State v. Maia

• Decision Date: 19 May 1998
• Docket Number: No. 16931,16931
• Citation: 48 Conn.App. 677,712 A.2d 956
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Derek MAIA.

Page 956

712 A.2d 956

48 Conn.App. 677

STATE of Connecticut v. Derek MAIA.

No. 16931.

Appellate Court of Connecticut.

Argued Feb. 26, 1998.

Decided May 19, 1998.

Pamela S. Nagy, Assistant Public Defender, for appellant (defendant).

Christopher T. Godialis, Assistant State's Attorney, with whom, on the brief, was John A. Connelly, State's Attorney, for appellee (State).

Before LANDAU, SCHALLER and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant, Derek Maia, appeals from a judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). ¹ On appeal, the defendant claims that the trial court improperly (1) charged the jury that intoxication was relevant only to negate the specific intent required for murder and failed to instruct that it could also be affirmative proof of recklessness for the lesser included offenses, (2) shifted and diluted the state's burden of proof in its charge on intoxication, (3) charged the jury regarding the statutory definition of intent and (4) commented on the defendant's interest in the outcome of the case. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 29, 1993, a community newspaper association known as Da Ghetto held a fund raising Halloween party at the Casa Mia restaurant in Waterbury. The purpose of the event was to raise money so that Da Ghetto could purchase a computer. The admission to the party was $5, unless the guest wore a costume, in which case admission was $4. Food and beer were provided to the guests and a prize was to be awarded for the best costume.

Casa Mia was filled to capacity during the party. The defendant arrived between 11 and 11:30 p.m. Upon his arrival, the defendant complained about having to wait outside for a long time before he was admitted inside. The party had been planned to continue until 2 a.m. on October 30, 1993. At some point, however, Mark Yates, the senior editor of Da Ghetto, announced that the party was ending early because of "inappropriate conduct." People at the party became upset after that announcement was made.

The defendant angrily confronted Yates about ending the party early, and demanded his money back. Yates did not have any small bills and gave the defendant $20. The defendant then had an altercation with Leroy Flint, an employee of Casa Mia and the boyfriend of the restaurant owner, Delores Trudeau, and had further altercations with his brother and his cousin when they tried to calm him, and with Yates' brother. The defendant, who was described as acting "like a typhoon," pushed and shoved anyone who was in his path. Trudeau overheard the defendant state that "someone was going to stop breathing."

The defendant eventually left Casa Mia with his friend, Brian Brown. The defendant and Brown drove to the house where Brown's girlfriend lived. Once there, Brown went inside and the defendant waited in the car. After about five minutes, Brown returned and gave the defendant a bag containing a gun. The defendant and Brown then proceeded back to Casa Mia. ²

At approximately 1 a.m. on October 30, 1993, Martin Hayre, Michael Millhouse and the victim, Christopher Love, were leaving Casa Mia together. Hayre and the victim walked out of Casa Mia and waited on the curb for Millhouse to come with his car. When Millhouse pulled his car up, the victim opened the front passenger door and Hayre opened the right rear door. As they were getting into the car, the defendant approached, said something to the victim, ³ and then shot the victim in the face. The victim died of a gunshot wound to the head.

At trial, the defendant admitted that he was responsible for the victim's death. He testified, however, that he did not intend to take the victim's life. The defendant testified that he had been drinking and had smoked marijuana that night. He testified that he did not leave the gun in the car when he and Brown returned to Casa Mia because he had been in previous arguments at the bar and had been jumped by several people. He testified that he approached the victim and wanted to talk to him about the way the party was ended. At that time, the gun was in the defendant's shirt pocket, with the handle hanging out. The defendant testified that he heard footsteps behind him, and that as he was going to turn around, he was "yanked from the back by [the] hood." His arm then went up and the gun went off.

The defendant was convicted of murder and sentenced to a term of sixty years imprisonment.

I

The defendant first argues that the trial court improperly instructed the jury regarding intoxication and manslaughter under General Statutes §§ 53a-55 (a)(3) and 53a-56 (a)(1). Specifically, the defendant claims that by limiting the jury's use of evidence of intoxication to negate the specific intent required for murder, and by failing to instruct the jury on intoxication as proof of recklessness, the defendant was deprived of due process. ⁴

As an initial matter, we note that the defendant did not file a request to charge on intoxication or on the lesser included offenses, and did not object to the court's instructions. The defendant, nonetheless, argues that this claim is reviewable on appeal pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), ⁵ or, alternatively, under the plain error doctrine as set forth in Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5. ⁶ We disagree.

In State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991), the defendant, like the defendant in the present case, was convicted of murder in violation of § 53a-54a (a). On appeal, the defendant claimed, inter alia, that his federal and state constitutional rights had been violated by the trial court's charge to the jury. Specifically, the defendant took issue with the trial court's charge that evidence of his intoxication should not be considered in determining whether he had possessed the mental state of recklessness necessary for conviction of the lesser included offenses of manslaughter in either the first or second degree. The defendant sought review of this claim pursuant to Golding or, alternatively, as plain error.

Our Supreme Court declined to afford Golding review to this claim, stating that "[b]ecause a lesser included offense instruction is purely a matter of common law, and therefore does not implicate constitutional rights ... the defendant has failed to satisfy the second condition of Golding." Id., at 659, 588 A.2d 127. The Supreme Court likewise concluded that this claim was not reviewable as plain error, stating that "[s]ince the jury, having been instructed not to consider lesser included offenses unless it found the defendant not guilty of the greater offense of murder, found the defendant guilty of murder, we cannot say that the instruction challenged by the defendant undermined the fairness of his trial or resulted in a manifest injustice to him." Id., at 660, 588 A.2d 127; ⁷ see also State v. Austin, 244 Conn. 226, 240-41, 710 A.2d 732 (1998).

We conclude, on the basis of State v. Ortiz, supra, 217 Conn. at 658-60, 588 A.2d 127, that the defendant's claim is not reviewable pursuant to Golding or the plain error doctrine. ⁸

II

The defendant next argues that the trial court improperly instructed the jury in connection with intoxication that the state had the burden of proving "that the defendant was capable of forming the required intent" for murder. According to the defendant, the trial court charged that to negate specific intent, the intoxication evidence must show that the defendant was "incapable" of possessing the required intent, and that this incapacity was the threshold for consideration of intoxication evidence. The defendant argues that this charge impermissibly shifted and diluted the state's burden to prove intent beyond a reasonable doubt. We disagree.

We initially note that the defendant did not file a request to charge and did not except to the charge as given. He therefore requests review of this claim pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, and, alternatively, as plain error. This claim is reviewable under Golding "because it alleges that there was a shifting or diminishing of the state's burden of proof and that there was constitutional error in the instructions on intent, which constitutes a violation of a fundamental constitutional right." (Internal quotation marks omitted.) State v. Burgos, 37 Conn.App. 404, 416, 656 A.2d 238, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).

We conclude, however, on the basis of our review of the charge as a whole, that it is not reasonably possible that the jury was misled as to the scope of the state's burden of proof on the element of specific intent and the relationship of intoxication to that burden. ⁹ The trial court instructed the jury as to the statutory definition of intoxication and then addressed that portion of the statute providing that intoxication is not a defense to a criminal prosecution but may be considered to negate the requirement of intent. General Statutes § 53a-7. The court then charged that "[i]f you find that the defendant was intoxicated at the time of the crime, you may take this fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required specific intent which is a necessary element for the commission of a crime." The trial court then made further references to the defendant's "capability" of forming the required intent. See footnote 4. Later, in connection with the court's charge on the specific elements of the crime charged, the court repeatedly instructed the jury that the state had the burden of proving specific intent beyond a reasonable doubt. See footnote 11. Instructions similar or identical to the charge given have been upheld by our Supreme Court in State v. Austin...