State v. Ortiz

• Decision Date: 01 June 2004
• Docket Number: (AC 23831)
• Citation: 848 A.2d 1246,83 Conn. App. 142
• Parties: STATE OF CONNECTICUT v. LUIS ORTIZ.
• Court: Connecticut Court of Appeals

83 Conn. App. 142

848 A.2d 1246

STATE OF CONNECTICUT v. LUIS ORTIZ.

(AC 23831)

Appellate Court of Connecticut.

Argued February 23, 2004.

Officially released June 1, 2004.

Foti, Flynn and West, Js.

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

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Vicki Melchiorre, senior assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, Luis Ortiz, appeals from the judgment of conviction, rendered after a trial to the court, of assault in the first degree with intent to cause serious physical injury in violation of General Statutes § 53a-59 (a) (1), kidnapping in the second degree in violation of General Statutes § 53a-94, threatening in violation of General Statutes § 53a-62 (a) (1), carrying a dangerous weapon in violation of General Statutes § 53-206 (a) and criminal violation of a protective order in violation of General Statutes § 53a-223 (a).¹ The defendant received a total effective sentence of thirty years of incarceration, execution suspended after twenty years, and five years of probation.² Among the several conditions of probation it imposed, the court prohibited the defendant from having any contact with the victim and their three children. On appeal, the defendant contends that (1) the trial judge was required to recuse himself from presiding over the trial to the court because of admissions made in front of him by the defendant prior to trial, (2) the kidnapping statute is void for vagueness under the facts of this case, (3) the condition of probation mandating "no contact" with the defendant's minor children is illegal and (4) the defendant's sentence for carrying a dangerous weapon is illegal.

The court reasonably could have found the following facts. The victim, Lourdes Suarez, was a woman with whom the defendant has lived and conceived three children. The defendant and the victim both worked for a West Hartford toy store and were required to work late. On the evening of November 14, 2000, the victim and the defendant were on their way home from work when the victim became frightened that the defendant might inflict harm on her because he was angry about missing a meeting with his drug dealer. Seeking help, she stopped at a police substation on Affleck Street in Hartford. After the victim rang the outside doorbell and no one answered, the defendant put his arms around her waist, and picked her up off of the ground and carried her out of the substation's doorway. The defendant showed her an open box cutter and then grabbed her by her jacket as she attempted to run away. He held her wrists together with one hand while he used his other hand to cut her face numerous times. The victim then fell to the ground, and the defendant again held her wrists with one hand while he used his other hand to cut her deeply on her hand and leg. Two individuals arrived at the scene, and the defendant fled. The victim was required to spend four days in a hospital, including two days in intensive care. She received multiple stitches and required surgery on her face to repair the nerves that had been damaged by the attack. She has since suffered from posttraumatic stress disorder and has attempted suicide on five occasions.

The defendant elected to testify at trial. When asked whether he denied injuring the victim, he replied: "[N]o. . . From the beginning I've been saying . . . that I did it. . . . It's not that I'm proud of what I've done because I feel like I was a coward for what I did . . . . I did it, you know." The defendant also testified that after he left the scene of the attack, he saw a police car drive past him, and he beckoned the officer to stop. At this point, the defendant testified, he told the officer, "I did it," and the officer drew his weapon. The defendant further testified that when he was placed in the police car, he told the officer "that I did what I did," and that he was not proud of it and deserved to be punished. Although the testimony of the arresting officer, David Dufault, disputed the manner in which the defendant claimed that he was apprehended, it nonetheless corroborated the defendant's testimony regarding his admission of guilt. Dufault testified that the defendant "threw his hands up in the air and started saying, I did it. I did it. I did it. I deserve what I get. Tell [the victim] I'm sorry."

The following procedural history is pertinent. The defendant had first elected a jury trial on the charges that are now the subject of this appeal and one additional charge of attempt to commit assault in the first degree on which he was found not guilty. The court, Miano, J., expressed its concern that the defendant's chosen manner of dress might affect his right to a fair trial. While the case was still to be heard by a jury, the defendant appeared dressed in a red prison jumpsuit and expressed his reluctance to change out of it. In addressing the defendant on this subject, the court stated, "I had a brief discussion with the lawyers this morning, and they said—really, I think this is—it's good if you have any—if somebody admits their involvement, I think that should be factored into any kind of sentence or penalty if they're involved. However, now, when we have a panel, I don't want you to say anything that might be an admission or a confession or anything concerning, admitting to your commission of the crime. Because right now, it's our job, it's my job to convince them what the law is. And the law is that you're presumed to be innocent unless and until the state can prove you guilty. If you're in the red outfit and you said, hey, I did it, but the time is too much or whatever, their job is going to be done for them. They're going to come back in eight seconds and say guilty. Now . . . that reflects on me and this court because I have to guarantee you, as much as I humanly can, a fair trial."

Although at that juncture the court had not invited the defendant to say anything about the case, the defendant responded: "I'm not saying I'm not guilty, and it's not because I'm proud of it. Like I told the judges before, just because I'm saying that I'm guilty doesn't mean that I'm proud of it. Because I'm not proud of hurting my—the woman that I thought I was going to marry for the rest of my life, the mother of my kids. . . . You know, but I just said the truth. I tell the truth, maybe the judge will have some consideration and maybe give me less time. I know that what I did is something serious. I'm not denying that. You know. I could have done something worse . . . ."

The court again cautioned the defendant not to say anything incriminatory in front of the jury, stating, "[w]hatever negotiations there were, I don't want to know, but apparently, there was no meeting of the minds. Apparently, my guess is, the state was looking for more time than you are, but that's their call. I can't force the state to accommodate you or any defendant in what the offer is going to be. So, now we're past that juncture about the negotiation of the case, on what you're going to get, what you're not going to get. Are you going to get more, are you going to get less; we're past that. You have a right to a trial. So, this is your trial. . . . What I am doing is asking you, I'm begging you not to say anything in front of the jury about whether or not you're involved. You have a right to a trial. You have a right not to offer evidence. You have a right not to say anything. If, down the road, when it's your turn, you want to take the [witness] stand and say something, that's up to you and your lawyer. But if it's going to be done, if you want to communicate with the jury, it's got to be done in the orderly process of the case, and I would strongly urge you not to say anything in front of the jury that might hurt you."

The defendant later waived his right to a jury trial and elected to be tried by the court, which convicted him on all charges but attempt to commit assault in the first degree. The defendant now appeals from his conviction.

I

We first address the defendant's claim that the convictions must be reversed because, although the defendant never moved to recuse the trial judge, the judge had an obligation to recuse himself, sua sponte, where he had heard the defendant, prior to trial, make admissions on the record relating to his guilt. We disagree.

The defendant concedes that this issue is unpreserved but urges us that it is nonetheless reviewable under the plain error doctrine.³ See Practice Book § 60-5. Alternatively, the defendant claims we should review this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the sixth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8, guarantee a criminal defendant a fair trial.

Although the defendant's claim meets Golding's first two prongs because the record is adequate for review and the claim is of constitutional magnitude; id., 239; we conclude that the defendant's claim fails because he cannot satisfy Golding's third prong, which requires him to show that a constitutional violation clearly exists and clearly deprived him of a fair trial.

We first observe that the record before us indicates that the defendant had made admissions to several other judges before appearing before Judge Miano. The defendant also advised the court that he had been offered by the state, but had not accepted, a twelve year sentence in exchange for his guilty plea.⁴ The trial judge declined to recuse himself when that information was made known to him because he observed that the defendant serially had made this known to other judges to a degree of frequency he described as "ad saturatum." The court further advised that either party could request the court's disqualification, but stated that "if a defendant goes [to] one...