State v. Ortiz
| Decision Date | 27 August 2002 |
| Docket Number | (AC 21636) |
| Court | Connecticut Court of Appeals |
| Parties | STATE OF CONNECTICUT v. OSWALDO ORTIZ, JR. |
Lavery, C. J., and Schaller and Bishop, Js. Joaquina Borges King, special public defender, for the appellant (defendant).
Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief were, Jonathan C. Benedict, state's attorney, and Robert M. Brennan, senior assistant state's attorney, for the appellee (state).
The defendant, Oswaldo Ortiz, Jr., appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), robbery of an occupied motor vehicle in violation of General Statutes § 53a-136a and robbery in the second degree in violation of General Statutes § 53a-135 (a) (1). We conclude that it was plain error for the court to fail to instruct the jury on the affirmative defense of inoperability of the gun involved in the incident at issue, as provided for in the text of § 53a-134 (a) (4) relative to the charge of robbery in the first degree, and to fail to instruct the jury on the lesser included offense of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) where there was uncontroverted evidence from two state's witnesses that the gun was inoperable. Accordingly, we affirm, in part, and reverse, in part the judgment of the trial court.
The jury reasonably could have found the following facts. On the evening of November 8, 1999, the victim, Scott Finch, left the Stop & Shop supermarket in Fairfield after buying groceries. As he waited in his vehicle at a traffic light on his way home, the victim was approached by Judith Basco, who asked him for a ride. The victim agreed and drove her, at her direction, to an underground garage in Bridgeport.
While in the garage, the defendant and Antonio Camacho approached. The defendant was carrying an automatic pistol. Basco told the victim that he would not be hurt if he gave them his money. The victim was forced out of the car and had his money, cellular phone and car taken from him.
The victim reported the incident to a security guard on patrol for the University of Bridgeport, who contacted the Bridgeport police. Two police officers drove to Maplewood Avenue and Poplar Avenue, a known location for the recovery of stolen vehicles. En route, they saw the victim's car, driven by the defendant, exiting the common driveway between 762 and 772 Maplewood Avenue. The defendant saw the officers and drove the victim's car onto the curb on Colorado Avenue where he and another male got out and ran into nearby rear yards.
Assisted by two officers from the Fairfield police department and a canine officer from the state police, a search commenced. The officers proceeded to the rear of the house at 762 Maplewood Avenue, where Fairfield police Detective Michael Gagner heard a male and female voice talking inside and observed car stereo speakers outside the apartment door. In response to Gagner's knock on the door and announcement of "police," Basco answered. Although she repeatedly told the officers that no one else was in the apartment, the defendant walked out of the bathroom after the canine officer announced that he was going to release the dog.
The police searched the apartment and found groceries that were the same as those that the victim had reported were in his car, and they found the victim's store receipt. They also found the pistol in the bathroom. The pistol had a loaded magazine and one bullet in the chamber. The defendant was arrested and charged in a substitute part A information with robbery in the first degree, robbery of an occupied motor vehicle and robbery in the second degree.1
At trial, the defendant claimed that he was not in the garage that evening. Rather, he testified that he was house-sitting in the apartment at 762 Maplewood Avenue and using drugs when Camacho and Ricardo Cruz arrived in the victim's car and told him that they and Basco had robbed the victim. On cross-examination, the defendant admitted that he had driven the victim's car, but only to get it out of the driveway for the people for whom he was house-sitting.
Camacho testified for the state. He stated that he originally found the gun but that the defendant used it. He testified that he knew that the gun did not work because the firing pin was broken. Later in the state's case, its expert witness, Edward Jachimowicz, a firearms and tool mark examiner at the department of public safety's forensic science laboratory, also testified as to the gun's inoperability:
The jury found the defendant guilty of all three charges, and judgment was rendered accordingly. He was sentenced to a total effective sentence of twentythree years incarceration. The defendant thereafter appealed. In addition to his claim that the court violated his constitutional right to a fair trial and committed plain error by not instructing the jury on the affirmative defense that the pistol was inoperable, he raises two claims stemming from the court's denial of his motions for a judgment of acquittal. First, he argues that the evidence conclusively showed inoperability. He also argues that the evidence was insufficient to identify him as the perpetrator.
The defendant claims that the court violated his constitutional right to a fair trial and committed plain error by not giving a jury instruction, sua sponte, on the affirmative defense of inoperability of the weapon where there was uncontroverted evidence by two of the state's witnesses to that effect. We agree that this was plain error in those circumstances. Section 53a-134 (a) provides in relevant part: (Emphasis added.) Robbery in the second degree in violation of § 53a-135 (a) (2) has the same elements as § 53a-134 (a) (4), but does not have the affirmative defense of inoperability. See State v. Hawthorne, 175 Conn. 569, 571-72, 402 A.2d 759 (1978).
At oral argument, the state noted that operability is not an element of robbery in the first degree. See General Statutes § 53a-134 (a) (4); State v. Hawthorne, supra, 175 Conn. 573. Accordingly, the state was not required to prove that the gun was operable; see State v. Hawthorne, supra, 573-74; or, for that matter, that the weapon was a gun; see, e.g., State v. Bell, 188 Conn. 406, 414-15, 450 A.2d 356 (1982); as long as the defendant had "represented" it to be a gun.
Because inoperability is an affirmative defense, the defendant was required to raise and prove it by a preponderance of the evidence. See General Statutes § 53a-12 (b). Although the claim is unpreserved, the defendant argues that the court's failure to instruct, sua sponte, was a constitutional violation and plain error.
We generally do not review unpreserved instructional claims, as we are not bound "to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered...." Practice Book § 42-16. As we reiterated recently in State v. Marrero, 66 Conn. App. 709, 718, 785 A.2d 1198 (2001), an improper instruction on an affirmative defense is not of constitutional magnitude and is not entitled to Golding2 review. It may be reviewed, however, under the plain error doctrine. See id., 719-20.
Pursuant to Practice Book § 60-5, although we "shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial," we may, "in the interests of justice notice plain error not brought to the attention of the trial court...." Success on such a claim is rare. ...
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