phone in her right hand and speaking into it. The defendant admitted to one of the police officers at the scene that she was using her cell phone for its global positioning system (GPS) function. She looked to the hall on her left, moved her left hand as if to wave to her mother, and initiated a left turn of the vehicle without signaling. The motorcycle, traveling in the opposite direction, skidded for thirty-seven feet before Tardiff "laid the bike down," deliberately dropping the motorcycle to the ground, where it bounced and scraped along the pavement for thirty more feet before striking the defendant's vehicle. The defendant's vehicle drove over the motorcycle, Tardiff and his passenger, Kathryn Caponigro, before coming to a stop "almost all the way into" the parking lot.

Emergency personnel soon arrived to treat the motorcycle operator and his passenger. Tardiff and Caponigro were transported to MidState Medical Center in Meriden and later taken via Life Star helicopter to Hartford Hospital. Tardiff died of his injuries approximately two weeks later. Caponigro remained in the hospital for three months, and her injuries seriously affected her walking, speech, and vision.

At the scene of the accident, the defendant gave a statement to Garrett Ficara, an officer with the Meriden Police Department, in which she stated that she had not been on her cell phone at the time of the crash. She also told Lieutenant Thomas J. Cossette, Sr., of the Meriden Police Department that she had been using the GPS capability of her cell phone while driving. An eyewitness who was driving a vehicle directly behind the defendant prior to the crash, Elizabeth Gonzalez-Asik, saw the defendant holding her cell phone, in her right hand, up to her ear and talking into the phone.

Additionally, at the scene, the defendant told Lieutenant Cossette that she saw the motorcycle but did not think that it was coming "that fast." In her written statement, taken by Officer Ficara at the accident scene, the defendant stated that she saw the motorcycle, traveling northbound on Old Colony Road, come over the hillcrest. From behind the defendant's car, Gonzalez-Asik saw the motorcycle coming and thought to herself that the defendant was going to hit the motorcycle because she "knew [that the defendant] didn't see them."

Following a jury trial, the defendant was convicted of misconduct with a motor vehicle and assault in the third degree. She was sentenced to a total effective term of six years of incarceration, execution suspended after three years, followed by three years of probation. This appeal followed.

I

The defendant first claims that the state presented insufficient evidence to support her conviction of misconduct with a motor vehicle and assault in the third degree. Specifically, she argues that the state did not present sufficient evidence regarding the element of criminal negligence as to both offenses. We disagree.

We first set forth our standard of review. "It is well known that a defendant who asserts an insufficiency of the evidence claim bears an arduous burden.... When reviewing a claim of insufficient evidence, an appellate court applies a two part test.... We first review the evidence presented at trial, construing it in the light most favorable to sustaining the verdict .... [Second, we] ... determine whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt....

"[T]he jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. ... An appellate court defers to the jury's assessment of the credibility of witnesses on the basis of [its] firsthand observation of their conduct." (Citations omitted; internal quotation marks omitted.) State v. Thorne , 204 Conn. App. 249, 256–57, 253 A.3d 1021, cert. denied, 336 Conn. 953, 251 A.3d 993 (2021).

Misconduct with a motor vehicle and assault in the third degree both contain the element of criminal negligence. Section 53a-57 (a) provides: "A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person." Similarly, "[a] person is guilty of assault in the third degree when ... (3) with criminal negligence, he causes physical injury to another person by means of a ... dangerous instrument ...." General Statutes § 53a-61 (a).

General Statutes § 53a-3 (14) defines criminal negligence as the failure "to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation ...." Accordingly, "[u]nder § 53a-57, the state was required to prove that the defendant was operating a motor vehicle, that [s]he caused the death of another person, and that [s]he failed to perceive a substantial and unjustifiable risk that the manner in which [s]he operated [her] vehicle would cause that death. The failure to perceive that risk must constitute a gross deviation from the standard of care that a reasonable person would observe in the situation." (Emphasis omitted; internal quotation marks omitted.) State v. Daniels , 191 Conn. App. 33, 50, 213 A.3d 517, cert. dismissed, 333 Conn. 918, 217 A.3d 635 (2019), and cert. granted, 333 Conn. 918, 216 A.3d 651 (2019).

The defendant argues that the evidence was insufficient for a reasonable jury to determine that she acted with criminal negligence, as required for a conviction of both offenses. She contends that "[t]he events of this case occur every day. Everyone who drives knows the feeling of being slightly distracted by problems, conversations with passengers, and trying to get to a destination. ... [The defendant] suffered a momentary lapse in judgment when she was trying to make a left turn into a place she was not familiar with. She was not criminally negligent ...." (Citation omitted.)

In the present case, the evidence was sufficient to support the jury's conclusion that the defendant failed to perceive a substantial and unjustifiable risk while operating a motor vehicle. The defendant, as an operator of a motor vehicle, was "under a duty to exercise reasonable care ... and to keep a reasonable lookout for persons or traffic that ... she [was] likely to encounter." (Citation omitted.) State v. Carter , 64 Conn. App. 631, 642, 781 A.2d 376, cert. denied, 258 Conn. 914, 782 A.2d 1247 (2001). In a gross deviation from the standard of care that a reasonable person would...