State v. Millan

• Citation: 966 A.2d 699,290 Conn. 816
• Decision Date: 24 March 2009
• Docket Number: No. 18214.,18214.
• Parties: STATE of Connecticut v. Cristobal MILLAN, Jr.
• Court: Supreme Court of Connecticut

966 A.2d 699

290 Conn. 816

STATE of Connecticut v. Cristobal MILLAN, Jr.

No. 18214.

Supreme Court of Connecticut.

Argued November 20, 2008.

Decided March 24, 2009.

Glenn W. Falk, special public defender, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the

brief, were John A. Connelly, state's attorney, and Eva Lenczewski, supervisory assistant state's attorney, for the appellee (state).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and SCHALLER, Js.

KATZ, J.

The defendant, Cristobal Millan, Jr., appeals¹ from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(1)² and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48³ and 53a-59(a)(1). The defendant claims on appeal that: (1) there was insufficient evidence to support the conspiracy conviction under § 53a-59(a)(1); and (2) the admission of uncharged prior misconduct evidence was harmful error. We affirm the trial court's judgment.

The jury reasonably could have found the following facts. On March 21, 2005, Lamarr Sands and his girlfriend, Charie Matos, were staying at the Super 8 Motel (motel) located at the intersection of Scott Road and Schraffts Drive in Waterbury. They had been staying there for several weeks, most recently in room 215. Unbeknownst to Sands and Matos, by coincidence, Darren Madison, a friend with whom Sands recently had had a falling out, was staying in room 214 of the motel on that date. Rooms 214 and 215 are immediately adjacent to each other, their doors only one to two feet apart. The rooms are located on the second floor of the motel and are accessible only by exterior hallways and stairwells.

Sometime during that evening, Sands and Madison encountered each other at the motel. Subsequently, at approximately 10 p.m. that same evening, Jeffrey Smith arrived at the motel to visit Sands and Matos. Smith observed Sands and Madison engaged in a heated argument either in the hallway outside rooms 214 and 215 or inside of room 214. Madison left the motel after making a comment that indicated to Smith and Sands that he was going to return after meeting or picking up his "boys." Smith remained at the motel out of concern that Sands would be outnumbered in a fight upon Madison's return.

After Madison left the motel, he drove to the Save-A-Lot store on North Main Street in Waterbury, where the defendant, with whom Madison was friends, worked as a stocker. As a stocker, the defendant regularly used a "cutting blade," commonly referred to as a box cutter (hereinafter knife), that his employer provided for cutting plastic wrapped pallets or boxes. The knife had a retractable razor, with one sharpened edge that came to a point housed in a thin plastic casing. Madison picked the defendant up following his shift at approximately 10 p.m. and, at some point before the two arrived back at the motel, Madison told the defendant about the previous encounter with Sands. The defendant was carrying his work issued knife in his back pocket. While they were in Madison's car or shortly after they arrived back at the motel, the defendant telephoned Valerie Vicente, a friend with whom he recently had become more intimate. Vicente told the defendant that she was with two male friends. The defendant asked Vicente to come to the motel with the two males.

Soon thereafter, Madison, the defendant, Vicente and her two male friends stood outside of Sands' motel room. At least one of the persons in that group began banging on the door to Sands' room and taunted him to come out. The banging continued for several minutes. When the taunts turned to sexual comments about Matos, Sands could not restrain himself any longer and went into the hallway to confront Madison. Smith followed Sands into the hallway. Sands swung at Madison, and the two started fighting. As the defendant and one of Vicente's male friends moved to join in the fight, Smith told them not to intervene and that the fight was between Sands and Madison. The defendant then swung his fist toward Smith. In response, Smith grabbed the defendant, held him in a "reverse headlock"—the defendant facing Smith with his head down—and punched the defendant with uppercuts, bloodying the defendant's nose. Smith and the defendant fell backwards onto the floor of Sands' motel room, where they stopped fighting and got to their feet. Smith offered the defendant his hand, saying that this was not "their fight...." At that point, one of Vicente's male friends who was in the motel room remarked to the defendant that Smith "had messed [the defendant] up pretty bad." The defendant looked in the mirror, saw his bloodied nose and pulled the knife out of his pocket. Smith took a step back, and the defendant yelled to the other male to hit Smith with a desk chair that was in the room. The male picked up the chair and grazed Smith with it. Smith ducked to avoid being hit by the chair, and his feet became entangled in the comforter hanging from the bed, causing Smith to fall to the floor on his knees and elbows. The defendant then went over to Smith, stood behind and over him and began slashing him with the knife. The other male who had swung the chair at Smith yelled to the defendant, "slash his throat, slash his throat." Smith remained on his knees and tried to protect his throat and face with his arms, as the defendant continued to slash him.

At some point while the defendant and Smith fought, the fight between Sands and Madison ended. The defendant stopped slashing Smith, left the motel room and drove away from the motel with Madison. Madison drove the defendant to a nearby gas station, where the defendant washed up, changed his bloodied shirt into a clean one that Madison gave him and threw away the knife. Thereafter, the defendant fled the state and went to his father's house in Virginia, where police eventually located him.

The morning after the assault, Smith sought treatment at Waterbury Hospital because his wounds would not stop bleeding. An examination revealed that he had sustained seven slash or stab wounds—two to his head, which cut his forehead and ear, one to his chin, one to the back of his head, two to his back and one to his upper abdomen and chest. Some of the cuts went into the subcutaneous tissue, which is below the layer of fatty tissue that lies directly below the skin. One of the cuts to Smith's head had severed his temporal artery. As a result, by the time he arrived at the hospital, Smith had lost approximately two pints of blood, or 15 to 20 percent of his total blood volume.

The record reveals the following additional undisputed facts and procedural history. At trial, over the defendant's objection, the state introduced the following evidence through testimony from Matos and Sands regarding the incident that had led to the falling out between Sands and Madison. Sometime in early 2005, before the incident at the motel, Sands and Matos were sitting in Sands' car at the Fairmount Projects in Waterbury when Madison pulled up next to them in his car. The defendant and another male got out of Madison's car, pulled Sands from his car to the ground, assaulted him and took his gold bracelet and money. Madison watched from his car and laughed while the incident occurred.

The defendant thereafter testified, claiming that he had acted in self-defense when he slashed Smith. Specifically, he testified that Smith had been the initial aggressor and that he had used his knife against Smith while Smith had him in the headlock, after he had been unable to break free and was being choked by the headlock. The jury returned a verdict of guilty on one count of assault in the first degree in violation of § 53a-59(a)(1), with Smith being the victim of the assault, and one count of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59(a)(1), with Sands being the victim of the conspiracy.⁴ The trial court rendered judgment in accordance with the verdict and imposed a total effective sentence of fourteen years imprisonment and six years special parole. This appeal followed.

The defendant contends that (1) there was insufficient evidence of an agreement to use a dangerous instrument to support the conspiracy charge, and (2) the trial court improperly admitted the prior uncharged misconduct evidence relating to his involvement in Sands' assault at the Fairmount Projects. We reject both claims.

I

We first address the defendant's claim that there was insufficient evidence to support his conviction of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59(a)(1). As charged to the jury, the state was required to prove that the defendant was a party to an agreement to assault Sands with a dangerous weapon. The defendant contends that the evidence does not show that anyone else knew, prior to the fight, that he possessed a dangerous instrument, and, therefore, there was no direct or circumstantial evidence of an agreement to carry out an assault with a knife or any other kind of dangerous instrument. The state responds that there was sufficient evidence to support this conviction. In addition to evidence relating to the knife, the state points to evidence that one of the assailants swung a chair at Smith. The state also urges us to adopt the position taken by some jurisdictions, under which body parts can be a dangerous instrument under certain circumstances, and to conclude that the jury properly could have found that the "multiple fists" of the conspirators in the present case constituted a dangerous instrument under General Statutes §§ 53a-3(7)⁵ and 53a-59(a)(1). In his reply brief, the defendant contends that we should disregard the state's "multiple fists as a dangerous instrument" argument because the trial court offered no such instruction to the jury.

We conclude that there was...