State v. Ramos
| Citation | 661 A.2d 606,36 Conn.App. 831 |
| Decision Date | 13 September 1995 |
| Docket Number | No. 12487,12487 |
| Parties | STATE of Connecticut v. Reinaldo RAMOS. |
| Court | Appellate Court of Connecticut |
Kent Drager, Asst. Public Defender, for appellant (defendant).
Linda N. Howe, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and John Blawie, Asst. State's Atty., for appellee (State).
Before LANDAU, SCHALLER and SPEAR, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 1 and 53a-54a(a), 2 robbery in the first degree in violation of General Statutes § 53a-134(a)(2), 3 and carrying a pistol on his person without a permit in violation of General Statutes §§ 29-35 4 and 29-37(b). 5 The jury did not render a verdict on the alternative charge of assault in the first degree in violation of General Statutes § 53a-59(a)(1). The defendant claims that the trial court improperly (1) disallowed a requested instruction to the jury on reckless assault in the second degree as a lesser included offense of the alternative charge of intentional assault in the first degree, (2) disallowed the defendant's cross-examination of an eyewitness about her feelings and reactions to watching a shooting, (3) failed to grant the defendant's motion to preclude the eyewitness' testimony even though she had viewed the defendant in shackles, and (4)(a) instructed the jury panel by providing a misleading and prejudicial example of the function of the presumption of innocence, (b) allowed the prosecutor to commit misconduct, (c) instructed the jury concerning its duty, and (d) instructed the jury in a manner that diluted the state's burden of proof beyond a reasonable doubt. 6 We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On September 16, 1991, Carmen Ortiz, a resident of Father Panik Village, was looking out her window onto the courtyard when she saw a Caucasian man, the victim, seated outside. The victim was holding a key chain and what appeared to Ortiz to be a $10 bill. A Hispanic male carrying a gun approached the victim and demanded his money. After the victim refused to hand over the money, the man pointed the gun at the victim's head. After shooting the victim in the side of the head, the man grabbed the money and ran. Ortiz, a certified nurse's aide, went into the courtyard to give the victim first aid. The victim survived the attack.
Ortiz recognized the Hispanic man as someone known as Indio, a person whose muscular physique she had admired in the past. Having given the police a sworn statement describing the robbery incident, Ortiz identified the perpetrator from a photographic array containing a picture of a man known as Indio. The picture that she chose was that of the defendant. The victim later positively identified the defendant as the robber. The defendant was arrested for the robbery and the shooting.
In addition to charging the jury on robbery in the first degree and carrying a pistol without a permit, the trial court instructed the jury that the attempted murder and first degree assault were alternative charges, with respect to which the jury could find the defendant guilty of one or neither but not both.
The defendant claims that the trial court improperly declined the defendant's request to instruct the jury on reckless assault in the second degree as a lesser included offense of intentional assault in the first degree. The defendant argues that whether the gun was fired intentionally or recklessly was a question for the jury to decide and, therefore, the trial court should have allowed the jury to consider the lesser included offense. We disagree.
The trial court's refusal to "instruct the jury on warranted lesser included offenses cannot be held harmless merely because the defendant was convicted of a greater offense...." State v. Hall, 213 Conn. 579, 588, 569 A.2d 534 (1990); see State v. Monte, 131 Conn. 134, 137, 38 A.2d 434 (1944). State v. Sivri, 231 Conn. 115, 138, 646 A.2d 169 (1994).
The state argues that the defendant failed to meet all four Whistnant conditions. We enter the Whistnant analysis through the third condition. See State v. Rasmussen, 225 Conn. 55, 66, 621 A.2d 728 (1993). In order for the defendant to satisfy the third prong of Whistnant, he must offer some evidence justifying conviction of the lesser crime. State v. Sivri, 231 Conn. at 138-39, 646 A.2d 169.
In this case, the state offered ample evidence from which the jury reasonably could have found that the defendant possessed the intent to kill the victim. No evidence was educed from which the jury could reasonably have inferred that the gun was fired recklessly. The defendant was carrying a gun when he approached the victim and demanded his money. After the victim refused, the defendant raised his gun to the victim's head and shot him. There was no evidence that this was a sudden or spontaneous incident that caused the victim to suffer a near fatal injury. See State v. Sivri, supra, 231 Conn. at 139, 646 A.2d 169. The defendant did not accidentally get caught up in an unexpected incident that resulted in the victim's injury. On the contrary, the evidence indicated that the defendant created the incident. The defendant not only decided to rob the victim, but also chose to use a gun to commit the crime. The only reasonable inference that the jury could have drawn is that the defendant either intended to kill or intended to cause serious physical injury when he pointed the gun to the victim's head before he fired the weapon. Our Supreme Court in Sivri found that the third prong of Whistnant was satisfied because there was a possibility that there was a lesser intent than intent to kill. Id. In Sivri, the defendant was convicted of murder on the basis of the presence of a large amount of the victim's blood in the defendant home. Id. The trial court refused to instruct the jury on lesser included offenses of homicide. Id., at 137-38, 646 A.2d 169. Our Supreme Court determined from the large amount of blood and the setting, a family room in a residence, that the jury could have reasonably inferred from the evidence that " 'there was a sudden or spontaneous incident' " that resulted in victim's unintended death. Id., at 139, 646 A.2d 169. Unlike in this case, the jury in Sivri reasonably could have inferred a lesser intent on the defendant's part on the basis of the lack of evidence as to intent. In this case, the state has provided sufficient evidence to support a finding of intent to kill while no evidence was offered that would justify conviction on the lesser offense. Accordingly, the third prong of Whistnant was not satisfied.
The defendant also failed to satisfy the fourth prong of Whistnant. "The fourth prong of Whistnant requires that we determine if the proof on intent that differentiates the lesser offense from the offense charged was sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." Id., at 139-40, 646 A.2d 169. In this case, the proof of intent came from an eyewitness who saw the defendant raise the gun to the victim's head before firing it. The testimony of the witness was not contradicted; moreover, it was buttressed by the evidence of the head injury suffered by the victim. We cannot say, therefore, that the proof of intent was sufficiently in dispute to permit the jury consistently to find the defendant not guilty of the attempted murder charge but guilty of reckless assault in the second degree. We conclude that the trial court's refusal to instruct on the lesser included offense was not improper.
The defendant next asserts that the trial court improperly interfered with the defendant's confrontation right to cross-examine the state's key witness. When the state objected to defense counsel's question concerning the witness' feelings on seeing the shooting, defense counsel claimed the question on the ground that the witness had "indicated some sort of infatuation with [the defendant] from a distance." The defendant now argues that when the trial court sustained the state's objection to a question concerning Ortiz' feelings about seeing someone suffer a gunshot, the court precluded the defendant from inquiring into the witness' ability to perceive the event accurately. This preclusion, the defendant argues, impeded the defendant's ability to cross-examine the state's witness and violated the defendant's sixth amendment confrontation right.
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