State v. Montanez, No. 17087.

• Citation: 894 A.2d 928,277 Conn. 735
• Decision Date: 18 April 2006
• Docket Number: No. 17087.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. German MONTANEZ.

894 A.2d 928

277 Conn. 735

STATE of Connecticut v. German MONTANEZ.

No. 17087.

Supreme Court of Connecticut.

Argued October 28, 2005.

Decided April 18, 2006.

COPYRIGHT MATERIAL OMITTED

Pamela S. Nagy, special public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were James E. Thomas, state's attorney, and, on the brief, Sandra Tullius and Donna Mambrino, senior assistant state's attorneys, for the appellee (state).

SULLIVAN, C.J., and NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The defendant, German Montanez, appeals from the judgment of conviction, rendered after a jury trial, of two counts of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-55a(a) and 53a-8 and one count of assault in the first degree as a principal or accessory in violation of General Statutes §§ 53a-59(a)(5) and 53a-8. On appeal, the defendant claims that the trial court improperly: (1) instructed the jury regarding the principle of general intent; (2) instructed the jury regarding the "combat by agreement" exception to self-defense; and (3) failed to instruct the jury that, in the context of accessorial liability, self-defense properly may be considered from the perspective of the principal actor. We agree with the defendant's third claim, which is dispositive of this appeal. We accordingly reverse the judgment of the trial court and remand the case for a new trial. We also address the merits of the defendant's first and second claims because they are likely to arise on retrial.¹

The jury reasonably could have found the following facts regarding the relevant events and the physical setting in which they occurred. The rectangular property at 37-39 School Street in Hartford is approximately fifty feet wide and 175 feet deep. It abuts School Street to the north, another residential property to the west, a supermarket's loading dock area to the south, and a large, paved parking lot of a convalescent home to the east (large parking lot).

Near the front of the property, facing School Street, stands a three-story apartment house nearly as wide as the property itself. Behind the apartment house is a paved parking area equally as wide as the property. The parking area is connected to School Street only by a nine foot wide driveway that abuts the apartment house on the west and the property line on the east. With the exception of the side of the property abutting School Street, the property is surrounded by hedges approximately ten feet in height or a chain link fence approximately six feet in height or both. Thus, aside from a well traveled breach in the fence at the extreme back of the property, i.e., the southern property line, the driveway forms the sole means of access to and from the parking area.

The apartment house has a front interior stairwell facing School Street and a back interior stairwell leading into the parking area. Each apartment in the building is accessible through both the front and back stairwells.

The defendant moved into an apartment at 37-39 School Street² sometime in the summer of 1995 and, after arriving, intermittently exchanged dirty looks with David Arce, a resident of the neighborhood. Shortly before dusk on the evening of August 14, 1995, Arce encountered the defendant and the defendant's friend, Jorge Ramos, on the sidewalk in front of 37-39 School Street. The defendant asked Arce why he was "staring at him wrong." Arce replied that if the defendant had a problem with him, he should say so. While displaying a pistol tucked in his waistband, Ramos urged Arce to fight with the defendant. Arce declined to fight but left the area indicating that he would return with his brother, Angel Arce.

David Arce, who had been drinking beer before encountering the defendant and Ramos, returned to School Street a few minutes later with his older brother, Angel Arce, who also had been drinking.³ The Arces' friends, Robert Brown and Randy Medina, joined them in the large parking lot adjacent to 37-39 School Street. The defendant and Ramos then confronted the Arces and their friends as they were standing in the large parking lot. Ramos quickly removed his gun from his waistband and pointed it at Angel Arce. Angel Arce told Ramos to "put the gun down" and invited Ramos to "fight man-to-man...." Angel Arce also told Ramos, "if you're gonna pull the trigger ... pull it, [I'm not] afraid to die." Ramos pulled the trigger, but his gun "click[ed]," and he then struck Angel Arce with his free hand. Brown accused Ramos of brandishing an unloaded gun. The defendant and Ramos slowly walked backward along the School Street sidewalk toward 37-39 School Street as the Arces' group followed them at a distance of one or two yards.

During the confrontation in the large parking lot, word had spread throughout the neighborhood that the Arces were being threatened at gunpoint. By the time that the defendant and Ramos reached the foot of the driveway at 37-39 School Street, the arrival of additional friends had swelled the size of the Arces' group to at least eight. The defendant and Ramos backed slowly down the driveway, Ramos on the side of the driveway nearest the fence and the defendant nearest the apartment house. As they did so, most of the Arces' group continued to follow them. Angel Arce led the group, walking toward the defendant and Ramos with his hands extended away from his body while maintaining a separation of one or two yards. Brown walked slightly behind and to the side of Angel Arce. Medina and David Arce followed behind Brown and Angel Arce, and other members of the group followed at various intervals along the driveway.

Angel Arce was shirtless throughout the encounter. This fact, combined with his conciliatory hand gestures, gave him the appearance of being unarmed. The other members of the Arces' group, however, did nothing to indicate to Ramos and the defendant that they were unarmed. As Angel Arce walked down the driveway of 37-39 School Street with the others in his group, he continued to instruct Ramos to put the gun down while Ramos repeatedly told the assembled group to "back up."

When the defendant and Ramos reached the back of the apartment house, the defendant ducked into the house's back stairwell. This motion went unnoticed by the members of the Arces' group, who continued to advance toward Ramos into the parking area behind the apartment house. Approximately halfway between the back of the apartment house and the fence at the rear of the property, Ramos abruptly stopped walking backward. Brown began to move around Ramos' side while Angel Arce stood in front of Ramos. David Arce, perhaps sensing that the situation had arrived at a dangerous impasse, suggested to Angel Arce that they should "get out of here."

At that moment, the defendant reemerged from the back of the apartment house with a handgun and, from his position behind the Arces' group, opened fire in the direction of the group. Ramos also opened fire, first hitting Brown in the right leg and chest. Ramos then turned to Angel Arce and shot him once in the chest. Medina, David Arce and the other members of the Arces' group turned and ran up the driveway when the shooting began, retracing their steps toward School Street.⁴ When they finished shooting, Ramos and the defendant fled, presumably through the breach in the fence at the rear of the property. Brown and Angel Arce both died at the scene from their gunshot wounds. Subsequent forensic testing revealed that Ramos had inflicted Brown's and Angel Arce's fatal wounds.⁵

The jury returned a guilty verdict against the defendant on all three counts with which he was charged, and the court rendered judgment in accordance with the jury's verdict, sentencing him to a total effective sentence of fifty-six years incarceration. The defendant appealed directly to this court pursuant to General Statutes § 51-199(b)(3).

The defendant now challenges the trial court's jury charge on three grounds, each of which implicates a constitutional right. When a challenged jury instruction implicates a constitutional right, "the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict." State v. Whitford, 260 Conn. 610, 619, 799 A.2d 1034 (2002). As we previously have stated, a jury charge is "considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts," even when the appellant challenges only an individual component of the charge. (Internal quotation marks omitted.) State v. DeJesus, 260 Conn. 466, 473, 797 A.2d 1101 (2002). We analyze a challenged jury charge for its fair presentation of the case to the jury "in such a way that injustice is not done to either party under the established rules of law." (Internal quotation marks omitted.) Id. If the charge is "correct in law, adapted to the issues, and sufficient for the guidance of the jury," we will not deem it improper. (Internal quotation marks omitted.) Id.

I

The defendant first claims that the trial court improperly instructed the jury regarding both specific intent and general intent because the crimes with which the defendant was charged required only an instruction on specific intent.⁶ See General Statutes § 53a-59(a)(5) (assault in first degree by means of discharge of firearm requires proof of "intent to cause physical injury to another person"); State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973) (manslaughter in first degree requires proof of specific intent "to cause serious physical injury to another person" [internal quotation marks omitted]). The defendant argues that the trial court's instruction on general intent⁷ "misled the jury into believing that [the] defendant could be guilty of [the crimes with which he was charged] if he had the intent to engage in the conduct of using a firearm...